In re Hicks/Brown

• Decision Date: 08 May 2017
• Docket Number: No. 153786,153786
• Citation: 893 N.W.2d 637
• Parties: IN RE HICKS/BROWN, Minors.
• Court: Michigan Supreme Court

893 N.W.2d 637

IN RE HICKS/BROWN, Minors.

No. 153786

Supreme Court of Michigan.

Argued December 7, 2016
Decided May 8, 2017

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, Brown was pregnant with a son. After he was born in February 2013, the court took jurisdiction over him as well.

For most of 2013, Brown appears to have inconsistently participated in the services required by the plan, but her attorney later argued that the services did not meet her needs. At a January 2014 hearing,

893 N.W.2d 639

Brown's attorney asked how her client could obtain more individualized assistance. On at least five occasions between August 2014 and the trial for termination of parental rights in July 2015, Brown's attorney inquired about the Department's efforts to ensure that her client receive services through a community mental health agency called the Neighborhood Services Organization (NSO) to accommodate her intellectual disability. Brown never received these services.

On June 18, 2015, the Department filed a petition to terminate Brown's parental rights to both children, alleging three grounds for termination.² On July 27, 2015, the circuit court granted the petition, finding that two grounds for termination had been established³ and that termination was in the children's best interests.

Brown sought relief in the Court of Appeals, arguing that the Department's reunification efforts had failed to accommodate her intellectual disability as required by the Americans with Disabilities Act (ADA), 42 USC 12101 et seq ., 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 Brown had waived any claim stemming from her disability because she had not raised her objection "when [the] service plan [was] adopted or soon afterward." See In re Terry , 240 Mich.App. 14, 26, 610 N.W.2d 563 (2000). The Court of Appeals panel rejected this argument, holding that Brown had preserved her claim by objecting sufficiently in advance of the termination proceedings to comply with Terry 's preservation requirements. In re Hicks , 315 Mich.App. 251, 269–271, 890 N.W.2d 696 (2016). On the merits, the panel concluded that because "the case service plan never included reasonable accommodations to provide respondent a meaningful opportunity to benefit," the Department had "failed in its statutory duty to make reasonable efforts to reunify the family unit." Id . at 255, 890 N.W.2d 696. Any termination order was therefore premature. Id . at 286, 890 N.W.2d 696.

The children's lawyer-guardian ad litem sought leave to appeal in this Court. We ordered oral argument on the application. In re Hicks/Brown , 499 Mich. 982, 882 N.W.2d 136 (2016).

II

Under Michigan's Probate Code, the Department has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights. MCL 712A.18f(3)(b) and (c) ; MCL 712A.19a(2).⁴ As part of these reasonable efforts, the Department must create a service plan outlining the steps that both it and the parent will take to rectify the issues that led to court involvement and to achieve reunification. MCL 712A.18f(3)(d) (stating that the service plan shall include a "[s]chedule of services to be provided to

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the parent ... to facilitate the child's return to his or her home").

The Department also has obligations under the ADA that dovetail with its obligations under the Probate Code. Title II of the ADA requires that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C 12132. Public entities, such as 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 service" provided. 28 CFR 35.130(b)(7) (2016).

Absent reasonable modifications to the services or programs offered to a disabled parent, the Department has failed in its duty under the ADA to reasonably accommodate a disability. In turn, the Department has failed in its duty under the Probate Code to offer services designed to facilitate the child's return to his or her home, see MCL 712A.18f(3)(d), and has, therefore, failed in its duty to make reasonable efforts at reunification under MCL 712A.19a(2). As a result, we conclude that 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. The Department seems to agree. See the Department's Supplemental Brief, p. 19, quoting Michigan Department of Health and Human Services, Children's Foster Care Manual , FOM 722–06F...