The Michigan Appellate Court recently issued a landmark decision on the rights of parents with disabilities in In re Hicks/Brown 2016 WL 1650104 (Mich. App. April 26, 2016). The court reversed a termination of parental rights decision after finding that the Michigan Child Welfare agency had failed to make either reasonable efforts under child welfare statutes or reasonable accommodations under the Americans with Disabilities Act. The case involved a parent with significant cognitive disabilities. The court found that the agency either knew or should have known about the disabilities from the beginning of the case. It failed to appropriately assess the disabilities, improperly created a "no visit" case plan for a period of time, failed in other ways to create an appropriate case plan, and failed to assist the parent with arranging for services that were appropriate to her. All of these deficiencies led to the court finding that the termination of the mother's parental rights needed to be vacated.
The court's decision based its ruling on federal and Michigan child welfare and disability law and utilized cases from other jurisdictions. It also cited extensively to Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children, National Council on Disability (September 27, 2012), and a number of other journal articles and position papers. These articles and the court's analysis of federal regulations and statutes are essential reading for all child advocates.
The court summed up its ruling in strikingly clear language—language that has the potential for establishing a roadmap for such cases in other jurisdictions.
We take this opportunity to clarify what a court and the (child welfare agency/DHHS) must do when faced with a parent with a known or suspected intellectual, cognitive, or developmental impairment. In such situations, neither the court nor the DHHS may sit back and wait for the parent to assert his or her right to reasonable accommodations. Rather, the DHHS must offer evaluations to determine the nature and extent of the parent's disability and to secure recommendations for tailoring necessary reunification services to the individual. The DHHS must then endeavor to locate agencies that can provide services geared toward assisting the parent to overcome obstacles to reunification. If no local agency catering to the needs of such individuals exists, the DHHS must ensure that the available service providers modify or adjust their programs to allow the parent an opportunity to benefit equal to that of a nondisabled parent. If it becomes clear that the parent will only be able to safely care for his or her children in a supportive environment, the DHHS must search for potential relatives or friends willing and able to provide a home for all. And if the DHHS shirks these duties, the circuit court must order compliance.
Practice Tip: What if your state court, unlike Michigan, does not allow the court to order services post-disposition? Not all states do. For example, how can an attorney utilize Hicks in a state where the juvenile court statute prohibits court orders for specific services, but provides that a court may order a new case plan when the existing one is not reasonably calculated to achieve the permanency goal? The answer is straightforward. Use the language from the Michigan decision and change the last phrase. If the child welfare agency shirks the duties outlined in Hicks, the court should find that the agency has not made reasonable efforts and order a new case plan which provides for the kinds of efforts ordered in Hicks.