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In re Hicks

Supreme Court of Michigan

May 8, 2017

In re HICKS/BROWN, Minors.

          Argued on application for leave to appeal December 7, 2016.

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen.

         SYLLABUS

         The Department of Health and Human Services (the Department) petitioned the Wayne Circuit Court, Family Division, to terminate the parental rights of respondent, a person with an intellectual disability. The proceedings began on January 29, 2013, when the court took jurisdiction over respondent's infant daughter and instituted a service plan provided by the Department. Respondent gave birth to a son in February 2013, and the court took jurisdiction over him as well. For most of 2013, respondent appeared to have inconsistently participated in the services required by the plan, but respondent's attorney later alleged that the services did not meet respondent's needs. At a January 2014 hearing, respondent's attorney asked how respondent could obtain more individualized assistance, and on at least five occasions between August 2014 and the trial for termination of parental rights in July 2015, respondent's attorney asked about the Department's efforts to ensure that respondent was receiving services that accommodated her intellectual disability. Respondent's attorney had specifically requested services through a community mental health agency called the Neighborhood Service Organization (NSO), and the court ordered the Department to assist respondent in obtaining the requested NSO services; however, respondent never received these court-ordered services. On July 27, 2015, the court, Christopher D. Dingell, J., terminated respondent's parental rights to the two children, concluding that two grounds for termination were established and that termination was in the children's best interests. Respondent appealed in the Court of Appeals, arguing that the Department's reunification efforts had failed to accommodate her intellectual disability and that this failure should have prevented the termination of her parental rights. The Department and the children's lawyer-guardian ad litem argued that respondent did not timely raise the disability-based objection because In re Terry, 240 Mich.App. 14, 26 (2000), required that respondent raise the objection when the service plan was adopted or soon afterward. The Court of Appeals, Gleicher, P.J., and Cavanagh and Fort Hood, JJ., held that respondent had preserved her claim by objecting sufficiently in advance of the termination proceedings and that the termination order was premature because the Department had failed to provide respondent with reasonable accommodations and thus had failed to make reasonable efforts to reunify the family unit. 315 Mich.App. 251 (2016). The children's lawyer-guardian ad litem sought leave to appeal, and the Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 499 Mich. 982 (2016).

         In a unanimous opinion by Justice Larsen, the Supreme Court held:

         1. Under Michigan's Probate Code, MCL 710.21 et seq., the Department has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights. As part of these reasonable efforts, the Department must create a service plan outlining the steps that both the Department and the parent will take to rectify the issues that led to court involvement and to achieve reunification. Under the Americans with Disabilities Act (ADA), 42 USC 12132, the Department also has an obligation to ensure that no qualified individual with a disability is excluded from participation in or denied the benefits of the services of the Department. Additionally, under 28 CFR 35.130(b)(7) (2016), the Department must make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability unless the modifications would fundamentally alter the services provided. Absent reasonable modifications to the services or programs offered to a parent with a disability, the Department has failed in its duty under the ADA to reasonably accommodate a disability and thus has failed to comport with the requirement in MCL 712A.18f(3)(d) that the Department offer services designed to facilitate the child's return to his or her home, resulting in the Department's failure to make reasonable efforts at reunification under MCL 712A.19a(2). Efforts at reunification cannot be reasonable under the Probate Code if the Department has failed to modify its standard procedures in ways that are reasonably necessary to accommodate a disability under the ADA. However, before the Department can be required under the ADA to provide reasonable accommodations, the Department must have knowledge that the individual has a disability. In this case, it was clear that the Department had knowledge of respondent's disability; the record showed that the Department had knowledge of respondent's disability since at least January 2013. Therefore, the Department was required under the ADA to provide reasonable accommodations for respondent. Respondent's attorney had specifically requested services through the NSO, and the circuit court ordered that the Department provide those services for respondent, but the services were never provided. The circuit court erred by concluding that the Department had made reasonable efforts at reunification because the court did not conduct a complete analysis of whether reasonable efforts were made: the court did not consider the fact that the Department had failed to provide the court-ordered NSO services, nor did the court consider whether, despite this failing, the Department's efforts nonetheless complied with its statutory obligations to reasonably accommodate respondent's disability. The Court of Appeals correctly determined that termination of respondent's parental rights was improper without a finding of reasonable efforts. Remand was necessary for an analysis of whether the Department reasonably accommodated respondent's disability as part of its reunification efforts in light of the fact that respondent never received the court-ordered services.

         2. With regard to the Department's argument that respondent did not timely raise the disability-based objection, neither the Department nor the children's lawyer-guardian ad litem raised a timeliness concern in the circuit court, and the circuit court did not find the request untimely because the court granted the request and ordered the Department to assist respondent in obtaining the requested services. Therefore, there was no occasion to decide whether the objection was timely.

         3. The portion of the Court of Appeals' opinion outlining steps that courts and the Department "must" complete "when faced with a parent with a known or suspected intellectual, cognitive, or developmental impairment" was vacated because those steps would not necessarily be implicated in every disability case and because trial courts are in the best position to determine whether the steps taken by the Department in individual cases are reasonable.

         Affirmed in part; vacated in part; case remanded to the Wayne Circuit Court for further proceedings.

         BEFORE THE ENTIRE BENCH

          OPINION

          LARSEN, J.

         Respondent Brown is an intellectually disabled person whose parental rights to two children were terminated. Before a court may enter an order terminating parental rights, Michigan's Probate Code, MCL 710.21 et seq., requires a finding that the Department of Health and Human Services (the Department) has made reasonable efforts at family reunification. Brown argues that the Department's efforts at family reunification were not reasonable because they failed to reasonably accommodate her disability. This case presents two questions: whether Brown timely raised her claim for accommodation before the circuit court, and if so, whether the Department's efforts at family reunification were reasonable. For the reasons stated, we affirm in part the judgment of the Court of Appeals, vacate in part the opinion of the Court of Appeals, and remand this case to the Wayne Circuit Court for further proceedings consistent with this opinion.

         I

         In April 2012, respondent Brown brought her infant daughter to the Department, stating that she could not care for her. On April 10, the Wayne Circuit Court granted the Department's motion to place the child in protective custody. The court took jurisdiction over the daughter on January 29, 2013, and instituted a service plan provided by the Department.[1] At the time, ...


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