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.
Labels: American with Disabilities Act, Child Protective Proceedings, DHHS, michigan court of appeals, Reasonable Efforts, Wayne County
