June 01, 2016

Case Plan Must Provide Accommodations for Disabled Parent to Meet Reasonable Efforts Requirement

Eva J. Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re Hicks/Brown, 2016 WL 1650104 (Mich. Ct. App.).

Child welfare agency failed to make reasonable efforts to reunify family in case involving young, cognitively-impaired mother. After mother relinquished custody of her two-month-old daughter to the agency and later lost custody of her newborn son, her case plan never included reasonable accommodations to provide her a meaningful opportunity to improve. Dependency proceedings lasted more than three years and agency was aware of the mother’s special needs. Absent reasonable efforts, agency failed to present clear and convincing evidence to support the statutory grounds cited in the termination of parental rights petition. 

Psychological testing revealed that the mother of two children – a two-year-old daughter and a newborn son – was in the borderline range of intellectual functioning, and her other scores in verbal comprehension, perceptual reasoning, processing speed, and working memory were equally low. The mother lived with her own mother, who was also cognitively impaired. When she gave birth to her daughter, the mother had to find another place to live because her mother was living with a registered sex offender. The child welfare agency provided no services or assistance to the mother. Her daughter was taken into care when she declined placements with her grandmother in another state or a local family friend.

The mother’s first service plan was not developed until her daughter had been in care 10 months, during which time no services had been offered. She was required to undergo a psychological evaluation, participate in therapy and parenting classes, visit her daughter for three hours each week, earn her GED, and find employment and a home. Pregnant with her second child, the mother moved between homes of various relatives. When she gave birth to her son, an aunt offered the mother and baby a home but the agency found the placement inappropriate. Her son was taken into care and placed with his sister. 

More than three years after her son had been taken into care, during which time the child welfare agency provided no services appropriate for assisting a cognitively impaired parent, the agency filed a petition to terminate the mother’s parental rights. The petition stated she had never taken her GED, secured housing or income, or benefited from services so that she could safely parent her children.

The mother’s attorney had specifically expressed concern that the agency was not providing the services necessary to accommodate her disability, and continuously repeated her concerns. She requested the mother receive specialized services for the developmentally disabled, and the court ordered such services, but the caseworker failed to ensure those services would be provided. 

The appellate court relied on case law, federal and state statutes and regulations, and expert opinions to clarify what the trial court and the child welfare agency must do for a parent with a known or suspected intellectual, cognitive, or developmental disability. Neither the court nor the agency may just wait for the parent to assert his or her right to reasonable accommodations. Instead, the agency must offer evaluations to determine the nature and extent of the parent’s disability and secure recommendations for tailoring necessary reunification services. 

The agency must also try to locate service providers with expertise helping the parent overcome obstacles to reunification. If no appropriate, local service provider exists, the agency must ensure 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 the parent will only be able to safely care for his or her children in a supportive environment, the agency must search for potential relatives or friends willing and able to provide a home for the family. And if the agency does not fulfill these duties, the court must order compliance. 

If there is a delay providing the parent reasonably accommodated services or if the evidence shows the parent could safely care for his or her children within a reasonable time if services were continued, the court would not be required to order the filing of a termination petition because the child has been in foster care for 15 of the last 22 months. If reasonable accommodations are made but the parent still fails to show he or she can safely parent the child, the court may proceed to termination. Likewise, termination does not need to be delayed if careful evaluation reveals no level or type of services could possibly help the parent safely care for the child. But that assessment cannot be based on stereotypes or assumptions or an unwillingness to make the required effort to accommodate the parent’s needs.

In this case, the agency did not fulfill its responsibilities and the trial court failed to recognize that failing. The mother’s case plan did not match her abilities. She would likely never be able to read and comprehend the contents of a GED exam, hold down a job, or live independently. A service plan that ignored these realities was simply unreasonable and not individually tailored to her needs. The court acknowledged the mother might be unable to overcome the conditions that brought her children into care. However, reunification services were inadequate. As a result, the court vacated the termination order and remanded the case for reconsideration after the mother was provided necessary individualized services.