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 Nov. 24, 2015

——————

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, 

Assit. 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

2

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 Americans with Disabilities Act , 42 U.S.C. § 12132, in parental termination proceedings under Utah law. We conclude that the ADA applies 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 discretion 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 services 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 vision. It also set out seven objectives for N.D. to accomplish in order 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 
Cite as: 2015 UT 92

Opinion of the Court

3

of the service plan or any concerns regarding the effect of her disabilities on her capacity to comply with the plan. At the June hearing 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 relationship with her child. 

¶7 A permanency hearing was held on October 15, 2013, at 

which the State and the Guardian ad Litem asked that reunification 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 implicitly in a vague reference to the need for ―reasonable accommodations‖ for N.D.).

¶8 An evidentiary hearing on permanency began on December 8, 2013. In light of testimony presented at that hearing, the juvenile 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. Reunification services were therefore terminated—nearly seventeen 

months after K.C. had originally been removed from N.D.’s custody. 

¶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 invoked the ADA—as an affirmative defense to the termination petition. She argued that DCFS had failed to ―make reasonable efforts to provide sufficient disability-related reunification services‖ 

and had ―failed to adequately revise, adjust, and increase disability-related services received during [the] course of this case consistent with the state government agency requirements of the 

[ADA].‖ And she contended that the State was therefore precluded from terminating her parental rights, and that she was entitled 

to additional time for reunification services. 
IN RE K.C.

Opinion of the Court

4

¶10 N.D. claimed that DCFS had not complied with the ADA 

because it failed to train its caseworkers to provide ADAcompliant 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. Second, 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 interests 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 service, 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 disabilities were accommodated and there was ―no evidence of any accommodation 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 adjustment was therefore not needed.‖ Accordingly, the court terminated 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 78A6-312 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. 
Cite as: 2015 UT 92

Opinion of the Court

5

¶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 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.‖ Id. 

¶16 The State conceded that both DCFS and the juvenile court 

are ―public entities‖ and that N.D. is an ―individual[] with a disability.‖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 individual‖ because she was ―unable to perform the essential functions of a parent.‖ But that reasoning is circular, and an insufficient ground for dismissal at this stage. N.D. qualified for ―the receipt 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. 
IN RE K.C.

Opinion of the Court

6

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 focused 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 example, or some form of assistance in accessing the courtroom. We 

have no trouble concluding that the ADA would apply in that circumstance, and that a disabled individual would be entitled to 

complain of discrimination in the provision of the services, programs, or activities available in court. But N.D.’s request was different. 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 services 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 actual experience‖). 

¶19 The terms of section 12132 of the ADA are broad and encompassing.2 ―[S]ervices, programs, [and] activities of a public entity‖ seem to encompass most all actions of public entities directed 

to the general public. Clearly these broad terms encompass a plan 

 

As we discuss in Part II.B., the question whether N.D. is a ―qualified individual‖ turns on the availability of reasonable modifications. 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). 
Cite as: 2015 UT 92

Opinion of the Court

7

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 opposite 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 

proper focus of [such] proceedings is the welfare of the child,‖ not 

 

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, services, 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 requires the state or other public entity to make reasonable accommodations 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 conclusion. 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 because 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.
IN RE K.C.

Opinion of the Court

8

the rights of the parents. 747 N.E.2d 120, 121 (Mass. 2001). We find 

that unpersuasive. The principal ―focus‖ in termination proceedings 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 separate 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 modifications to rules, policies, or practices . . . meets the essential eligibility 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 indefinitely. She had only a right to modifications deemed reasonable in light of the relevant circumstances. In assessing what sorts 

of modifications to the plan might be reasonable, moreover, the 

juvenile court was entitled to take into account the core principles 

 

5 See 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). 
Cite as: 2015 UT 92

Opinion of the Court

9

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 State6 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 parent’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 proceeding is not ―the most prudent and effective time for a parent to request 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 disposition of [the] appeal‖). 

 

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.

7 See In re Adoption of Gregory, 747 N.E.2d 120, 124 (Mass. 2001)

(holding that a parent ―may not raise noncompliance with the 

ADA or other antidiscrimination laws for the first time at a termination proceeding‖); In re B.S., 693 A.2d 716, 722 (Vt. 1997).
IN RE K.C.

Opinion of the Court

10

¶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 modification is reasonable, particularly once the best interests of the 

child are taken into account. Children have an interest in permanency 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 disabilities.‖ 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 juvenile 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 professionals, 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 unreasonable—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 objectives 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 present 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 intensive therapy.‖ But the juvenile court was not required to accept 

that testimony or provide more time based on a mere ―hypothet-
Cite as: 2015 UT 92

Opinion of the Court

11

ical possibility.‖ It had ample grounds for its contrary conclusion 

that holding out for more time was not a reasonable accommodation. 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 administration 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 reunification 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.