In the Matter of Terry and Hankston Minors, ___Mich App___ (2000) (Court of Appeals No. 214617, February 29, 2000 )
Juvenile Review MenuThe Circuit Court took jurisdiction of Ms. Terry's children because she failed to provide medical care and a stable living situation. She was diagnosed as developmentally disabled and received extensive services to improve her parenting. Even though she loved her children and tried to cooperate, Ms. Terry frequently failed to complete paperwork needed before she could get furniture and housing. She also missed doctors' appointments for the children, didn't give them medication as prescribed, and failed to use the baby's apnea monitor. Witnesses established that Ms. Terry was always willing, but she needed day-to-day assistance in child care. Someone had to guide her through each step of an activity, such as getting utilities turned on, more than once. Each time circumstances changed, she needed help to adjust. She failed to appreciate the serious nature of the children's medical problems and kept the baby's apnea monitor for days after a disagreement with the foster mother, until the worker could convince her to return it. After noting that it would take two to three years for Ms. Terry to learn the children's basic needs, the trial court terminated her parental rights under MCL712A.19b(3)(c)(i) [conditions which led to the adjudication continue to exist] and (g) [failure to provide proper care or custody].
On appeal, Ms. Terry argued that termination was improper because she "had not been offered appropriate services in light of her disability, which constituted a violation of the Americans with Disabilities Act (ADA), 42 USC 12101 et seq." The Court of Appeals observed that mental retardation is a disability within the meaning of the ADA, and 42 USC 12132 requires in part that:
"Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."
The Court of Appeals found that:
"termination of parental rights proceedings do not constitute 'services, programs or activities' within the meaning of 42 USC 12132. Accordingly . . . a parent may not raise violations of the ADA as a defense to termination of parental rights proceedings. . . [T]he 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 benefits of public programs and services. Thus the reunification services and programs provided by the FIA must comply with the ADA. However, in the context of the present case, we discern no conflict between the ADA and Michigan's Juvenile Code. Under MCL 712A.18f(4); MSA 27.3178(598.18f(4), before entering an order of disposition, the court must determine whether the FIA has made 'reasonable efforts' to rectify the conditions that led to its involvement in the case. Thus, the state legislative requirement that the FIA make reasonable efforts to reunite a family is consistent with the ADA's directive that disabilities be reasonably accommodated. In other words, if the FIA fails to take into account the parents' limitations or disabilities and make any reasonable accommodation, then it cannot be found that reasonable efforts were made to reunite the family."
The Appeals court added that a parent must raise the claim of violation
of rights under the ADA "either when a service plan is adopted or soon
afterward." The parent cannot delay such a claim until termination.
Ms. Terry did not raise this issue in a timely manner. Even if she
had, the Court of Appeals was satisfied that reasonable accommodations
had been made: "The ADA does not require petitioner to provide respondent
with full-time, live-in assistance with her children."
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