Department of Health and Human Services failed to accommodate disabilities by using a one-size-fits-all family reunification plan, says MSC

The Department of Health and Human Services may not use a one-size-fit-all family plan when attempting to reunify families in probate matters, said the Michigan Supreme Court in In re Hicks, No. 15378. Specifically, the Court held that the Department has not complied with its duty to make reasonable efforts at family reunification when it fails to modify its services to reasonably accommodate a parent with a disability.

In this probate case, respondent Brown, a person with an intellectual disability, brought her infant daughter to the Department in April 2012, stating that she could not care for her. As a result, Brown’s daughter and a son Brown later gave birth to were placed in protective custody. The Wayne Circuit Court took jurisdiction over the children in January 2013 and instituted a service plan provided by the Department. Among other things, the plan required Brown to participate in parenting classes, complete high school or obtain a GED, and attend individual counseling sessions. For most of 2013, Brown inconsistently participated in the services required by the plan, reasoning that the services did not meet her needs. At a January 2014 hearing, Brown, by way of her attorney, sought modification of the plan to accommodate her intellectual disability. Brown inquired about such accommodations five additional times following the hearing. However, the Department never provided such services. In June of 2015, the Department filed a petition to terminate Brown’s parental rights to her children, and the circuit court granted the petition, finding termination to be in the best interests of the children.

On appeal, Brown argued that the Department’s reunification efforts failed to accommodate her intellectual disability as required by the American with Disabilities Act (“ADA”), and that this failure should have prevented the termination of parental rights. The Department argued that Brown waived any claim stemming from her disability because she had not raised her objection when the service plan was adopted as required by law. The Michigan Court of Appeals rejected the Department’s argument, reasoning that Brown’s claim was preserved when she repeatedly inquired about accommodations to the Department’s plan. On the merits, the Court of Appeals concluded that by failing to make reasonable accommodations to its service plan for Brown’s disability, the Department failed to make reasonable efforts to reunify the family unit as required by Michigan’s Probate Code. The court further concluded that when faced with a parent with a known or suspected disability, the Department must modify its reunification service plan to accommodate the parent. Accordingly, the Court of Appeals concluded that the circuit court’s termination order was premature.

On leave to appeal, the Michigan Supreme Court affirmed the Court of Appeals’ decision to vacate the termination order. As a preliminary issue, the Court treated Brown’s accommodation claim as timely, reasoning that the Department failed to raise the issue with the circuit court. On the merits, the Court held that efforts at reunification cannot be reasonable if the Department has failed to modify its standard procedures in ways that are reasonably necessary to accommodate under the ADA. In this case, the Court found that the Department knew about Brown’s disability by way of Brown requesting accommodations for it during probate hearings. Because the Department was aware of the disability, it had a duty under the ADA to accommodate Brown by modifying its service plans. The Court found that the circuit court erred in overlooking the Department’s failure to provide such services when it terminated Brown’s parental rights. Accordingly, the Court affirmed the Court of Appeals’ decision to vacate the termination order.

At the same time, the Michigan Supreme Court vacated the Court of Appeals’ opinion with respect to the prescribed measures the Department must take when it knows a parent has a disability. The Court reasoned that accommodations may not be necessary in every case involving a person with a disability, and if accommodations are necessary, the trial court is in the best position to decide what measures should be taken to accommodate a parent with a disability.