13.8Reasonable Efforts Under the Americans With Disabilities Act (ADA)

A.Reasonable Accommodations Requirement

“When a disabled parent is a party to child protective proceedings, Section 504 of the Rehabilitation Act of 1973, 29 USC 794, and Title II of the Americans with Disabilities Act of 1990 (ADA), 42 USC 12131 et seq., control the nature of the services that must be provided. Title II of the ADA provides that ‘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, or be subjected to discrimination by any such entity.’ 42 USC 12132. Section 504 of the Rehabilitation Act similarly provides that qualified disabled persons shall not ‘be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance’ ‘solely by reason of her or his disability.’ 29 USC 794(a).” In re Hicks (Hicks I), 315 Mich App 251, 266 (2016), aff’d in part, vacated in part on other grounds by In re Hicks (Hicks II), 500 Mich 79 (2017).¹

The Department of Health and Human Services (DHHS), as a public agency, must make reasonable accommodations for disabled individuals when providing family reunification services and programs. In re Terry, 240 Mich App 14, 25 (2000). “[I]f the [DHHS] fails to take into account the parents’ limitations or disabilities and make any reasonable accommodations, then it cannot be found that reasonable efforts were made to reunite the family.” Id. at 26. “Absent reasonable modifications to the services or programs offered to a disabled parent, the [DHHS] has failed in its duty under the ADA to reasonably accommodate a disability[,] . . . has failed in its duty under the Probate Code to offer services designed to facilitate the child’s return to his or her home, see MCL 712A.18f(3)(d), and has, therefore, failed in its duty to make reasonable efforts at reunification under MCL 712A.19a(2)[;] . . . efforts at reunification cannot be reasonable under the Probate Code if the [DHHS] has failed to modify its standard procedures in ways that are reasonably necessary to accommodate a disability under the ADA.” In re Hicks (Hicks II), 500 Mich 79, 86, 88 n 6 (2017) (aff’g in part and vacating in part on other grounds In re Hicks (Hicks I), 315 Mich App 251 (2016), and noting that “[w]hile the Court of Appeals reasonably identified measures the [DHHS] should consider when determining how to reasonably accommodate a disabled individual, . . . these steps will [not] necessarily be implicated in every disability case”).

A respondent who claims that services offered “were not appropriate given [their] intellectual disability” must identify other “services that would have been appropriate in light of such disability,” and how the respondent would have attained better results if the DHHS had offered the respondent other services. In re Sanborn, 337 Mich App 252, 266-267 (2021).

B.Violation of ADA Not a Defense to Termination of Parental Rights Proceedings

Because termination of parental rights proceedings does not constitute “‘services, programs or activities’ within the meaning of 42 USC 12132[,] . . . a parent may not raise violations of the [Americans with Disabilities Act] (ADA)[, 42 USC 12101 et seq.,] as a defense to termination of parental rights proceedings.” In re Terry, 240 Mich App 14, 25 (2000).

C.Must Timely Raise Violation of ADA

To be considered by the family court, claims that the DHHS violated the ADA must be raised in a timely manner:

“[I]f a parent believes that the [DHHS] is unreasonably refusing to accommodate a disability, the parent should claim a violation of [his or] her rights under the ADA, either when a service plan is adopted or soon afterward. The court may then address the parent’s claim under the ADA. Where a disabled person fails to make a timely claim that the services provided are inadequate to [his or] her particular needs, [he or] she may not argue that petitioner failed to comply with the ADA at a dispositional hearing regarding whether to terminate [his or] her parental rights. In such a case, [his or] her sole remedy is to commence a separate action for discrimination under the ADA. At the dispositional hearing, the family court’s task is to determine, as a question of fact, whether petitioner made reasonable efforts to reunite the family, without reference to the ADA.” In re Terry, 240 Mich App at 26.

The Michigan Supreme Court noted that it was “skeptical of [the] categorical rule[]” set out in In re Terry, 240 Mich App at 26, “that objections to a service plan are always untimely if not raised ‘either when a service plan is adopted or soon afterward[;]’” however, the Court declined “to decide whether the [respondent-mother’s] objection . . . was timely because neither the [DHHS] nor the children’s lawyer-guardian ad litem raised a timeliness concern in the circuit court.” In re Hicks (Hicks II), 500 Mich 79, 88, 89 (2017) (holding that because “the [DHHS] and the circuit court operated as if [the respondent’s] request [for accommodation] had been timely[,] the [DHHS could not] . . . complain otherwise[]” on appeal).