Petition for Writ of Certiorari — Tara Dawn Chapman, Petitioner v. Tennessee Department of Children's Services

No.

IN THE

SUPREME COURT OF THE UNITED STATES

TARA DAWN CHAPMAN

Petitioner,

Vs.

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE TENNESSEE SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

ALICE M. ALEXANDER

Attorney for Petitioner

U.S.S.C. Bar Number 300074

2024 Ambridge Drive

Kingsport, TN 37664

423-817-5053

Meadelawoffice@gmail.com

QUESTION PRESENTED:

The question presented is whether the Americans with Disabilities Act (ADA) applies to

termination of parental rights cases in state courts. And, if so, whether a parent with a

mental disability should be allowed to retain her fundamental right to parent, when the

parent herself is under a guardianship due to her medical condition, and has shown the

ability to care for a child with said guardianship in place.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED CASES

State of Tennessee, Department of Children’s Services vs. Tara Dawn Chapman. Case

No. J 539995, Sulliven County’ Tennessee Juvenile Court at Kingsport. Order Terminating

In Re K. H. et. al., No. E2023-00497-COA-R3-PT. Tennessee Court of Appeals, Eastern

Section. Judgment affirming trial court decision. February, 22, 2024. Not reported.

In Re K. H. et al., No. E2023-00497-SC-R11-PT. Tennessee Supreme Court. Cert denied.

May 8, 2024.

TABLE OF CONTENTS

OPINIONS BELOW cccsssscsssccssscesccossscsescecssnsscssensceresssscensseensesnecnnneceennensnnsssnssssnsssn 8

JURISDICTION occcsssscsosssscsssscsesscsnssssnsssnsssnsscsesssneessccensseensesnesvnseceneannneassanssasssens 8

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. cescccssscsssssssssssssnse 8

STATEMENT OF THE CASE .ccccscsssssssscccessevessessssessssnsssesnsscsnessenssesessseensnsenssssnsssnee 9

REASON FOR GRANTING THE WRIT. ssccsscssscosssssssssssssssnssssnssssessssnsssssessesecseensee 12

CONCLUSION..........ccccocccocssscscescscvssceessvetsessenssncsccsscenscsccessnccsasececessecssesscsccscesseaserccusocescsee 31

INDEX TO APPENDICES

APPENDIX A: Tennessee Court of Appeals Opinion

APPENDIX B: Trial Court Final Order

APPENDIX C: Cert. Denial Tennessee Supreme Court

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

In re Hicks/Brown, 893 N.W.2d 637 (Mich. 2017)

In re K.C., 362 P.gd 1248 (Utah 2015)

In re S.K, 440 P.3d 1240 (Colo. Ct. App. 3rd Div., 2019)

In re B.A., 407 P.gd 1053 (Utah Ct. App. 2017)

In re Lacee L., 114 N.E.3d 123 (N.Y. 2018)

Ronald H. v. State, Dep’t of Health & Soc. Svcs., 490 P.3d 357 (Alaska 2021)

Jessica P. v. Dep’t of Child Safety, 471 P.3d 672 (Ariz. Ct. App. 2020)

In re Elijah C., 165 A. 3d 1149 (Conn. 2017)

In re J.L., 868 N.W.2d 462 (Iowa Ct. App. 2015)

In re K.L.N., 482 P.gd 650 (Mont. 2021)

In re Parental Rights to M.A., No. 32948-8-il (2016 Wash. App. LEXIS)

S.C. Dep't of Soc. Servs. v. Mother, 651 S.E.2d 622 (S.C. Ct. App. 2007)

15, 16, 17

15

15, 17

17, 26, 29

18, 19, 20

18

18

18, 20

18, 24

18, 24, 28

18

18

In re Welfare of K.D.W., No. C5-93-2262, 1994 WL 149450 (Minn. Ct. App. 1994) 18

In re Child of Rebecca R., 221 A.3d §40 (Me. 2019)

In re S.A., No. COA17-387, 2017 WL 5147347 (N.C. Ct. App. 2017)

Commonwealth v. K.S., 585 S.W.3d 202 (Ky. 2019)

In re La’Asisa Lanae, 803 N.Y.S.2d 568 (N.Y. App. Div. 2005)

In re Chance Jahmel B., 723 N.Y.S. 2d 634 (N.Y. Fam. Ct. 2001)

Adoption of Vicky, No. 18-P-62, 2018 WL 3554138 (Mass. App. Ct. 2018)

In re Doe, 60 P.3d 285 (Hawaii 2002)

In re Moore, No. CA99-09-153, 2000 WL 1252028 (Ohio Ct. App. 2000)

In re Torrance P., 522 N.W.2d 243 (Wis. Ct. App. 1994)

In re Xavier Blade Lee Billy Joe S., 131 N.Y.S. 3d 541 (N.Y. App. Div. 2020)

In re M.AS.C., 486 P.3d 886 (Wash. 2021)

In re Adoption of Beatrix, No. 15-P933 (Mass. App. Ct. 2016)

In re K.L.N., 482 P.gd 650 (Mont. 2021)

18

18, 24

18

19

19

19, 30

19, 30

19, 30

30

21, 22

22

23

18, 23, 24

Lucy J. v. State, Dept of Health & Soc. Sves., 244 P.3d 1099 (Alaska 2010) 23, 24

In re L.W., No. J043712, 2017 WL 1318453 (Cal. Ct. App. 2017) 28

In re N.H., No. 19-1127, 2020 WL 3447580 (W. Va. June 24, 2020) 24

Mershon v. St Louis Univ., 442 F.3d 1069 (8th Cir. 2006) 25

In re. A.L. No. 2017-319, 2018 WL 722521 (Vt. 2018) 26, 27

Adoption of Yolane, No. 16-P-1525, 2017 WL 5985018 (Mass. App. Ct. 2017) 26, 27, 29

In re D.A.B., 570 S.W.3d 606 (Mo. Ct. App. 2019) 26

State ex rel. Children v. Jacqueline P., No. A-1-CA-38068, (N.M. App. 2020) unpublished 26

In re L.M., 111 N.E.3d 1242 (Ohio Ct. App. 2018) 27

In re A.E., No. A149302, 2017 WL 2537236 (Cal. Ct. App. 2017) 27

In re Jeanette L., 69 N.E. 3d 918 (Il. App. Ct. 2017) 27, 29

In re B.S. 693 A.2d 716 (Vt. 1997) 27

N.J. Div. of Child Prot. v. L.M.W. No. A-2850-15T4 (2017 N.J. Super. 2016) 26, 28

In re J.J.L., 150 A.3d 475, 48:1 (Pa. Super. 2016) 28

MC. v. Dept of Child and Fams., 750 So. 2d 705 (Fla. Dist. Ct. App. 2000) 28

In re Kayla N., 900 A.2d 1202 (R.I. 2016) 28

In re John D., 934 P.2d 308 (N.M. Ct. App. 1997) 29

S.G. v. Barbour Cnty. Dept. of Hum. Res., 148 So.3d 439 (Ala. Civ. App. 2013) 30

In re Diamond H., Cal. Rptr.2d. 715 (Cal. Ct. App. 2000) 30

In re Ivan M., No. E039029, 2006 WL 1487173 (Cal. Ct. App. 2006) 30

State Dept. Ch.S.v. Whaley, 7 Tn. Ct. + App, Case Case No. 82001-00765-COA- -R3-CV, 12

May 30, 2002. STATE [ ‘ R 2 Mg : :

(2008).

STATUTES AND RULES PAGE NUMBER

Americans with Disabilities Act 10-31

(42 U.S.C. §§ 12101, et seq.)

Tennessee Code Section 36-1-113 11

TECHNICAL ASSISTANCE 29

U.S. Dep’t of Health and Human Servs.

& Dep’t of Justice,

PROTECTING THE RIGHTS OF PARENTS

AND PROSPECTIVE PARENTS WITH

DISABILITIES: TECHNICAL ASSISTANCE

FOR STATE AND LOCAL WELFARE AGENCIES

AND COURTS UNDER TITLE II OF THE

AMERICANS WITH DISABILITIES ACT AND

SECTION 504 OF THE REHABILITATION ACT 9 (2015)

Available online at https://www.hhs. gov/sites/default/files/disability.pdf.

OTHER PAGE NUMBER

LAW REVIEW ARTICLES:

The Parent Trap: Parents with Disabilities li

and the Flaws within the Termination

of Parental Rights Proceedings,

University of Cincinnatti Law Review,

October 20, 2021, by E. Mackie Anderson

Unaccommodated: How the ADA Fails 14-31

Parents, California Law Review,

2022, by Sarah H. Lorr

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

The Tennessee Supreme Court denied certiorari in this case. A copy of the denial

appears at Appendix C.

The opinion of Tennessee Court of Appeals, Eastern Section, appears at Appendix A and

is unpublished.

The opinion of the Juvenile Court of Sullivan County, Tennessee at Kingsport appears at

Appendix B.

JURISDICTION

The Tennessee Supreme Court denied certiorari in this case on May 8, 2024. The

jurisdiction of this court is invoked under 28 U.S.C. § 1257(a) as this case involves the

application of federal law in state court.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Americans with Disabilities Act (42 U.S.C. §§ 12101, et seq.).

STATEMENT OF THE CASE

This case began with a report in 2010 to DCS that the Petitioner (“Mother”), was

the victim of domestic: violence. T.R. Vol.1, page 1. At the time, she had two small

children and was pregnant with her third child. Id. Mother was compliant with DCS’s

request to seek a restraining order against the abuser (“Father”), but ultimately had her

children removed shortly after the birth of her third child, when she took the newborn

baby to meet extended family on Father’s side, and the father showed up, in violation of

the restraining order. Petition for a Restraining Order and Court Ordered Services .....

T.R Vol.1, page 26, July 5, 2011. Losing her children was so traumatic to her that it

triggered a mental health crisis which required hospitalization, more than once over the

years. Order Terminating Parental Rights page 9, paragraph d. Her medical records

recount the despair she endured, having psychotic episodes in which she believed

various fantastical stories regarding the whereabouts of her children, even breaking out

of at least one mental health facility on foot to try and find her children. Trial Exhibits,

Volume 18, Exhibit 1 and Volume 18, Exhibit 21 - 2 volumes. The record reflects that

DCS had not been aware of her previous mental health struggles when the case first

began, and that after learning of the mental health diagnosis, DCS sought to terminate

her parental rights. (While Mother was hospitalized, on January 24, 2014, DCS filed a

Petition for Termination of Parental Rights, T.R. Vol. 1, page 118).

During the pendency of the case, Mother’s mother sought and was granted a

conservatorship over Mother for the purposes of forcing Mother into medical care for a

mental health crisis. (In 2016, while Mother was hospitalized, she wanted to leave

treatment to look for her children, so her mother applied for the conservatorship in

order to force her to remain in treatment). T.R. Exhibits, Vol.5, Exhibit 10, Order of

10

Conservatorship was entered on May 20, 2016. As referenced in T.R. Exhibits, Vol 5

Exhibit 10. As with many mentally ill people, it is difficult for the person experiencing a

mental health crisis to realize they are in crisis, and thus, they often fail to seek

treatment when needed. As a result, many people with mental health disabilities are

under guardianships by family members who can arrange for medical treatment when

needed, as is the case with Mother here. Id. (The conservatorship was dropped, and a

guardianship established after the family moved to another state in 2019, placing

Mother’s mother and sister as co-guardians). See Order Appointing Guardian, Trial

Exhibit Vol.17, Exhibit 7. The guardianship ensures that Mother takes her medicine as

directed and that she will receive prompt medical care in the case of crisis.T.R. Exhibits

Vol. 17, Exhibit 13, page 2. With this help, Mother’s illness is well managed and she lives

a normal life with her 4th child, her mother and sister, and other extended family

members. Id. Testimony at trial revealed that Mother had not required hospitalization

for the preceding 3 years. Id.

Despite the improvement in her condition, the trial court found that:

“Mother’s diagnosis reflects, and this Court so finds that her mental

impairment is most likely a permanent one. She has demonstrated over

the years that she is not capable of maintaining her medication and

treatment on her own and has done better recently due to her guardians

overseeing her care. This has been for a limited time of approximately two

years of a thirty-year mental impairment.” T.R. Vol.5, Page 607, Order

Terminating Parental Rights, page 12, paragraph 36.

This finding by the trial court was made despite the fact that there was no testimony

from any medical professional suggesting that Mother could not care for her children.

See trial transcript, generally. In actuality, the testimony reflected that Mother was

indeed able to raise a child, and that she in fact had been raising her 4th child (a

11

daughter) in the family home, for the past 9 years, without incident and that her

daughter is flourishing in school. Trial Transcript, Vol.11, Page 147 - 150.

On review, the Tennessee Court of Appeals, in upholding the trial court’s

decision, further opined that the guardianship essentially meant that Mother could not

be responsible for her own care, much less that of her children. In Re K. H. et. al., No.

E2023-00497-COA-R3-PT. Tennessee Court of Appeals, Eastern Section. Judgment

affirming trial court decision. February, 22, 2024, pp.22-26, generally. The Tennessee

Court of Appeals noted that it was without precedential guidance on the matter, and

adopted the opinions of other states that the ADA does not apply to TPR cases. Id. at

24-25.

It should be noted that Petitioner’s rights were not terminated due to harming

her children, threatening to harm or children, or due to neglecting her children. Her

rights were terminated based solely upon one ground: the ground of mental

incompetence. T.R. Volume 5, pp 607-636, Order Terminating Parental Rights p.27,

paragraph 3. Mental incompetence is defined in Tennessee statute as follows:

(i) The parent or guardian of the child is incompetent to adequately provide for

the further care and supervision of the child because the parent's or guardian's

mental condition is presently so impaired and is so likely to remain so that it is

unlikely that the parent or guardian will be able to assume or resume the care of

and responsibility for the child in the near future;... Tennessee Code Section

36-1-113(9)(8).

Mother is not mentally incompetent. She simply needs help with medication compliance

and with recognizing when she needs urgent medical assistance. See Order Appointing

Guardian, Trial Exhibit Vol.17, Exhibit 7. She gets these things through the

guardianship, and is thus able to be largely free from the symptoms of her mental

illness. Trial Exhibits Vol. 17, Exhibit 13. She is a college educated woman who holds a

12

job. Id. She helps with household maintenance, cooking and cleaning. Id. She helps her

own child, and other minor family members, with homework, baths, and other daily

tasks, Id.

Mother requested ADA accommodation from the trial court. In addition to

formally making the request in a written motion prior to trial, she also testified that she

could parent her children with the help of her extended family and requested this

accommodation. Motion to Intervene for Guardianship and Establishment of ADA

Protections. T.R. Vol.3, page 345, and also Trial Transcript, Mother’s testimony. The

extended family members testified that they were ready, willing, and able to provide the

help. Trial Transcript, Vol. 12, page 32. The Court denied this request.

Mother appealed the ruling to the Tennessee Court of Appeals, which ultimately

upheld the decision. Mother argued to the appellate court that her case should have

been treated like another case decided in the Tennessee Court of Appeals involving a

disabled person who required the assistance of another adult in order to parent her

child. State Dept. Ch. S. v. Whaley. Tn. Ct. App., Case No. E2001-00765-COA-R3-CV,

May 30, 2002. STATE DEPARTMENT OF CHILDREN SERVICES v. In the Matter of

N.B., CB. & T.B. (2008). Also See In Re K. H. et. al., No.

E2023-00497-COA-R3-PT. Tennessee Court of Appeals, Eastern Section. February, 22,

2024. Not reported, for a discussion of how the court distinguished the two cases. In

Whaley, the mother was blind and had a baby that required constant monitoring for a

life threatening medical condition, which the mother obviously could not provide. Id.

Due to mother’s disability, she also was not able to provide transportation for the child

in times of medical emergency. Id. The trial court terminated her parental rights and she

appealed to the Tennessee Court of Appeals. The appellate court reversed because the

13

mother had engaged the assistance of another adult (a mere friend, not a family

member) who could help her with her child, and thus allowed her to parent. Id. The

difference between the mother in Whaley and Mother, here, is the nature of their

disabilities. This is further evidence of discrimination against parents with mental

disabilities in state courts.

After the Tennessee Court of Appeals affirmed the decision of the trial court,

indicating that the Americans with Disabilities Act dces not apply to parental rights

termination proceedings, the Tennessee Supreme Court declined to review the case. In

Re K. H. et. al., No. E2023-00497-COA-R3-PT. Tennessee Court of Appeals, Eastern

Section. February, 22, 2024. Not reported; In Re K. H. et al., No.

E2023-00497-SC-R11-PT. Tennessee Supreme Court. Cert denied. May 8, 2024.

Discrimination in state courts impedes disabled parents from their fundamental

right to parent their own children. Although Congress passed the Americans with

Disabilities Act (ADA) in 1990 to “provide a clear and comprehensive national mandate

for the elimination of discrimination against individuals with disabilities,” nearly twenty

five years later, discrimination is stil] rampant in state family courts. See ADA, 42 U.S.C.

§§ 12101, et seq. A recent law review article which studied the failure of courts to apply

the ADA in TPR cases found that parents with mental disabilities are three times more

likely to have their parental rights terminated than parents without a disability. The

Parent Trap: Parents with Disabilities and the Flaws within the Termination of

Parental Rights Proceedings, University of Cincinnatti Law Review, October 20, 2021,

by E. Mackie Anderson. The study found that children of disabled parents are removed

14

at rates as much as 80 percent higher than children of non-disabled parents. Id. at

p.1319. Of the 94,300 parents with mental disabilities in the U.S., up to 80% of those

parents lose custody of their children at some point in their lifetime. Jd. This is despite

the fact that parents with mental disabilities are typically compliant with the

requirements of their reunification plans and have the “lowest incidence of previous

legal problems,” making parents with disabilities objectively the best candidates for

reunification with their children. Jd. Yet, as indicated above, this is not the case, and

the reason why lies in the old preconceived notion that mentally ill individuals are

unfit to raise their children, and that they would be better off with other families. Jd.

This results in well meaning DCS workers and family courts removing children from

loving homes with their biological families.

To address the ongoing discrimination against parents with disabilities in

family courts, the Department of Justice (DOJ) and Health and Human Services

(HHS) jointly issued “Technical Assistance” (TA) in 2015. See U.S. Dept of Health

and Human Servs. & Dep't of Justice, PROTECTING THE RIGHTS OF PARENTS

AND PROSPECTIVE PARENTS WITH DISABILITIES: TECHNICAL ASSISTANCE

FOR STATE AND LOCAL WELFARE AGENCIES AND COURTS UNDER TITLE II

OF THE AMERICANS WITH DISABILITIES ACT AND SECTION 504 OF THE

REHABILITATION ACT 9 (2015) [hereinafter TECHNICAL ASSISTANCE], Available

online at https://www.hhs.gov/sites/default/files/disability.pdf. The guidance followed

an investigation spurred by a specific complaint and recognized the continued

15

disproportionate separation of parents with disabilities from their children. Jd. The TA

is clear, specific, and unequivocal: the ADA applies to the programs, services, and

activities conducted by state family regulations agencies and proceedings in family

court. Jd. Nine years since the issuance of the TA, State courts continue to ignore it, or

many may not even know of its existence, as courts specifically look to precedence

for guidance. There is no guidance from the Supreme Court on this issue, and states

are treating ADA application in TPR cases in a myriad of ways.

The California Law Review published a study in 2022 of family court

decisions from all fifty states that were issued since the 2015 TA. Unaccommodated:

How the ADA Fails Parents, California Law Review, 2022, by Sarah H. Lorr. Its study

found that the applicability of the ADA varies even within individual states,

making generalizations on a state-by-state basis difficult. However, four main

categories emerged: (1) decisions that actually apply the ADA; (2) decisions that

“encourage” consultation with the ADA but do not require strict application of the

statute; (3) decisions that find actual application of the ADA unnecessary because

the requirements of the ADA are already incorporated in state anti-discrimination

statutes or state laws requiring reasonable efforts; and (4) decisions that find the

ADA is not a defense to a termination of parental rights (TPR) or that otherwise

fail to apply the ADA to family regulation proceedings. Id. The last category is the

largest, containing decisions from at least seventeen states. Id. The analysis

16

provided in the article is reproduced here in its entirety in the following 4

numbered sections (the quote is not single spaced for purposes of readability):

Three state courts have engaged in robust and clear

application of the ADA. See In re Hicks/Brown, 893 N.W.2d at 637;

K.C., 362 P.3d 1248; In re S.K., 440 P.3d at 1249. This Article

identifies these cases as those that "actually apply" the ADA. This

category includes those cases that have made it clear that an agency's

efforts to reunify a family cannot be considered "reasonable" under

state law if parents were not provided appropriate accommodations

pursuant to the ADA. In other words, these few decisions consider

compliance with the ADA as a threshold question for a finding that

the state has complied with its legal duty under ASFA to make efforts

to reunify a family. Perhaps the most robust application of the ADA

following this logic comes out of Michigan's Supreme Court. In re

Hicks/Brown, 893 N.W.2d at 637-39. The court, in Hicks/Brown,

reversed a termination decision due to ADA violations in a case

where a mother with intellectual and psychiatric disabilities had

repeatedly requested specific services, which the State never

provided. Id. at 639. The trial court eventually ordered the agency to

refer the mother to another agency focused on serving individuals

17

with disabilities but the originally assigned foster care agency failed

to do so and her rights were terminated. Id . The Hicks/Brown court

reversed the termination and remanded the case to the family court

with the instruction that it “consider whether the Department

reasonably accommodated Brown's disability as part of its

reunification efforts" given that she never received court-ordered,

disability specific services. Jd at 642. In making this ruling, the

court made clear that "efforts at reunification cannot be reasonable .

.. if the Department has failed to modify its standard procedures in

ways that are reasonably necessary to accommodate a disability

under the ADA." Id at 640. A close reading of the Hicks/Brown

decision makes clear that Michigan's highest court has gone further

than most other courts in its application of the ADA. The court's

decision that reasonable efforts "dovetail" with obligations under

Title II of the ADA may initially appear comparable to those

decisions that have found the ADA either incorporated into, or

coextensive with, state law. The standard announced by Michigan's

Supreme Court goes further, however: under Michigan's analysis, if

reasonable accommodations are not made, the State's obligation to

make reasonable efforts cannot have been met and the termination

was improper.’ Id. By applying the ADA as a threshold matter,

Hicks/Brown requires courts, attorneys, and caseworkers to

18

consider and comply with federal anti-discrimination law in the first

instance. A court in Colorado, citing Hicks/Brown, articulated a

similar standard in a 2018 case, In re S.K. Like Hicks/Brown, the

Colorado court made clear that efforts to reunify cannot be

reasonable unless they accommodate a parent's disability under the

ADA. In re S.K., 440 P.3d at 1249. The S.K. court was also clear that

lower family courts should make a specific finding as to whether an

accommodation was made.’ Id. at 1250 & n. 4. See also id. at 1248.

The S.K. court reiterated the reasoning of prior Colorado court

decisions in finding that the ADA is not a "defense" to a termination

petition but clarified that the ADA “applies to the provision of

assessments, treatment, and other services that the Department

makes available to parents through a dependency and neglect

proceeding before termination." Id at 1248. See In re B.A., 407 P.3d

1053, 1056 (Utah Ct. App. 2017) (stating "[t]here is no doubt that

the ADA applies to the government's provision of reunification

services. ").

The second set of family court cases are those that

acknowledge the application of the ADA to family court proceedings

and the services provided by the family regulation system but do not

19

strictly apply the ADA. Cases from twelve states fit into this category.

See, e.g., In re Lacce L., 114 N.E.3d 123, 129-30 (N.Y. 2018); Ronald

H. v. State, Dep't of Health & Soc. Servs., Off. Of Child.'s Servs., 490

P.3d 357, 369 (Alaska 2021); Jessica P. v. Dep't of Child Safety, 471

P.3d 672, 679-680 (Ariz. Ct. App. 2020); In re Elijah C., 165 A.3d

1149, 1166 (Conn. 2017); In re J.L., 868 N.W.2d 462, 467-68 (Iowa

Ct. App. 2015); In re K.L.N., 482 P.3d 650, 658-60 (Mont. 2021); In

re Parental Rights to M.A., No. 32948-8-iI, 2016 Wash. App. LEXIS

1208, *9-10 (Ct. App. May 24, 2016); S.C. Dep't of Soc. Servs. V.

Mother, 651 S.E.2d 622, 627-29 (S.C. Ct. App. 2007); In re Welfare

of K.D.W., No. C5-93-2262, 1994 WL 149450 (Minn. Ct. App. 1994);

In re Child of Rebecca R., 221 A.3d 540, 548 (Me. 2019); Inre SA.,

No. COA17-387, 2017 WL 5147347 (N.C. Ct. App. Nov. 7,2017);

Commonwealth v. K.S., 585 S.W.3d 202, 228 (Ky. 2019). These

decisions focus on the question of whether or not the state has made

reasonable efforts to reunify the family, as required by ASFA. See

supra note 122-125.

The most robust among them encourage courts to consult with

the requirements of the ADA as part of assessing whether an agency

has made the required efforts. In 2018, in Lacee L., the New York

Court of Appeals ruled unambiguously that the New York City

Administration for Children's Services (ACS) must comply with the

20

ADA.' In re Lacee L., 114 N.E.3d at 129-130 ("To be sure, ACS must

comply with the ADA."). Prior to the Federal TA, numerous family

courts in New York had previously ruled that the ADA did not apply

to family court proceedings.’ In re La‘Asia Lanae, 803 N.Y S.2d 568,

569 (N.Y. App. Div. 2005); In re Chance Jahmel B., 723 N.Y.S.2d

634 (N.Y. Fam. Ct. 2001). Despite the court's clarity on the question

of ACS's obligation, the court declined to require application of the

ADA within the family regulation proceeding. Lacee L., 114 N.E. 3d

at 129-130. Other courts continue to reach a similar conclusion,

reasoning that violations of the ADA should be litigated in

alternative settings. See, e.g., Adoption of Vicky, No. 18-P-62, 2018

WL 3554138, at *3 (Mass. App. Ct. July 25, 2018). See also In re

Doe, 60 P.3d 285, 290-93 (rejecting the ADA as a defense in

termination proceedings but considering a parent's disabilities in

evaluating reunification efforts); In re Moore, No. CA99-09-153,

2000 WL 1252028, at *8-9 (Ohio Ct. App. Sept. 5, 2000) (holding

that ADA violations "by a public entity" do not provide "a defense

against a legal action by the public entity."); In re Torrance P., 522

N.W.2d 243, 245-46 (Wis. Ct. App. 1994) (finding that ADA

violations do not provide grounds to set aside TPR proceedings but

holding that evaluation of efforts to provide court-ordered services

to a parent must consider that parent's disabilities). The court

21

reasoned that "[t]he ADA's ‘reasonable accommodations ' test is often

a time- and fact-intensive process with multiple layers of inquiry"

that "is best left to separate administrative or judicial proceedings, if

required." Lacee L., 114 N.E.jgd at 130. In lieu of the actual

application of the ADA, the New York Court of Appeals advised that

"Family Court should not blind itself to the ADA’'s requirements

placed on ACS and like agencies” and that “courts may look at the

accommodations that have been ordered in ADA cases to provide

guidance as to what courts have determined in other contexts to be

feasible or appropriate with respect to a given disability." Id at 129.

In Elijah C., the Supreme Court of Connecticut decided a case

involving a mother with ID who placed in the bottom one percentile

of the population for IQ. A psychologist also concluded that her

social skills, adaptive behavior, and ability to perform daily living

skills were in the one percent range. In re Elijah C., 165 A.3d

1149,1154-55 (Conn. 2017). The family court rejected the

department's claim that the ADA does not apply to child protection

cases, Id at 1164, but nonetheless concluded that the department had

provided services that amounted to reasonable efforts toward

reunification in this case. Id. at 1149, 1153-56. After a full evidentiary

hearing, the court concluded that despite providing services

appropriate under both the ADA and reasonable efforts standards,

22

the mother was unable to benefit from such services and

reunification efforts were found to be in compliance with the ADA.

Id at 1153-56. In its ruling affirming the outcome, the Connecticut

Supreme Court noted that there was “nothing in the record before us

to suggest that the trial court deviated in any way from ADA

principles, which, as we have explained, are incorporated by

reference into our state's own stringent anti discrimination statutes,

in adjudicating the neglect and termination petitions in the present

case." Id. at 1167. The court also advised that it "continue[s] to

encourage trial courts to look to the ADA for guidance in fashioning

appropriate services for parents with disabilities." Id. In this

decision, the Connecticut Supreme Court appears to have applied the

ADA not as a law but as a set of "principles" that are "incorporated

by reference" into the State's anti discrimination laws. Like New

York, Connecticut clarified the general application of the ADA but

failed to articulate a standard by which to apply it.

Some lower courts have made use of the general applicability

of the ADA to hold state agencies to higher standards. For example,

in Xavier Blade Lee Billy Joe S., the Bronx Family Court reasoned

that by the time of a TPR, the agency "should be able to demonstrate

that appropriate, adapted services consistent with the reasonable

accommodation requirements of the ADA were offered and that the

23

parent refused or was unable to plan in spite of them." In re Child.'s

Aid Soc'y for Guardianship of Xavier Blade Lee Billy Joe S., No.

B-XXXXXXX-~14, 2019 WL 348385, at *13 (N.Y. Fam. Ct., Jan. 9,

2019). In reaching the conclusion that the State had not offered

appropriate services, the court looked not only to the ADA but also to

guidance from EEOC. (After the passage of the ADA, the EEOC

created the interactive process through which an accommodation

can be identified and implemented in the employment setting. See

Lin, supra note 103, at 10. In this case, the Family Court apparently

looked to EEOC for possible accommodations. See In re Children's

Aid Soc'y., 2019 WL 348385, at * 14. In affirming this decision, New

York's Appellate Division makes no mention of the ADA but does

make clear that the efforts of the State were inadequate because of a

failure to make reasonable accommodations and provide tailored

services in light of the mother's disability. In re Xavier Blade Lee

Billy Joe S., 131 N.Y.S.3d 541, 542 (N.Y. App. Div. 2020) (stating

specifically that "people with intellectual disabilities possess the

ability to be successful parents and should receive services and

support appropriately tailored to their needs.").

Cases in Washington State and Massachusetts, though not

relying specifically on the ADA, have also explicitly held agencies to a

higher standard when cases involved parents with ID. In re M.A.S.C.,

24

486 P.3d 886, 893-94 (Wash. 2021); In re Adoption of Beatrix, No.

15-P933, 2016 WL 3912083, at *5 (Mass. App. Ct. Jul. 20, 2016)

(Where, as here, a parent has cognitive limitations, the

department's duty includes a requirement that it provide services

that accommodate the special needs of a parent." (quotation marks

and citation omitted)).

The third set of family court cases are those that acknowledge

the application of the ADA but find explicitly that it is already

incorporated into existing state law. Connecticut is an example both

of a state that "encourages" family courts to look to the ADA for

guidance and one which has determined that the ADA is

“incorporated by reference" into its antidiscrimination statutes.

Similarly, the highest courts of Montana and Alaska have

determined that their states’ respective reasonable efforts

requirements generally encompass “the ADA's reasonable

accommodation requirement." In re K.L.N., 482 P.3d 650, 659-60

(Mont. 2021) (holding that “ADA requirements [. ..] are consistent

with -and generally subsumed within" the state's "reasonable

efforts" requirement); Lucy J. v. State, Dept. of Health & Soc.

Servs., Off. of Child.'s Servs., 244 P.3d 1099, 1116 (Alaska 2010)

25

(reiterating that the state's "reasonable efforts" requirement is

"essentially identical to the ADA's reasonable accommodation

requirement.").

As Alaska's Supreme Court articulated, "[TJhe question

whether reunification services reasonably accommodated a parent's

disability is . . . included within the question whether active or

reasonable efforts were made to reunite the family."’ Lucy J., 244

P.3d at 1116. Alaska was one of a few states that settled on the

applicability of the ADA before the 2015 TA was issued. It continues

to be cited by other states with approval. Courts in Montana, Iowa,

North Carolina, and California have reached similar conclusions.’ In

re K.L.N., 482 P.3d at 660; In re J.L., 868 N.W.2d 462,467; In re

S.A., No. COA17-387, 2017 WL 5147347, at *2 (N.C. Ct. App. Nov. 7,

2017).; In re SA., 256 N.C. App. 398 at *2; In re L. W., No.

H043712, 2017 WL 1318453 at *12 (Cal. Ct. App. Apr. 10, 2017). In

West Virginia, a court found no violation of the ADA where the

state engaged in "reasonable efforts ... as well as any expectations

that would be added for a person with a mental health diagnosis

under the [ADA]." In re N.H., No. 19- 1127,2020 WL 3447580 at *2

(W. Va. June 24, 2020). Though this decision leaves open the

possibility that the ADA goes beyond reasonable efforts, the

decision fails to grapple with what application of the ADA would

26

mean or how it would differ from the application of reasonable

efforts. Courts that follow this approach elide stringent application

of the ADA requirements in favor of a wholistic finding that, as a

legal matter, the ADA's reasonable accommodations requirement

has been met.

This approach rests on the equation of the individualized

treatment plans and reasonable efforts often required by state law

with the reasonable accommodations requirement of the ADA. This

analysis avoids grappling with case law interpreting the ADA's

reasonable modifications requirement and related inquiries. See,

e.g., Mershon v. St. Louis Univ., 442 F.3d 1069 (8th Cir. 2006)

(placing the initial burden of requesting accommodations on the

individual seeking accommodation and holding that the university

did not fail to reasonably accommodate the student absent a

showing that he was denied specific, requested reasonable

accommodations). See generally 42 U.S.C. § 12131(2) (prohibiting

discrimination by public entities).

While it offers family courts the benefit of efficiency, it appears

to flout congressional intent to provide specific protections for

people with disabilities. 42 U.S.C. § 12101.

27

The largest set of decisions come from family courts that

remain completely hostile to parents raising discrimination-based

claims under the ADA. See supra text accompanying note 167

(collecting cases). Among these states exist different rationales for

fording the general inapplicability of the ADA to family court

proceedings: (1) the ADA is not a defense to a termination of

parental rights proceeding; (2) termination proceedings are held for

the benefit of children and should focus on their best interests, not

services for parents; (3) termination proceedings are not a state

provided "service"; and (4) ADA claims can and should be brought in

separate, federal or administrative, proceedings. This Section will

explore these rationales in turn. Numerous family courts across the

country have held that the ADA is not a "defense" to a TPR. See, e.g.,

N.J. Div. of Child Prot. & Permanency v. L.M.W., No. A-2850-15T4,

2017 N.J. Super. Unpub. LEXIS 2679, at *22; In re A.L., No.

2017-319, 2018 WL 722521, at *4; Adoption of Yolanc, No.

16-P-1525, 2017 WL 5985018, at *4 (Mass. App. Ct. Dec. 4, 2017); In

re DA.B., 570 S.W.3d 606,622 (Mo. Ct. App. 2019); In re BA., 73

N.E.3d 1156, 1159 (Ohio Ct. App. 2016). Still other states have held

that even if it is a defense or viable claim, it must be raised in the

first instance or it is waived. State ex rel. Children v. Jacqueline P.,

28

No. A-1-CA-38068, 2020 N.M. App. Unpub. LEXIS 42, at *3 (Ct.

App. Jan. 29, 2020); In re L.M., 111 N.E.3d 1242, 1252-53 (Ohio Ct.

App. 2018); In re A.E., No. A149302, 2017 WL 2537236, at *8 (Cal.

Ct. App. 2017); In re Jeanette L., 69 N.E.3d 918, 921 (I1. App. Ct.

2017); Adoption of Yolanc, No. 16-P-1525, 2017 WL 5985018, at *4

(Mass. App. Ct. Dec. 4,2017); In re AA., No. 112,254, 2014 WL

7575375, at *7 (Kan. Ct. App. Dec. 19, 2014). On February 2, 2018,

the Vermont Supreme Court decided The Matter of A.L. There, the

mother's cognitive, intellectual, or learning deficits were the

motivating factor in the termination of rights with all of her children.

The court found that the department complied with the ADA by

offering the extra assistance that could have provided the parenting

skills needed by the parents, though it did not comport exactly with

what was recommended by an expert retained by the parents. Even

while finding general compliance with the ADA, the court noted that

"ADA noncompliance is not a defense" to a petition to terminate

parental rights. In re. A.L., 2018 WL 722521, at *4 (Vt. Feb. 2, 2018)

(citing In re BS., 693 A.2d 716, 720 (Vt. 1997)). The court's

reasoning in A.L. is also an example of those decisions that assert

termination proceedings are held for the benefit of children and

should not, therefore, focus too much attention on the needs of the

parent. According to A.L., in a TPR, "the court must focus on the best

29

interests of a child, including whether the parents will be able to

resume parental duties within a reasonable period of time." Id. The

court framed the question of assessing the parents' needs under the

ADA as one that "ignores the needs of the child and diverts the

attention of the court" to disagreements between the agency and the

parents. Id (quoting In re B.S., 693 A.2d at 720). Courts in several

other states have expressed similar views. See, e.g., N.J. Div. of

Child Prot. & Permanency v. L.M.W., No. A-2850-15T4, 2017 N.J.

Super. Unpub. LEXIS 2679, at *22 (reiterating a prior holding that

“to allow the provisions of the ADA to constitute a defense to a

termination proceeding would improperly elevate the rights of the

parent above those of the child"); In re J.J.L., 150 4.3d 475, 481 (Pa.

Super. 2016) (emphasizing the centrality of "the child's best

interests" in rejecting the ADA as a defense to TPR proceedings);

M.C. v. Dep't of Child. And Fams., 750 So. 2d 705, 705 (Fla. Dist. Ct.

App. 2000) (rejecting ADA defenses in TPR proceedings on the

grounds that "dependency proceedings are held for the benefit of

the child, not the parent."); In re Kayla N., 900 A.2d 1202, 1208

(R.I. 2006) (quoting and adopting the reasoning of the M.C. court

in rejecting ADA defenses); In re John D., , 934 P.2d 308, 315 (N.M.

Ct. App. 1997) (holding that "the best interests of Child must take

precedence over Mother's interest in parenting" and rejecting ADA

30

defenses); In re L.W., No. Ho43712, 2017 WL 1318453, at *17-18

(holding that family courts had authority to bypass typical

reunification requirements where such bypass is in “the child's best

interests"). See also In re BA., 73 N.E.3d 1156, 1159-60 (Ohio Ct.

App. 2016) (determining that the ADA is not a defense to TPR and

noting that “the best interests of the child are of paramount

concern" in the case).

A different, but often overlapping, strain of decisions has held

that TPRs are not a service so the ADA does not apply. . See, e.g.,

Adoption of Yolane, No. 16-P-1525, 2017 WL 5985018, at *4 (Mass.

App. Ct. Dec. 4, 2017) ("[T]he Supreme Judicial Court has held ‘that

proceedings to terminate parental rights do not constitute ‘services,

programs, or activities' for the purposes of the ADA, and that any

claimed violations could not be used as a defense."); In re Jeanette

L., 69 N.E.3d. 918, 922 (111. App. Ct. 2017) ("Parental rights

termination proceedings are not ‘services, programs, or activities’

that would subject them to the requirements of the ADA.") (internal

quotation marks omitted); S.G. v. Barbour Cnty. Dep't of Hum.

Res., 148 So. 3d 439, 447 (Ala. Civ. App. 2013) ("[W]e hold that a

termination-of parentalrights proceeding is not a service, program,

or activity within the meaning of the ADA and that, therefore, the

ADA does not apply to such a proceeding."). This finding is in direct

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