                                                                                      Michigan Supreme Court
                                                                                            Lansing, Michigan




Syllabus
                                                                Chief Justice:         Justices:
                                                                Stephen J. Markman     Brian K. Zahra
                                                                                       Bridget M. McCormack
                                                                                       David F. Viviano
                                                                                       Richard H. Bernstein
                                                                                       Joan L. Larsen

This syllabus constitutes no part of the opinion of the Court but has been             Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.               Kathryn L. Loomis



                                                In re HICKS

             Docket No. 153786. Argued on application for leave to appeal December 7, 2016.
       Decided May 8, 2017.

               The Department of Health and Human Services (the Department) petitioned the Wayne
       Circuit Court, Family Division, to terminate the parental rights of respondent, a person with an
       intellectual disability. The proceedings began on January 29, 2013, when the court took
       jurisdiction over respondent’s infant daughter and instituted a service plan provided by the
       Department. Respondent gave birth to a son in February 2013, and the court took jurisdiction
       over him as well. For most of 2013, respondent appeared to have inconsistently participated in
       the services required by the plan, but respondent’s attorney later alleged that the services did not
       meet respondent’s needs. At a January 2014 hearing, respondent’s attorney asked how
       respondent could obtain more individualized assistance, and on at least five occasions between
       August 2014 and the trial for termination of parental rights in July 2015, respondent’s attorney
       asked about the Department’s efforts to ensure that respondent was receiving services that
       accommodated her intellectual disability. Respondent’s attorney had specifically requested
       services through a community mental health agency called the Neighborhood Service
       Organization (NSO), and the court ordered the Department to assist respondent in obtaining the
       requested NSO services; however, respondent never received these court-ordered services. On
       July 27, 2015, the court, Christopher D. Dingell, J., terminated respondent’s parental rights to the
       two children, concluding that two grounds for termination were established and that termination
       was in the children’s best interests. Respondent appealed in the Court of Appeals, arguing that
       the Department’s reunification efforts had failed to accommodate her intellectual disability and
       that this failure should have prevented the termination of her parental rights. The Department
       and the children’s lawyer-guardian ad litem argued that respondent did not timely raise the
       disability-based objection because In re Terry, 240 Mich App 14, 26 (2000), required that
       respondent raise the objection when the service plan was adopted or soon afterward. The Court
       of Appeals, GLEICHER, P.J., and CAVANAGH and FORT HOOD, JJ., held that respondent had
       preserved her claim by objecting sufficiently in advance of the termination proceedings and that
       the termination order was premature because the Department had failed to provide respondent
       with reasonable accommodations and thus had failed to make reasonable efforts to reunify the
       family unit. 315 Mich App 251 (2016). The children’s lawyer-guardian ad litem sought leave to
       appeal, and the Supreme Court ordered and heard oral argument on whether to grant the
       application or take other action. 499 Mich 982 (2016).
       In a unanimous opinion by Justice LARSEN, the Supreme Court held:

        1. Under Michigan’s Probate Code, MCL 710.21 et seq., the Department has an
affirmative duty to make reasonable efforts to reunify a family before seeking termination of
parental rights. As part of these reasonable efforts, the Department must create a service plan
outlining the steps that both the Department and the parent will take to rectify the issues that led
to court involvement and to achieve reunification. Under the Americans with Disabilities Act
(ADA), 42 USC 12132, the Department also has an obligation to ensure that no qualified
individual with a disability is excluded from participation in or denied the benefits of the services
of the Department. Additionally, under 28 CFR 35.130(b)(7) (2016), the Department must make
reasonable modifications in policies, practices, or procedures when the modifications are
necessary to avoid discrimination on the basis of disability unless the modifications would
fundamentally alter the services provided. Absent reasonable modifications to the services or
programs offered to a parent with a disability, the Department has failed in its duty under the
ADA to reasonably accommodate a disability and thus has failed to comport with the
requirement in MCL 712A.18f(3)(d) that the Department offer services designed to facilitate the
child’s return to his or her home, resulting in the Department’s failure to make reasonable efforts
at reunification under MCL 712A.19a(2). Efforts at reunification cannot be reasonable under the
Probate Code if the Department has failed to modify its standard procedures in ways that are
reasonably necessary to accommodate a disability under the ADA. However, before the
Department can be required under the ADA to provide reasonable accommodations, the
Department must have knowledge that the individual has a disability. In this case, it was clear
that the Department had knowledge of respondent’s disability; the record showed that the
Department had knowledge of respondent’s disability since at least January 2013. Therefore, the
Department was required under the ADA to provide reasonable accommodations for respondent.
Respondent’s attorney had specifically requested services through the NSO, and the circuit court
ordered that the Department provide those services for respondent, but the services were never
provided. The circuit court erred by concluding that the Department had made reasonable efforts
at reunification because the court did not conduct a complete analysis of whether reasonable
efforts were made: the court did not consider the fact that the Department had failed to provide
the court-ordered NSO services, nor did the court consider whether, despite this failing, the
Department’s efforts nonetheless complied with its statutory obligations to reasonably
accommodate respondent’s disability. The Court of Appeals correctly determined that
termination of respondent’s parental rights was improper without a finding of reasonable efforts.
Remand was necessary for an analysis of whether the Department reasonably accommodated
respondent’s disability as part of its reunification efforts in light of the fact that respondent never
received the court-ordered services.

        2. With regard to the Department’s argument that respondent did not timely raise the
disability-based objection, neither the Department nor the children’s lawyer-guardian ad litem
raised a timeliness concern in the circuit court, and the circuit court did not find the request
untimely because the court granted the request and ordered the Department to assist respondent
in obtaining the requested services. Therefore, there was no occasion to decide whether the
objection was timely.

      3. The portion of the Court of Appeals’ opinion outlining steps that courts and the
Department “must” complete “when faced with a parent with a known or suspected intellectual,
cognitive, or developmental impairment” was vacated because those steps would not necessarily
be implicated in every disability case and because trial courts are in the best position to
determine whether the steps taken by the Department in individual cases are reasonable.

       Affirmed in part; vacated in part; case remanded to the Wayne Circuit Court for further
proceedings.




                                  ©2017 State of Michigan
                                                                        Michigan Supreme Court
                                                                              Lansing, Michigan




OPINION
                                                   Chief Justice:         Justices:
                                                   Stephen J. Markman     Brian K. Zahra
                                                                          Bridget M. McCormack
                                                                          David F. Viviano
                                                                          Richard H. Bernstein
                                                                          Joan L. Larsen


                                                                    FILED May 8, 2017



                           STATE OF MICHIGAN

                                 SUPREME COURT


In re HICKS/BROWN, Minors.
                                                             No. 153786




BEFORE THE ENTIRE BENCH

LARSEN, J.
      Respondent Brown is an intellectually disabled person whose parental rights to

two children were terminated. Before a court may enter an order terminating parental

rights, Michigan’s Probate Code, MCL 710.21 et seq., requires a finding that the

Department of Health and Human Services (the Department) has made reasonable efforts

at family reunification.   Brown argues that the Department’s efforts at family

reunification were not reasonable because they failed to reasonably accommodate her

disability. This case presents two questions: whether Brown timely raised her claim for

accommodation before the circuit court, and if so, whether the Department’s efforts at

family reunification were reasonable. For the reasons stated, we affirm in part the
judgment of the Court of Appeals, vacate in part the opinion of the Court of Appeals, and

remand this case to the Wayne Circuit Court for further proceedings consistent with this

opinion.

                                             I

       In April 2012, respondent Brown brought her infant daughter to the Department,

stating that she could not care for her. On April 10, the Wayne Circuit Court granted the

Department’s motion to place the child in protective custody. The court took jurisdiction

over the daughter on January 29, 2013, and instituted a service plan provided by the

Department. 1 At the time, Brown was pregnant with a son. After he was born in

February 2013, the court took jurisdiction over him as well.

       For most of 2013, Brown appears to have inconsistently participated in the

services required by the plan, but her attorney later argued that the services did not meet

her needs. At a January 2014 hearing, Brown’s attorney asked how her client could

obtain more individualized assistance. On at least five occasions between August 2014

and the trial for termination of parental rights in July 2015, Brown’s attorney inquired

about the Department’s efforts to ensure that her client receive services through a




1
  The plan required Brown to participate in and benefit from parenting classes, attend
individual counseling sessions, visit her daughter in a supervised setting, remain in
regular contact with the Department, complete high school or obtain a GED, find a
suitable home, find a legal source of income, and attend a clinic that would evaluate her
sociological and psychological ability to care for a child. The Department’s treatment
plan included a goal that Brown would “obtain the intellectual capacity to fully be able to
care for herself and her daughter.”



                                            2
community mental health agency called the Neighborhood Services Organization (NSO)

to accommodate her intellectual disability. Brown never received these services.

       On June 18, 2015, the Department filed a petition to terminate Brown’s parental

rights to both children, alleging three grounds for termination. 2 On July 27, 2015, the

circuit court granted the petition, finding that two grounds for termination had been

established 3 and that termination was in the children’s best interests.

       Brown sought relief in the Court of Appeals, arguing that the Department’s

reunification efforts had failed to accommodate her intellectual disability as required by

the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and that this failure

should have prevented the termination of her parental rights. The Department and the

children’s lawyer-guardian ad litem argued that Brown had waived any claim stemming

from her disability because she had not raised her objection “when [the] service plan

[was] adopted or soon afterward.” See In re Terry, 240 Mich App 14, 26; 610 NW2d 563

(2000). The Court of Appeals panel rejected this argument, holding that Brown had

preserved her claim by objecting sufficiently in advance of the termination proceedings to

comply with Terry’s preservation requirements. In re Hicks, 315 Mich App 251, 269-


2
  The petition alleged that (1) the conditions leading to adjudication continued to exist,
and there was no reasonable likelihood that the conditions would be rectified within a
reasonable time, MCL 712A.19b(3)(c)(i); (2) respondent failed to provide proper care or
custody for the children, and there was no reasonable expectation that she would be able
to provide proper care or custody within a reasonable time, MCL 712A.19b(3)(g); and (3)
there was a reasonable likelihood that the children would be harmed if returned to the
home of respondent, MCL 712A.19b(3)(j).
3
 The judge found grounds for termination under MCL 712A.19b(3)(c)(i) and
MCL 712A.19b(3)(g). The judge did not rule regarding MCL 712A.19b(3)(j).



                                              3
271; 890 NW2d 696 (2016). On the merits, the panel concluded that because “the case

service plan never included reasonable accommodations to provide respondent a

meaningful opportunity to benefit,” the Department had “failed in its statutory duty to

make reasonable efforts to reunify the family unit.” Id. at 255. Any termination order

was therefore premature. Id. at 286.

       The children’s lawyer-guardian ad litem sought leave to appeal in this Court. We

ordered oral argument on the application. In re Hicks/Brown, 499 Mich 982 (2016).

                                               II

       Under Michigan’s Probate Code, the Department has an affirmative duty to make

reasonable efforts to reunify a family before seeking termination of parental rights. MCL

712A.18f(3)(b) and (c); MCL 712A.19a(2). 4 As part of these reasonable efforts, the

Department must create a service plan outlining the steps that both it and the parent will

take to rectify the issues that led to court involvement and to achieve reunification. MCL

712A.18f(3)(d) (stating that the service plan shall include a “[s]chedule of services to be

provided to the parent . . . to facilitate the child’s return to his or her home”).

       The Department also has obligations under the ADA that dovetail with its

obligations under the Probate Code. Title II of the ADA requires 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.

4
 There are certain enumerated exceptions to this rule, see MCL 712A.19a(2), none of
which apply to this case.



                                               4
Public entities, such as the Department, must make “reasonable modifications in policies,

practices, or procedures when the modifications are necessary to avoid discrimination on

the basis of disability, unless . . . the modifications would fundamentally alter . . . the

service” provided. 28 CFR 35.130(b)(7) (2016).

       Absent reasonable modifications to the services or programs offered to a disabled

parent, the Department has failed in its duty under the ADA to reasonably accommodate

a disability. In turn, the Department 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).          As a result, we conclude that efforts at

reunification cannot be reasonable under the Probate Code if the Department has failed to

modify its standard procedures in ways that are reasonably necessary to accommodate a

disability under the ADA. The Department seems to agree. See the Department’s

Supplemental Brief, p 19, quoting Michigan Department of Health and Human Services,

Children’s Foster Care Manual, FOM 722-06F (2016) (“[W]here a parent is suffering

from a disability, the Department recognizes as a matter of policy and federal law that it

must ‘make all programs and services available and fully accessible to persons with

disabilities.’ . . . [I]n a case with a disabled parent, the Department’s obligation to make

reasonable accommodations for the disabled parent will be a part of the statutory duty to

make ‘reasonable efforts’ unless one of the enumerated exceptions apply.”).

       The Department, of course, cannot accommodate a disability of which it is

unaware. See Robertson v Las Animas Co Sheriff’s Dep’t, 500 F3d 1185, 1196 (CA 10,

2007) (“[B]efore a public entity can be required under the ADA to provide [reasonable


                                             5
accommodations], the entity must have knowledge that the individual is disabled, either

because that disability is obvious or because that individual (or someone else) has

informed the entity of the disability.”). In the instant case, however, it is clear that the

Department knew of Brown’s disability. 5 Once the Department knew of the disability, its

affirmative duty to make reasonable efforts at reunification meant that it could not be

“passive in [its] approach . . . as far as the provision of accommodations is concerned.”

Pierce v Dist of Columbia, 128 F Supp 3d 250, 269 (D DC, 2015). 6

5
  The Department’s January 2013 treatment plan included a goal that Brown would
“obtain the intellectual capacity to fully be able to care for herself and her daughter.” At
a preliminary hearing the following month, a Department caseworker observed that
Brown had barriers to overcome, including emotional and cognitive impairments. The
Department’s initial service plan in her son’s case, dated March 2013, noted that Brown
“appear[ed] to have some intellectual impairments” and that she struggled to understand
complex tasks and terms. A functional assessment conducted in April 2013 by the
Wayne County Department of Children and Family Services concluded that Brown had a
“moderate to severe” cognitive performance problem, noting that she had impaired
judgment. And a psychological assessment conducted the following month described
Brown’s “immediately observ[able]” cognitive defects and reported that she had an IQ of
70, within the borderline of intellectual functioning. A court-ordered psychiatric
evaluation concluded, in an apparent recognition of Brown’s cognitive disability, that she
could benefit from receiving services through a community mental health agency. Thus,
the record shows that the Department had knowledge of Brown’s disability since at least
January 2013.
6
  We agree with the Court of Appeals that the Department had an affirmative duty to
accommodate Brown’s disability. We disagree, however, with its prescription of steps
that courts and the Department “must” complete “when faced with a parent with a known
or suspected intellectual, cognitive, or developmental impairment.” In re Hicks, 315
Mich App at 281-282. While the Court of Appeals reasonably identified measures the
Department should consider when determining how to reasonably accommodate a
disabled individual, we do not believe these steps will necessarily be implicated in every
disability case. Trial courts are in the best position, in the first instance, to determine
whether the steps taken by the Department in individual cases are reasonable.
Accordingly, we vacate this portion of the Court of Appeals’ opinion.



                                             6
       The Department and the children’s lawyer-guardian ad litem argue that Brown did

not timely raise in the circuit court her disability-based objection and that she has

therefore forfeited that argument on appeal. Relying on dictum in Terry, 7 they argue that

objections to a service plan are always untimely if not raised “either when a service plan

is adopted or soon afterward.” Terry, 240 Mich App at 26. With the exception of the

panel below, the Court of Appeals has treated this language as the rule since the Terry

decision. 8 While skeptical of this categorical rule, 9 we have no occasion to decide

whether the objection in this case was timely because neither the Department nor the

children’s lawyer-guardian ad litem raised a timeliness concern in the circuit court.

       Brown’s counsel argued at a hearing held over a year after adoption of the initial

service plan—but roughly 11 months before the termination hearing—that the services

offered by the Department did not sufficiently accommodate her client’s intellectual


7
  Terry’s holding with respect to timeliness was that the objection in that case came too
late because the objection was not raised until closing arguments at the hearing to
terminate parental rights. See Terry, 240 Mich App at 27 (“In the present case,
respondent did not raise a challenge to the nature of the services or accommodations
offered until her closing argument at the hearing regarding the petition to terminate her
parental rights. This was too late in the proceedings to raise the issue.”).
8
 See, e.g., In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012); In re Hawkins,
unpublished per curiam opinion of the Court of Appeals, issued December 29, 2016
(Docket No. 332957), p 6.
9
  Certainly, a service plan deficient on its face should produce an immediate objection.
But it will not always be apparent at the time a service plan is adopted, or even soon
afterward, that the service plan is insufficient, either in design or execution, to reasonably
accommodate a parent’s disability. This is perhaps especially true with respect to
intellectual disabilities, which may present in subtle ways and require fine-tuned, albeit
reasonable, accommodations.



                                              7
disability. She specifically requested services through the NSO—services that she argued

would provide support for Brown’s disability.        The Department did not object to

counsel’s request as untimely; nor, apparently, did the circuit court find the request

untimely because the court granted the request and ordered the Department to assist

Brown in obtaining the requested services. The Department registered no objection when

the NSO services were discussed at four subsequent hearings, instead explaining its

attempts (and failures) to provide Brown with the court-ordered services. In short, the

Department and the circuit court operated as if Brown’s request had been timely; the

Department cannot now complain otherwise. 10

      Despite the recommendations of the Department’s medical professionals that

Brown could benefit from services tailored to her disability through an organization such

as the NSO, and despite the Department’s failure to provide those court-ordered services,

the circuit court nonetheless concluded that the Department had made reasonable efforts

at reunification and terminated Brown’s parental rights. The circuit court seemed not to

have considered the fact that the Department had failed to provide the specific services

the court had ordered to accommodate Brown’s intellectual disability; nor did it consider

whether, despite this failing, the Department’s efforts nonetheless complied with its

statutory obligations to reasonably accommodate Brown’s disability. This was error. As

stated earlier, efforts at reunification cannot be reasonable under the Probate Code unless




10
   The lawyer-guardian ad litem participated in the circuit court proceedings but similarly
raised no objection to the timing of the request.



                                            8
the Department modifies its services as reasonably necessary to accommodate a parent’s

disability. And termination is improper without a finding of reasonable efforts.

       Accordingly, we vacate the termination order, which was predicated on an

incomplete analysis of whether reasonable efforts were made, and remand to the circuit

court for further proceedings. On remand, the circuit court should consider whether the

Department reasonably accommodated Brown’s disability as part of its reunification

efforts in light of the fact that Brown never received the court-ordered NSO services. 11

       For the reasons stated in this opinion, we affirm in part the judgment of the Court

of Appeals, vacate in part the Court of Appeals’ opinion, and remand to the Wayne

Circuit Court for further proceedings consistent with this opinion.


                                                        Joan L. Larsen
                                                        Stephen J. Markman
                                                        Brian K. Zahra
                                                        Bridget M. McCormack
                                                        David F. Viviano
                                                        Richard H. Bernstein




11
  The Department argues that, even if it failed to make reasonable efforts at
reunification, we should still reverse the Court of Appeals because the circuit court
concluded, as an independent ground for termination, that Brown lacked the motivation
to be reunited with her children. This argument sits uncomfortably with the
Department’s concession in its brief before this Court that “[w]here the Department fails
to [make reasonable accommodations for a disabled parent], this failure will ordinarily
foreclose the Department’s ability to prove that the grounds for termination were
established.” The circuit court’s reasonable-efforts determination in this case was
incomplete. Remand is, therefore, the only proper course.



                                             9
