October 01, 2017

Reasonable Efforts Tailored to Mother’s Intellectual Disability Required before Terminating Parental Rights

Emily Peeler

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, 893 N.W.2d 637 (Mich. 2017).

The Connecticut Supreme Court, using statutory interpretation, held Commissioner of Children and Families is not authorized to vaccinate child placed temporarily in state custody over objection of child’s parents. Court examined statute’s use of “medical treatment” and concluded statute did not intend to authorize preventive medicine, including vaccines.  

The Connecticut Department of Children and Families (DCF) temporarily removed children after both their parents had been arrested using a 96-hour hold. During the initial removal, the mother gave DCF permission to have the children medically evaluated. After neglect allegations had been filed, the parents agreed to commit the children temporarily to the care and custody of DCF. At the initial trial hearing, the mother objected to vaccinating the children for common childhood diseases due to sincerely held religious beliefs. 

DCF provided evidence at trial about the medical importance of immunizations and how challenging it was to locate a physician who would treat unvaccinated children. The trial court relied on § 17a-10(c) and granted the DCF commissioner permission to vaccinate the children because the children were committed to the custody of DCF. Section 17a-10(c) states: “When deemed in the best interests of the child in the custody of the commissioner, the commissioner...may authorize, on the advice of a physician licensed to practice in the state, medical treatment, including surgery, to insure the continued good health or life of the child…” 

On appeal, the mother argued the commissioner was not authorized to vaccinate the children because “medical treatment” did not include vaccinations as contemplated by the statute. The Connecticut Supreme Court first looked at the text of the statute and the statute’s relationship to other statutes before looking to legislative history. The court looked at definitions of “treatment,” all of which indicate “treatment” is intended to remedy or cure an existing injury. This definition, read with the language “continued good health,” made the statute ambiguous. The court then looked at related statutes, noting they specifically mentioned both treatment and prevention. 

Finally, the court looked at the statute’s legislative history, finding that drafters and supporters of the bill directly linked the statute’s purpose to medical emergencies. The court found this history meant the statute only granted the commissioner limited authority to provide “medical treatment” during an emergency if and when a child’s parents could not be reached. Therefore, DCF lacks authority to vaccinate children in temporary custody without parental consent. 

Two judges concurred, agreeing the commissioner lacked authority to vaccinate because DCF did not have exclusive custody. The judges stated DCF’s custody is a guardianship shared jointly with the parents that requires balancing the child’s best interests and the parents’ right to make decisions about their children.

The Michigan Supreme Court found a child welfare agency’s required reunification efforts were not reasonable unless the agency modified services, as reasonably necessary, to accommodate parent’s disability. Court ruled termination of parental rights must have proper finding of reasonable efforts, which had not happened in this case.  

A mother with intellectual disabilities brought her infant to the Michigan Department of Health and Human Services (the Department) stating she could not care for her child. The mother was pregnant with another child, who was also placed with the Department after birth. The mother was provided a service plan in early 2013, which she participated in inconsistently. In 2014, the mother’s attorney made at least six requests for her to receive individualized assistance, five of which were specific services at a mental health agency to accommodate her intellectual disability. In 2015 the court terminated her parental rights. 

The mother claimed the Department’s reasonable efforts for reunification failed to accommodate her intellectual disability as required by the Americans with Disabilities Act (ADA). The Department argued the mother had waived any claim stemming from her disability because she did not object to the service plan when it was adopted or shortly after. 

The Michigan Supreme Court outlined the Department’s obligations under the ADA including 42 U.S.C. § 12132: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity…”. The ADA, in combination with 28 CFR § 35.130(b)(7) requiring reasonable modifications to avoid discrimination on the basis of disability, requires the Department to provide reasonable modifications to the services or programs offered to a disabled parent. The court found the Department failed in this duty to provide modifications and therefore may have failed to make reasonable efforts at reunification. 

The Michigan Supreme Court found the Department was aware of the mother’s disability and could not be passive in its approach to providing accommodations. When the mother’s attorney sought accommodating services, at least a year before termination, the Department did not object. The court therefore found the Department could not now complain the request for accommodations was untimely. 

The court held reunification efforts cannot be reasonable unless the Department modified its services as reasonably necessary to accommodate the mother’s disability before termination. In this case, the lower court’s analysis of reasonable efforts was incomplete so the court vacated the termination order and remanded the case for further consideration.