The Court of Appeals 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.