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

2 01 5 UT 92

I N T HE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

——————

S TATE OF U TAH
, In the Interest of K.C.

,

a M inor P erson U nder Eigh t een Years of Age

—————— N.D., Appellant

v.

S TATE OF U TAH
, Appellee

.

——————

No. 201 40786
Filed Nov. 24 , 201 5

——————
Fourth Juvenile

, Spanish Fork
The Honorable F. Richard Smith

No. 1075443

—————— Attorneys:

Neil Skousen

, Orem, for appe llant

Sean D. Reyes, A tt ’ y Gen.

, John M. Peterson

, Carol L.C. Verdoia,

Assit. Att ’ ys Gen., Salt Lake City, for a p pe l l ees

Martha Pierce, Salt Lake City, for the

Office of the Guardian ad Litem

——————

A SSOCIATE C HIEF J USTICE L EE authored the opinion of the Court,
in which C HIEF J USTICE D URRANT
, J USTICE D URHAM , and

J USTICE H IMONAS joined

.

——————I N R E K.C.

Opinion of the Court

2 A SSOCIATE C HIEF J USTICE L EE , 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 Amer icans with Disabilities Act , 42 U.S.C. § 12132, in parental termin ation proceedings under Utah law . We concl ude that the ADA a pplies to the provision of reunification services under Utah Code

section s 78A

- 6

- 312 and 78A

- 6

- 507 , but affirm on the ground that the juvenile court judge did not exceed the bounds of his discr etion 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 sexual ly abuse d her . Based on admissions by the father under Utah R ule of Juv enile P rocedure 34(e), the court fou nd 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 U TAH C ODE § 78A

- 6

- 105 (11)

. ¶4 In March 2013, the juvenile court ordered reunification se rvices for the mother

. At that time N.D. agreed to the terms of a f amily s ervice p lan prepared by the Department of Child and Family Services

. She made no reference to the Amer i cans with

Disabilities Act or to any need for the plan to be mod i fied 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 v ision. It also set out seven objectives for N.D. to accomplish in o rder 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 criticismCite as: 201 5 UT 92

Opinion of the Court

3 of the service plan or any concerns regarding the effect of her di sabilities on her capacity to comply with the plan. At the June hea ring the State recommended continuation of reunificatio n services. Eventually, however, DCFS decided to oppose continued services, asserting that N.D. was unable to develop a healthy parental rel ationship with her child.

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

, at
which the State and the Gu ardian ad Litem asked that r e unific ation services be terminated based on N.D.’s lack of substa n tial

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 t he ADA (except perhaps i m plici tly in a vague reference to the need for ―reasonable a c commod ations‖ for N.D.).

¶8 An evidentiary hearing on permanency began on Dece mber 8, 2013. In light of testimony presented at that hearing, the j uvenile court concluded that there was insubstantial compliance

with the s ervice 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 ―co n sistently worked to accomplish reunification,‖ the court concluded that N.D. was not likely to becom e a successful parent without another year or more of intensive therapy, supervision, and support from relatives. R eunification services were therefore terminated

— nearly seventeen

months a f ter K.C. had originally been removed from N.D. ’s cu stody.

¶9 The S tate then filed a petition for termination of parental rights , maintaining that the m other 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.‖ I t was at this stage that N.D. first i nvoked the ADA

— as an affirmative defense to the te r mination p etition . She argued that DCFS had failed to ―make re a sonable e fforts to provide sufficient disability

- related reunification services‖ and had ―failed to adequately revise, adjust, and i n crease disabi lity

- related services received during [the] course of this case co nsistent with the state government agency requir e ments of the [ADA ] .‖ And she contended that the S tate was therefore preclu ded from terminat ing her parental rights

, and that she was entitled

to additional time for reunification services.I N R E K.C.

Opinion of the Court

4 ¶10 N.D. claim ed 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 S tate was incapable of making ―reasonable efforts‖ towards reunification

and that t ermination under such circumstances would run afoul

of the ADA. She also complained that she had not been referred to

t he Coord inating Council for Persons with Disabilities or the Utah

Division of Services for Pe o ple with Disabilities

. ¶11 The Guardian ad Litem advanced three arguments against application of the ADA in these circumstances . First, that the

ADA does not a pply to termination proceedings because they do not constitute ―a service, program or activity‖ under the ADA. S econd, that any ADA claims should have been brought prior to the termination proceeding and as a separate a c tion from the child

welfare case. And f inally, that r e fusing to terminat e parental rights based o n ADA violation s would cut against the best inte rests of the child.

¶12 The juvenile court concluded that the ADA is not a defense

in a t ermination proceeding because the proceeding is not ―a se rvice, program, or activity.‖ Alternatively , t he court concluded that even if the ADA applied, the mother had not su f fered harm from any failure to comply with the ADA because the mothe r’s disabil ities were accommodated and there was ― no ev i dence of any a ccommodation that should have been provided but was not. ‖ In the court’s view, the service plan was properly ― tailored to [ the

m other’s] individual needs and limit a tions and

. . . additional a djustment was therefore not nee d ed. ‖ Accordingly, the court te rminated N.D

. ’s pare n tal rights under Utah Code section 78A

- 6

- 507

. N.D. filed a timely appeal

. II

¶13 T he threshold question presented concerns the applicability of the Americans with Disabilities Act to the provision of reunification services under Utah Code section s 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.Cite as: 201 5 UT 92

Opinion of the Court

5 ¶14 That brings us to a second question

— whether the juvenil e 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 determinat ion 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 i d. ; 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 A ct prohibits public entities from discriminating against disabled individuals

. 42 U.S.C. § 12132. Specifically, section 12132 provides that ―no qualified individua l with a disability shall, by reason of such di sability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be su bjected 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. i s a n ―ind i vidual[] with a dis ability.‖ 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 ind ividual‖ because she was ―unable to perform the essential fun ctions of a parent.‖ But that reasoning is c i rcular

, and an insuff icient ground for dismissal at this stage

. N.D. qualified for ―the r eceipt of services‖ when a reunification plan was adop t ed . And she

has asserted that with reasonable modifications she will continue to qualify for reunification services and develop the skills need ed

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.I N R E K.C.

Opinion of the Court

6 further reunification services ―by reason of‖ her disability. So t he key question concerns the de f inition of ―services, programs, [and]

activities.‖

¶17 In the proceedings below, that question was sometimes f ocused 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 i n terpreter

, for e xample, or some form of assistance in accessing the courtroom. We have no trouble concluding that the ADA would apply in that ci rcumstance, and that a disabled individual would be entitled to complain of discrimination in the provision of the services, pr ograms, or activities available in court. But N.D.’s r e quest was di fferent. She was asking the court to reopen and mod i fy the plan for reunif ication services in order to accommodate her disability.

¶18 That is the question we address. And we have no difficul ty resolving it. It is readily apparent that reunification services qualif y

as services provided by a public entity

. See A MERICAN H ERITAGE
D ICTIONARY 1602 (5th ed. 2011) (defining service to encompass ―[t]he provision to the public of something,‖ and ―[o]ffering se rvices 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 lea rning through a ctual experience‖).

¶19 The terms of sect ion 12132 of the ADA are broad and e ncompassing. 2 ―[S]ervices, programs, [and] activities of a public e ntity‖ seem to encompass most all actions of public entities d i rected 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 ―qua lified individual‖ turns on the availability of reasonable modific ations. 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: 201 5 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 concl u sion.

¶20 As appellees note, a number of courts have reached the o pposite conclusion. In In re Adoption of Gregory

, , for example, the

Massachusetts S u preme 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 P a. Dep ’t of Corr s. v. Yeskey, 524 U.S. 206, 2 10 (1998) (holding

that a prison ran afoul of ADA by failing to provide a disabled prisoner access to a boot camp pr o gram that c o uld have led to his early release ; explaining that ―[t]he text of the ADA provides no basis for distinguishing‖ this program from other ― programs, se rvices , and a c tivities‖ 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 receiv e 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 r equires the state or other public entity to make reasonable acco mmodations to allow the disabled person to r eceive 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 co nclusion. See I NVESTIGATION OF THE M ASSACHUSETTS D EPARTMENT OF
C HILDREN AND F AMILIES BY THE U NITED S TATES D EPARTMENTS OF J USTICE AND H EALTH AND H UMAN S ERVICES P URSUANT TO THE
A MERICANS WITH D ISABILITIES A CT AND THE R EHABILITATION A CT
, U.S. D EP ’ T OF J USTICE & U.S. D EP ’ T OF H EALTH AND H UMAN
S ERVICES (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 b ecause 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.I N R E K.C.

Opinion of the Court

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

. We find that unpe r suasive. The principal ―focus‖ in termination procee dings 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 sep arate 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 ser vices 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 modif i c ations to rules, policies, or practices . . . meets the essential elig i bi lity 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 i ndefinitely. She had only a right to modifications deemed reason able in light of the relevant circumstances. In assessing what sorts of modifications to the plan might be reasonable, moreo ver, 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: 201 5 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. U TAH C ODE § 78A

- 6

- 312 (19)(c).

¶24 Th e 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 pr o ceeding. 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 pa r ent 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 pr o vide 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 he aring, 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 pa rent’s invocation of the ADA is irrelevant on the merits. Our A.T. opinion is again instructive. Althou gh 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 procee ding is not ―the most prudent and effective time for a parent to r equest reunification serv ices.‖ 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 di sposition 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, 12 4 ( Mass. 2001) (holding that a parent ― may not raise noncompliance with the

ADA or other antidiscrimination laws for the first ti me at a term ination proceeding‖); In re B.S. , 693 A.2d 716, 722 (Vt. 1997).I N R E 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 mo dification is reasonable, particularly once the best interests of the

child are taken into account. Children have an interest in perm anency and stability . The expedi tious 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 t he juvenile court’s decision

here. The court found that ―[t]here were no additional services DCFS could have provided to accommodate [the] mother’s dis abilities.‖ And it based that conclusion in large part on the fact that the pl an 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 j uvenile 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 profe ssionals, provi sion of extra peer parenti ng sessions, and allowing

N.D. extra time to complete tasks. We cannot fault the juvenile court for concluding that any further modifications would be u nreasonable

— particularly given the stage of the proceedings in

which the ADA was invoked and the approp riate 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 obje ctives o f 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 ―il l nesses pr esent a significant barrier to parenting ‖ and likely ― ne v er ‖ will be

resolved. N.D. presented expert testimony suggesting that she ―may be able to parent [K.C.] after another year or more of inte nsive therapy

. ‖ But the juvenile court was not required to accept that testimony or provide more time based on a mere ―hypothe t-Cite as: 201 5 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 accommod ation. 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 admi nistrati on 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 reunific ation 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.