In re Hicks
Docket No. 153786
Trial-lawyers’ bottom line: If parent has a disability, HHS must establish a service plan that accommodates the parent’s disability.
Ms. Brown is mentally disabled. In 2012, she brought her infant daughter to the Department of Health and Human Services. The Department moved to place the child in protective custody, and the Wayne County Circuit Court took jurisdiction, instituting a service plan provided by the Department. Brown later gave birth to a son, who the court took jurisdiction over him in 2013.
During 2013, Brown’s attorney argued that the Department’s services did not meet her needs as a disabled person. Through 2014 and much of 2015, Brown’s attorney sought services to accommodate Brown’s intellectual disability. She never received them. And in 2015, the Department filed a petition to terminate her parental rights, which the Court of Appeals granted.
The Court of Appeals gave short shrift to the Department’s argument that Brown waived her claim by failing to object to the service plan when it was adopted. The Court of Appeals then ruled that the Department failed to provide a service plan that accommodated Brown’s disability. The Supreme Court granted the children’s guardian ad litem leave to appeal. The questions were (1) whether Brown timely raised her claim for accommodation; and (2) whether the Department’s efforts at family reunification were reasonable—as required by statute.
Michigan’s Probate Code requires the Department to make reasonable efforts to reunify a family before seeking termination of parental rights. See MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). The Court pointed out that the Americans with Disabilities Act required the Department to make reasonable modifications to accommodate Brown’s disability. The Court held that the Department failed to fulfill its duty under the ADA and thus also failed to fulfill its duty under the Michigan Probate code.
The Court stated: “once the department knew of the disability, its affirmative duty to make reasonable efforts at reunification meant that it could not be passive in its approach . . . as far as the provision of accommodations is concerned.” The Department and the children’s guardian ad litem argued that the categorical rule from dictum in In re Terry, 240 Mich. App. 14 (Mich. 2000), which requires an objection to service plan to be raised “either when a service plan is adopted or soon after.” The Court, although “skeptical of this categorical rule,” did not answer the question because neither the Department nor the children’s guardian ad-litem raised this concern in the circuit court.
The Court concluded: “As stated earlier, efforts at reunification cannot be reasonable under the Probate Code unless the Department modifies its services as reasonably necessary to accommodate a parent’s disability.” Thus, the Court vacated the termination order.
Full opinion here.