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The Court of Appeals (COA) vacated a trial court’s order terminating the parental rights of a cognitively impaired young woman due to the repeated failure of the DHHS to make reasonable efforts to reunify the family.

The facts of this case (In re Hicks/Brown, Minors (No. 328870) are disturbing. 

The mother/respondent (MR) of the Hicks/Brown children is cognitively impaired. She lived with her grandmother and her mother, also cognitively impaired, and her siblings. Grandmother died and when MR gave birth to her first child (DH), her mother threatened to evict her. In April, 2012, MR sought help from DHHS. The worker (Cordell Huckaby) spent time with the young mother trying to find relatives to provide a home, reporting that he thought respondent had some “untreated mental health issues.” The Department of Health and Human Services (DHHS) placed the child DH into care on an emergency basis.

Over the course of the next three years, the following occurred:

1. Due to the CPS and DHHS errors, MR was denied parenting time with her child until December, 2012; no services were provided.

2. In January, 2013 an adjudication trial was held and a service plan requiring MR to be psychologically evaluated, participate in therapy and parenting classes, visit her child 3 hours a week, earn her GED and find employment and a home was provided.  

3. The mother gave birth to her son, EB, on February 7, 2013. The hospital recommended MR should live in adult foster care. This was not done and MR moved to homeless shelter.

4. Psychological testing revealed the mother had a Full Scale IQ of 70, however, DHHS continued to provide services geared for a parent of average cognitive abilities.

5. MR moved to Cleveland to live with a relative

On June 18, 2015, more than three years after DH was placed in care, a supplemental petition seeking termination was filed. The petition cited the mother had not benefited from the services and could not parent her children. Despite the pleas of the mother’s attorney that reasonable efforts had not been made and that Mother’s current residence in Cleveland with a relative was not permanent, the court terminated the Mother’s parental rights.

Legal Background

The COA noted that parents have a “fundamental liberty interest in the care, custody and management of their children.” Courts have ruled that this right doesn’t evaporate simply because they haven’t been model parents. A court can terminate a parent’s rights, however, prior to that decision the DHHS must use reasonable efforts to keep the child in the parent’s care. Reasonable efforts are defined as those provided through a case service plan. Matters become more complicated when a parent is disabled, which can call into play the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act.

The ADA directs that disabilities be reasonably accommodated and if not done, then “it cannot be found that reasonable efforts were made to reunite the family.” According to the DHHS services manual, reasonable accommodations must be provided in each case and should be tailored to the individual needs of the parents and the children in each case. The COA reviewed Michigan case law, federal and state law and regulations and a number of expert opinions to clarify what courts and the DHHS must do when working with a parent of “known or suspected intellectual, cognitive or developmental impairment.”

It found that the DHHS must:

1. Provide evaluations to determine the extent of disability,

2. Secure recommendations for services needed to reunite the family,

3. Find the agencies that can provide the services,

4. If no agencies exist, those available must modify their programs to help the parent, and

5. If the parent needs a supportive environment in order to raise the children, a placement for the      whole family with relatives or friends must be found.

Courts, said the COA, must order compliance if the DHHS shirks its duties and if there is a delay in providing services or the evidence suggests the parent needs more time to learn to safely parent, the court won’t be required to order the filing of a termination petition simply because the child has been in foster care for 15 out of the past 22 months.

In re Hicks/Brown, Minors

The Court of Appeals (COA) vacated the termination decision in this case, stating that the DHHS didn’t fulfill its duties and the court failed to recognize that shortcoming. The COA reviewed the many failings of DHHS and the trial court in this case. Recognizing that MR may never be able to overcome her disabilities and parent her children, it still required that the matter be reopened and proper services be provided with the hope that the family could one day be reunited.

The Court of Appeals upheld the trial court decision to set aside the stepparent adoption of KJS due to the parties’ significant and positive fraud.

The facts of this case (In re KJS, Minor, No.330722) are simple.

KJS was born in the Republic of the Philippines. His parents never married. Petitioner-mother met respondent online. They were married in a religious ceremony. After the mother received a fiancé visa for herself and a green card for KJS, they came to the United States. The couple were legally married in the US in 2013.

The parents filed a petition for a stepparent adoption; court officials conducted an investigation and the adoption was approved on November 18, 2015. The parents were pleased, hopeful that the adoption would accelerate KJS’s American citizenship process.

The next day, the parties argued. Eventually, petitioner-mother sent three e-mails to the trial court that granted the adoption asking that the adoption be set aside. She stated that respondent step-father was abusive, wouldn’t go to marriage counseling and wanted full custody of KJS. The court treated the e-mails as a petition for a re-hearing and set a hearing for December 9, 2015.

In the meantime, respondent filed for divorce. He received an order granting him the home and full custody of KJS. At the December 9^th hearing in the adoption matter, the respondent asked for more time because he wasn’t prepared for a full hearing. The court denied his request and proceeded with the hearing.

The parties testified describing a history of conflict and domestic abuse. Petitioner said that the respondent didn’t ask for a divorce until the adoption was finalized. When asked if they told the court officers who conducted the pre-adoption study of their volatile relationship, they said “no.”

The court sets aside the adoption

Following the hearing, the court set aside the adoption. The court stated that the purpose of a stepparent adoption was to “create a cohesive family unit for a child” and that a stable relationship was required for the court to approve an adoption. The court noted that the parties presented themselves as a loving couple and if the true nature of the relationship had been known, the adoption would not have been approved.

Respondent appeals the order vacating his stepparent adoption.

Respondent raised some procedural issues, which the Court of Appeals (COA) denied. The respondent also argued that the trial court was wrong when it concluded that the parties committed fraud in securing the adoption.

The COA disagreed upholding the lower court decision, finding:

1)  Although good cause is required to hold a rehearing to vacate an adoption, there is no standard for the actual order to vacate. The statute (MCL 710.64 (A) simply states the judge may set aside the order of adoption.

2)  Case law supports the use of fraud as grounds to vacate an adoption.

3)  Because courts are reluctant to set aside an adoption, the fraud must be significant and positive.

The fraud is this case was significant, positive fraud.

The COA looked to the purpose of the stepparent adoption statute to determine if the fraud in this case was significant and positive. The statute was enacted to “allow the creation of a two-parent family where one did not exist before,” which is grounded on a marriage between the biological custodial parent and the stepparent.

The facts showed that the parents didn’t intend to remain married or create a two-parent family for KJS. Both parties agreed that the relationship was volatile. Respondent also challenged the petitioner’s motives seeking the adoption because the filing of the petition coincided with the removal of conditions on the petitioner’s green card. The evidence in this case shows that the parties didn’t intend to create a two-parent family for KJS, which constitutes fraud.

A best-interests finding is not necessary at rehearing.

In response to respondent’s argument that the court abused its discretion by setting aside the adoption without making best interests findings. The COA disagreed stating that Michigan case law allows a trial court to decide whether to make the best-interests findings in a rehearing.

Because of the above reasons, the COA upheld the trial court’s decision to set-aside the adoption.