              This opinion is subject to revision before final
                   publication in the Pacific Reporter


                              2015 UT 92

                                 IN THE
     SUPREME COURT OF THE STATE OF UTAH
                            ——————
            STATE OF UTAH, In the Interest of K.C.,
         a Minor Person Under Eighteen Years of Age
                            ——————
                                N.D.,
                               Appellant
                                    v.
                           STATE OF UTAH,
                              Appellee.
                            ——————
                          No. 20140786
                    Filed November 24, 2015
                            ——————
       On Certification from the Utah Court of Appeals
                            ——————
                Fourth Juvenile, Spanish Fork
               The Honorable F. Richard Smith
                         No. 1075443
                            ——————
                              Attorneys:
               Neil Skousen, Orem, for appellant
Sean D. Reyes, Att’y Gen., John M. Peterson, Carol L.C. Verdoia,
         Asst. Att’ys Gen., Salt Lake City, for appellees
             Martha Pierce, Salt Lake City, for the
              Office of the Guardian ad Litem
                            ——————
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court,
   in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and
                  JUSTICE HIMONAS joined.
                            ——————
                            IN RE K.C.
                       Opinion of the Court

 ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
  ¶1 This is an appeal from a parental rights termination order
entered in the juvenile court. The principal questions presented
concern the applicability and operation of Title II of the Ameri-
cans with Disabilities Act , 42 U.S.C. § 12132, in parental termina-
tion proceedings under Utah law. We conclude that the ADA ap-
plies to the provision of reunification services under Utah Code
sections 78A-6-312 and 78A-6-507, but affirm on the ground that
the juvenile court judge did not exceed the bounds of his discre-
tion in deciding that requested modifications to the reunification
plan in question were not reasonable.
  ¶2 K.C. is a minor child born in 2005. She was removed from
the custody of her mother, N.D., by order of the juvenile court at a
shelter hearing in late October 2012. K.C.’s father was incarcerated
at the time.
  ¶3 The shelter hearing continued six days later. There the
State alleged that K.C.’s father had sexually abused her. Based on
admissions by the father under Utah Rule of Juvenile Procedure
34(e), the court found that K.C. had been sexually abused. The
court also expressed concerns about the mother’s mental and
physical health and about her ability to protect the child against
subsequent abuse. And it adjudged the child “dependent”—
“homeless or without proper care through no fault of the child’s
parent, guardian, or custodian.” See UTAH CODE § 78A-6-105(11).
  ¶4 In March 2013, the juvenile court ordered reunification ser-
vices for the mother. At that time N.D. agreed to the terms of a
family service plan prepared by the Department of Child and
Family Services. She made no reference to the Americans with
Disabilities Act or to any need for the plan to be modified in light
of her disabilities.
  ¶5 The service plan noted, however, that N.D. had extensive
disabilities, including serious mental health problems such as
schizoaffective disorder, and physical limitations such as poor vi-
sion. It also set out seven objectives for N.D. to accomplish in or-
der to be reunited with K.C.
  ¶6 The court held review hearings on June 3, 2013, and July
31, 2013. At those hearings the court found that DCFS was making
“reasonable efforts” toward fulfillment of the service plan. And
again N.D. made no reference to the ADA and raised no criticism

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                       Opinion of the Court

of the service plan or any concerns regarding the effect of her dis-
abilities on her capacity to comply with the plan. At the June hear-
ing the State recommended continuation of reunification services.
Eventually, however, DCFS decided to oppose continued services,
asserting that N.D. was unable to develop a healthy parental rela-
tionship with her child.
  ¶7 A permanency hearing was held on October 15, 2013, at
which the State and the Guardian ad Litem asked that reunifica-
tion services be terminated based on N.D.’s lack of substantial
progress. N.D.’s counsel sought a 90-day extension under Utah
Code section 78A-6-314(8). But the request was made under Utah
law; no reference was made to the ADA (except perhaps implicit-
ly in a vague reference to the need for “reasonable accommoda-
tions” for N.D.).
  ¶8 An evidentiary hearing on permanency began on Decem-
ber 8, 2013. In light of testimony presented at that hearing, the ju-
venile court concluded that there was insubstantial compliance
with the service plan and that extending services was against the
child’s best interests. Although DCFS had done “more than might
be expected to assist the mother” and had “consistently worked to
accomplish reunification,” the court concluded that N.D. was not
likely to become a successful parent without another year or more
of intensive therapy, supervision, and support from relatives. Re-
unification services were therefore terminated—nearly seventeen
months after K.C. had originally been removed from N.D.’s cus-
tody.
  ¶9 The State then filed a petition for termination of parental
rights, maintaining that the mother had not made sufficient efforts
“to support or communicate with the child, to prevent neglect to
the child, to eliminate the risk of serious harm to the child, or to
avoid being an unfit parent.” It was at this stage that N.D. first in-
voked the ADA—as an affirmative defense to the termination pe-
tition. She argued that DCFS had failed to “make reasonable ef-
forts to provide sufficient disability-related reunification services”
and had “failed to adequately revise, adjust, and increase disabil-
ity-related services received during [the] course of this case con-
sistent with the state government agency requirements of the
[ADA].” And she contended that the State was therefore preclud-
ed from terminating her parental rights, and that she was entitled
to additional time for reunification services.

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                            IN RE K.C.
                       Opinion of the Court

  ¶10 N.D. claimed that DCFS had not complied with the ADA
because it failed to train its caseworkers to provide ADA-
compliant services. On that basis, N.D. asserted that the State was
incapable of making “reasonable efforts” towards reunification
and that termination under such circumstances would run afoul
of the ADA. She also complained that she had not been referred to
the Coordinating Council for Persons with Disabilities or the Utah
Division of Services for People with Disabilities.
  ¶11 The Guardian ad Litem advanced three arguments against
application of the ADA in these circumstances. First, that the
ADA does not apply to termination proceedings because they do
not constitute “a service, program or activity” under the ADA. Se-
cond, that any ADA claims should have been brought prior to the
termination proceeding and as a separate action from the child
welfare case. And finally, that refusing to terminate parental
rights based on ADA violations would cut against the best inter-
ests of the child.
  ¶12 The juvenile court concluded that the ADA is not a defense
in a termination proceeding because the proceeding is not “a ser-
vice, program, or activity.” Alternatively, the court concluded that
even if the ADA applied, the mother had not suffered harm from
any failure to comply with the ADA because the mother’s disabili-
ties were accommodated and there was “no evidence of any ac-
commodation that should have been provided but was not.” In
the court’s view, the service plan was properly “tailored to [the
mother’s] individual needs and limitations and . . . additional ad-
justment was therefore not needed.” Accordingly, the court ter-
minated N.D.’s parental rights under Utah Code section 78A-6-
507. N.D. filed a timely appeal.
                                  II
  ¶13 The threshold question presented concerns the
applicability of the Americans with Disabilities Act to the
provision of reunification services under Utah Code sections 78A-
6-312 and 78A-6-507. That is a question of law, which we review
for correctness. Manzanares v. Byington (In re Adoption of Baby B.),
2012 UT 35, ¶ 41, 308 P.3d 382. On this threshold question we
disagree with the juvenile court. For reasons set forth below, we
conclude that the ADA applies in this context.




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                        Opinion of the Court

  ¶14 That brings us to a second question—whether the juvenile
court erred in its alternative determination that N.D.’s reliance on
the ADA fell short on its merits. This was a mixed determination
meriting deference on this appeal. Id. ¶ 42. The juvenile court’s
alternative basis for its decision was a determination that there
were no reasonable modifications to the reunification plan that
could appropriately be made in the circumstances of this case—a
mixed determination on a fact-intensive question not meriting a
hard look by an appellate court. See id.; A.O. v. State (State ex rel.
K.F.), 2009 UT 4, ¶ 52, 201 P.3d 985 (“[J]uvenile courts have broad
discretion in determining whether reasonable reunification efforts
were made.”). And we affirm on this ground because we find the
juvenile court’s decision to be a matter within the bounds of its
discretion.
                                   A
  ¶15 Title II of the Americans with Disabilities Act prohibits
public entities from discriminating against disabled individuals.
42 U.S.C. § 12132. Specifically, section 12132 provides that “no
qualified individual with a disability shall, by reason of such dis-
ability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be sub-
jected to discrimination by any such entity.” Id.
  ¶16 The State conceded that both DCFS and the juvenile court
are “public entities” and that N.D. is an “individual[] with a disa-
bility.” 1 And it is apparent that N.D. alleged that she was denied


 1  The State seeks to avoid the sting of this concession by insisting
that although N.D. is likely “disabled,” she is not a “qualified indi-
vidual” because she was “unable to perform the essential func-
tions of a parent.” But that reasoning is circular, and an insuffi-
cient ground for dismissal at this stage. N.D. qualified for “the re-
ceipt of services” when a reunification plan was adopted. And she
has asserted that with reasonable modifications she will continue
to qualify for reunification services and develop the skills needed
to be a qualified parent. If the ADA applies and N.D. is otherwise
eligible for its protections, she cannot be deprived of her status as
a “qualified individual” based merely on the State’s challenge to
her qualification as a parent. That challenge is the very matter in
dispute.

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                              IN RE K.C.
                        Opinion of the Court

further reunification services “by reason of” her disability. So the
key question concerns the definition of “services, programs, [and]
activities.”
  ¶17 In the proceedings below, that question was sometimes fo-
cused on the parental termination proceeding itself. But that is not
the issue. N.D. was not seeking an accommodation in court as part
of a termination proceeding—in requesting an interpreter, for ex-
ample, or some form of assistance in accessing the courtroom. We
have no trouble concluding that the ADA would apply in that cir-
cumstance, and that a disabled individual would be entitled to
complain of discrimination in the provision of the services, pro-
grams, or activities available in court. But N.D.’s request was dif-
ferent. She was asking the court to reopen and modify the plan for
reunification services in order to accommodate her disability.
  ¶18 That is the question we address. And we have no difficulty
resolving it. It is readily apparent that reunification services qualify
as services provided by a public entity. See AMERICAN HERITAGE
DICTIONARY 1602 (5th ed. 2011) (defining service to encompass
“[t]he provision to the public of something,” and “[o]ffering ser-
vices to the public in response to need or demand”). A service
plan, moreover, appears also to qualify as a program or activity. See
id. at 1407 (defining program to include “[a] system of services,
opportunities, or projects, usually designed to meet a social
need”); id. at 17 (defining activity to encompass “[a]n educational
process or procedure intended to stimulate learning through ac-
tual experience”).
  ¶19 The terms of section 12132 of the ADA are broad and en-
compassing. 2 “[S]ervices, programs, [and] activities of a public
entity” seem to encompass most all actions of public entities di-
rected to the general public. Clearly these broad terms encompass



   As we discuss in Part II.B., the question whether N.D. is a “qual-
ified individual” turns on the availability of reasonable modifica-
tions. That is a fact-based inquiry that cannot be resolved by the
State’s bare assertion.
 2  See Spencer v. Utah State Bar, 2012 UT 92, ¶¶23–24, 293 P.3d 360
(treating the Utah bar examination as a program under the terms
of the ADA).

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                        Opinion of the Court

a plan for reunification services. 3 A few other courts have so
held, 4 and we find no room in the statutory text for a contrary
conclusion.
 ¶20 As appellees note, a number of courts have reached the op-
posite conclusion. In In re Adoption of Gregory, , for example, the
Massachusetts Supreme Judicial Court held that the ADA may not
be raised as a defense in a termination proceeding because “the


 3 See Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998) (holding
that a prison ran afoul of ADA by failing to provide a disabled
prisoner access to a boot camp program that could have led to his
early release; explaining that “[t]he text of the ADA provides no
basis for distinguishing” this program from other “programs, ser-
vices, and activities” covered by the ADA).
 4  See Family Indep. Agency v. Richards (In re Terry), 610 N.W.2d
563, 570 (Mich. Ct. App. 2000) (concluding that “the ADA does
require a public agency, such as the Family Independence Agency
(FIA), to make reasonable accommodations for those individuals
with disabilities so that all persons may receive the benefits of
public programs and services”); Robinson v. State (In re Welfare of
A.J.R.), 896 P.2d 1298, 1302 (Wash. Ct. App. 1995) (“The Act re-
quires the state or other public entity to make reasonable accom-
modations to allow the disabled person to receive the services or
to participate in the public entity’s programs.”). It is also worth
noting that the Department of Justice has reached the same con-
clusion. See INVESTIGATION OF THE MASSACHUSETTS DEPARTMENT OF
CHILDREN AND FAMILIES BY THE UNITED STATES DEPARTMENTS OF
JUSTICE AND HEALTH AND HUMAN SERVICES PURSUANT TO THE
AMERICANS WITH DISABILITIES ACT AND THE REHABILITATION ACT,
U.S. DEP’T OF JUSTICE & U.S. DEP’T OF HEALTH AND HUMAN
SERVICES         (Jan.      29,      2015),        available        at
http://www.ada.gov/ma_docf_lof.doc           (concluding that the
Massachusetts DCF had failed to make reasonable modifications
required under the ADA and therefore should cease termination
proceedings and provide reunification services consistent with the
ADA). We cite this letter from the Department of Justice not be-
cause it is binding or even authoritative; it is not. It was cited by
the parties in this case, however, and we identify it here because
we agree with its analysis and ultimate conclusion regarding the
applicability of the ADA.

                                  7
                               IN RE K.C.
                         Opinion of the Court

proper focus of [such] proceedings is the welfare of the child,” not
the rights of the parents. 747 N.E.2d 120, 121 (Mass. 2001). We find
that unpersuasive. The principal “focus” in termination proceed-
ings may be on child welfare. But at least in Utah there is also a
focus on the parent. To the extent the government is providing
services aimed at reunification, we have no doubt that the ADA
applies.
  ¶21 For that reason we also reject the notion, embraced by a
number of courts, that the ADA may be invoked only as a sepa-
rate cause of action in an independent proceeding—and not as a
defense or other means of altering a service plan by a parent in a
termination proceeding. 5 An independent claim for damages
would be an inadequate remedy for alleged discrimination in the
provision of reunification services for a parent, especially given
the fundamental right to parent at stake in such proceedings. The
ADA protects a right not to “be excluded from participation in or
be denied the benefits of the services, programs, or activities of a
public entity.” 42 U.S.C. § 12132. To make that right a reality, the
ADA should be read to guarantee a right to raise this provision
while the reunification plan is being implemented—and not just
after the fact in a claim for money damages.
                                     B
  ¶22 To succeed on the merits under the ADA, N.D. would have
to establish that she is a “qualified individual with a disability.”
42 U.S.C. § 12131(2). And to carry that burden, she would have to
show that she is one “who, with or without reasonable modifica-
tions to rules, policies, or practices . . . meets the essential eligibil-
ity requirements for the receipt of services or the participation in
programs or activities provided by a public entity.” Id.
  ¶23 Thus, the ADA requires only reasonable modifications. And
N.D. accordingly had no right to extend the reunification plan in-
definitely. She had only a right to modifications deemed reasona-
ble in light of the relevant circumstances. In assessing what sorts
of modifications to the plan might be reasonable, moreover, the


5See In re Antony B., 735 A.2d 893, 899 n.9 (Conn. App. Ct. 1999);
Stone v. Daviess Cty. Div. of Children & Family Servs., 656 N.E.2d
824, 829–30 (Ind. Ct. App. 1995); State v. Raymond (In re Torrance
P.), 522 N.W.2d 243, 246 (Wis. Ct. App. 1994).

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                        Opinion of the Court

juvenile court was entitled to take into account the core principles
and policies of our Termination of Parental Rights Act—
including, of course, “the paramount concern,” which is the best
interests of the child. UTAH CODE § 78A-6-312 (19)(c).
  ¶24 The State 6 urges us to repudiate N.D.’s invocation of the
ADA on a threshold basis—as time-barred. Citing cases in other
jurisdictions, it contends that the ADA may not be invoked by a
parent at the eleventh hour of a termination proceeding. 7 Perhaps
that conclusion is tenable under the laws of other states. But it
does not hold up under Utah law. In a recent opinion we rejected
the Guardian ad Litem’s insistence that a parent must advance a
“request for reasonable reunification services at the hearing when
the primary permanency goal is established.” L.D. v. State (State ex
rel. A.T.), 2015 UT 41, ¶¶ 11–13, 353 P.3d 131. More to the point for
present purposes, in A.T. we expressly held that a parent “may
raise DCFS’ failure to provide reasonable reunification services at
the termination hearing itself.” Id. ¶ 12.
  ¶25 That holding forecloses the State’s time bar argument in
this case. If a parent may assert a right to reunification services for
the first time at the termination hearing, she may likewise seek a
modification of a reunification plan under the ADA at that stage.
  ¶26 In so holding, we do not suggest that the timing of a par-
ent’s invocation of the ADA is irrelevant on the merits. Our A.T.
opinion is again instructive. Although we concluded there that a
parent’s right to request reunification services is not legally barred
at the termination stage, we also noted that a termination proceed-
ing is not “the most prudent and effective time for a parent to re-
quest reunification services.” Id. ¶ 13 n.1. And we explained that
the lateness of a parent’s request could easily undermine the bid
for reunification services on its merits. Id. (noting that a failure to
request reunification services in a timely fashion “affects our dis-


6 On this and other points, the Guardian ad Litem’s brief parallels
that filed by DCFS. We use the shorthand “State” to encompass
both parties.
   See In re Adoption of Gregory, 747 N.E.2d 120, 124 (Mass. 2001)
    7

(holding that a parent “may not raise noncompliance with the
ADA or other antidiscrimination laws for the first time at a termi-
nation proceeding”); In re B.S., 693 A.2d 716, 722 (Vt. 1997).

                                  9
                              IN RE K.C.
                       Opinion of the Court

position of [the] appeal”).
   ¶27 That is likewise the case here. As noted above, the juvenile
court is charged here with identifying any modifications to the
reunification plan that might be reasonable. A parent who waits
until the eleventh hour to request a modification under the ADA
may thoroughly undermine her ability to establish that such mod-
ification is reasonable, particularly once the best interests of the
child are taken into account. Children have an interest in perma-
nency and stability. The expeditious resolution of a termination
proceeding may well be of paramount importance. So although a
parent may not be legally barred from invoking the ADA at the
termination stage, such delay may introduce peril on the merits.
  ¶28 That brings us to the merits of the juvenile court’s decision
here. The court found that “[t]here were no additional services
DCFS could have provided to accommodate [the] mother’s disa-
bilities.” And it based that conclusion in large part on the fact that
the plan had already been “tailored to [the mother’s] individual
needs, including needs related to the mother’s mental illnesses
and physical limitations.”
  ¶29 We affirm, finding ample support in the record for the ju-
venile court’s decision. In support of the decision that no further
modifications were appropriate, the juvenile court noted that a
wide variety of modifications had already been made—such as
adoption of various recommendations of mental health profes-
sionals, provision of extra peer parenting sessions, and allowing
N.D. extra time to complete tasks. We cannot fault the juvenile
court for concluding that any further modifications would be un-
reasonable—particularly given the stage of the proceedings in
which the ADA was invoked and the appropriate concern for the
best interests of the child in question.
  ¶30 N.D. has not identified any specific modification that she
requested that was denied by the court. She claims only that she
should have been granted additional time to complete the objec-
tives of the reunification plan. And the juvenile court reasonably
rejected that request. We find ample evidence in the record to
support the juvenile court’s conclusion that N.D.’s “illnesses pre-
sent a significant barrier to parenting” and likely “never” will be
resolved. N.D. presented expert testimony suggesting that she
“may be able to parent [K.C.] after another year or more of inten-


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                       Opinion of the Court

sive therapy.” But the juvenile court was not required to accept
that testimony or provide more time based on a mere “hypothet-
ical possibility.” It had ample grounds for its contrary conclusion
that holding out for more time was not a reasonable accommoda-
tion. We affirm on that basis. 8




 8  In so doing, we also reject N.D.’s alternative assertion of error
in the failure of DCFS to train its employees in the proper admin-
istration of the ADA. That is not a viable standalone claim. Either
N.D. established a right to a reasonable modification under the
ADA or she did not (and here she did not). The availability of
training may certainly be useful to N.D. indirectly, but she has no
standing to complain about any lack of training as an independent
claim.
  N.D.’s complaint that she was not referred by DCFS to other
state agencies dealing with individuals with disabilities is perhaps
unfortunate if true. But it is likewise irrelevant to the question of
whether modifications were required to be made to the reunifica-
tion plan, as we find nothing in the record to suggest that referral
to one of these agencies would have made reunification a more
likely outcome or necessitated a further modification.

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