28 C.F.R. § 35.103 25, 26

28 C.F.R. § 35.104 13, 14

28 C.F.R. § 35.130 passim

34 C.F.R. § 104.3 31

34 C.F.R. § 104.4 30

34 C.F.R. § 104.52 31

MHLAC was established by the General Court in 1973 under the jurisdiction of the Supreme Judicial Court. MHLAC has the explicit duty "to assist and advise indigent patients and residents in . . . mental health . . . facilities of the Commonwealth." G. L. c. 221, § 34E. In that capacity, MHLAC provides advice and assistance to individuals with mental illness throughout Massachusetts, to their families and friends, and to other attorneys. MHLAC also has the duty "to conduct a continuing program of information with regard to the legal rights of patients and residents at all mental health . . . facilities in the Commonwealth". Id. To this end, MHLAC writes, publishes, and distributes pamphlets, handbooks, and a semi-annual legal journal, and provides training to judges, lawyers, legislators, individuals, organizations, and the staff of mental health facilities. Additionally, MHLAC has standing to bring legal actions on behalf of persons with mental illness consistent with its duty to assist and advise indigent patients and residents in the Commonwealth. D.L. v. Commissioner of Social Services, 412 Mass. 558, 559 n.3 (1992).

Another primary function of MHLAC is to monitor and to address legal issues before the courts that are likely to affect the interests of persons with psychiatric disabilities. Toward this end, MHLAC has participated as amicus alone or with other amici in many important cases, including: Acting Superintendent of Bournewood Hospital v. Lynda Baker, 431 Mass. 101 (2000); McCabe v. City of Lynn, 77 F.3d 540 (1st Cir. 1996), cert. denied, 117 S.Ct. 275 (1996) (amicus brief in support of Petition for Writ of Certiorari); Rogers v. Okin 738 F.2d 1 (1984); Hashimi v. Kalil, 388 Mass. 607 (1983).

In September 1999, MHLAC and Employment Options, Inc. developed the Clubhouse Family Legal Support Project. The goal of the project is to provide direct representation to clients with mental illness in various family law actions and to assist other attorneys who take these cases through the statewide pro bono panels. Through this grant, with the assistance of the Massachusetts Bar Foundation and the National Association of Public Interest Law, MHLAC has become deeply immersed in family and domestic relations law and its inter-relationship with disability laws.

The Disability Law Center is a statewide private non-profit organization that is federally mandated to protect and advocate for the rights of individuals with disabilities. Pursuant to the Protection and Advocacy of Individual Rights Program, 29 U.S.C. § 794e, the DLC represents individuals who face discrimination on the basis of their disabilities in a broad spectrum of cases including employment, housing, public accommodations and public services.

Since 1978, the DLC has provided a full range of legal assistance to people with disabilities in Massachusetts, including legal representation, regulatory and legislative advocacy, and education and training. Much of the DLC’s work relates to the application and interpretation of disability laws, including Title II of the Americans with Disabilities Act, 42 U.S.C. 12131 et seq.

The DLC has participated in many important cases before this Court, including: Dahill v. Boston Police Department, SJC No. 98-11441-DPW (pending); Acting Superintendent of Bournewood Hospital v. Lynda Baker, 431 Mass. 101 (2000); Iodice v. Architectural Access Board, 424 Mass. 370 (1997); Layne v. Superintendent, 406 Mass. 156 (1989).

Whether qualified individuals with disabilities are entitled to receive reasonable accommodations in Department of Social Services (DSS) services, pursuant to Title II of the Americans with Disabilities Act, 42 U.S.C.12131 et. seq., and Massachusetts state law.

Amici accept the Statement of the Case as set forth in the brief of the Father-Appellant.

Amici accept the Statement of Facts as set forth in the brief of the Father-Appellant.

As a qualified individual with a disability, Father is entitled to receive reasonable accommodations in the provision of the Department of Social Services (DSS) services, pursuant to the Americans with Disabilities Act (ADA) and state law. (pp. 8-9).

The clear and unambiguous language of the ADA compels the conclusion that Title II of the ADA applies to DSS services. Furthermore, the legislative history of the ADA illustrates that Congress intended the ADA to provide comprehensive protection, including protection from governmental discrimination in family life. Therefore, Father is entitled to receive reasonable accommodations in DSS services pursuant to the ADA. (pp. 9-25).

Massachusetts law provides equal or greater rights to individuals with disabilities than does Title II of the ADA, and Father is also entitled to receive reasonable accommodations in the provision of DSS services pursuant to Massachusetts law. (pp. 25-32).

Other state courts vary in their responses when parents have alleged that a state social service agency has failed to provide reasonable accommodations in services, but none of these responses is determinative of Massachusetts’ resolution of this issue. (pp. 32-39).

The trial court should consider whether or not DSS has met its obligations under the ADA and state law to reasonably accommodate parents with disabilities during the course of care and protection proceedings. To resolve ADA claims in the context of termination of parental rights, amici suggest the trial court should:

• Require the parent to establish a prima facie case of discrimination by DSS;
• Provide DSS with the opportunity to rebut the inference of disability discrimination by demonstrating that it offered reasonable accommodations to the parent;
• Stay termination of parental rights pending the implementation of a non-discriminatory service plan and issue a remedial order related to accommodation.

The ADA and state law do not elevate the prerogatives of the parents with disabilities above the interests of their children. They simply provide an equal opportunity for parents with disabilities to participate in services readily made available to parents without disabilities. (pp. 39-49).

Because both Massachusetts law and the ADA impose a duty upon DSS to provide reasonable accommodations to the Father, the order of the trial court terminating the parent-child relationship should be vacated and the case remanded for reconsideration of the Father’s reasonable accommodations claim. (p. 50).

In Father’s appeal of the Woburn District Court decision terminating his parental rights, Father asserts that, "this Court should find that the Department, through its own social workers and those of its contract agencies, did not fulfill its mandate under either the state or federal systems to not discriminate against the disabled. No reasonable accommodations for Father’s cognitive disabilities were ever made." Initial Brief of Father, at 42. Father specifies that his right to receive reasonable accommodations in DSS services is found within the ADA, 42 U.S.C. § 12131 et seq., Amendment 114 to the Massachusetts Constitution, and DSS regulations, 110 C.M.R. 1.08-1.09. Initial Brief of Father, at 18-22.

In response, DSS misconstrues Father’s argument by stating, "[t]he Americans with Disabilities Act does not apply to proceedings to dispense with a parent’s consent to adoption," and "[t]his Court need not reach the questions of whether the ADA applies to proceedings to terminate parental rights." DSS Brief, at 21, 40. Father did not assert that the ADA applies to proceedings to terminate parental rights, but instead that the ADA and State law apply to DSS, and specifically, to DSS services. Initial Brief of Father, at 22. Father does not argue that the ADA bars the court from terminating a parent’s rights when that parent is unfit and the best interests of the child would be served by termination. Rather, the argument is that, prior to bringing a petition to terminate parental rights, the ADA and Massachusetts law require DSS to grant reasonable accommodations in the provision of services to parents with disabilities. No qualified parent with a disability can be fairly adjudicated unfit to parent without first being offered reasonable accommodations, specifically tailored to his or her needs, in the provision of DSS services.

1. Father is Entitled to Receive Reasonable Accommodations in the Provision of DSS Services Pursuant to the ADA.

 

1. The Clear and Unambiguous Language of the ADA Compels the Conclusion that Title II of the ADA Applies to DSS Services.

There is no question that DSS qualifies as a "public entity" under Title II of the ADA, and that the services that it provides to parents and families constitute "services, programs, or activities" under Title II of the ADA. See 42 U.S.C. § 12132; 42 U.S.C. § 12131(1).

An application of the defined principles of statutory interpretation clearly establishes that Title II of the ADA, which prohibits a "public entity" from discriminating against a "qualified individual with a disability," on the basis of the individual’s disability, applies to services provided by DSS. 42 U.S.C. § 12131(2). A statute must be interpreted,

Acting Superintendent of Bournewood Hospital v. Baker, 431 Mass. 101, 104 (2000) (quoting Hanlon v. Rollins, 286 Mass. 444, 447(1934)).

Pursuant to these principles of statutory construction, it is imperative to give attention to the precise words of the ADA in relationship to the "cause for enactment," the "mischief to be remedied," and the "main object to be accomplished." Id. In each of these respects, the language of the statute is plain and unambiguous.

As to the "cause of the enactment of the ADA," the Congress sought to reverse the history of irrational discrimination established and enforced by the authority of every state. In its findings, borrowing familiar language no court could fail to understand, the Congress stated:

42 U.S.C. §12101(7).

In the same findings, the Congress noted the "mischief to be remedied," namely, the legacy of prejudice and fear which persisted and continued to force Americans with disabilities to live under discriminatory conditions. As stated plainly in the ADA, "[i]ndividuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion,...failure to make modifications to existing facilities and practices, exclusionary qualifications standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, and other opportunities;" 42 U.S.C. §12101(5). Further, "[d]iscrimination against individuals with disabilities persists in such critical areas as access to public services." 42 U.S.C. §12101(3).

The "main object to be achieved" by this Act is no less than the eradication of all discrimination to make the guarantee of equal protection a reality for people with disabilities. The statement of purpose reads,

1. to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;...

1. to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.

42 U.S.C. 12101(b).

Therefore, the clear language in the ADA, which reveals its "cause for enactment," the "mischief to be remedied," and the "main object to be accomplished," evidences that DSS services are subject to Title II of the ADA.

The clear language of the ADA also evidences that Father is a "qualified individual with a disability," that DSS is a "public entity," and that DSS services are "services, programs, and activities" under Title II of the ADA. 42 U.S.C. § 12131(2); 42 U.S.C. § 12131(1)(B); 42 U.S.C. § 12132.

1. Father is a "qualified individual with a disability" under the ADA, 42 U.S.C. § 12131(2) .

The regulations implementing Title II state: "[d]isability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." 28 C.F.R. § 35.104. Father is an individual with a disability under the ADA because he has Attention Deficit Hyperactivity Disorder (ADHD) and cognitive limitations, including learning disabilities and disabilities in visual-spatial organization, and these conditions substantially limit his ability to concentrate and to understand new material. A.282; A.1350; A.1352.

"Qualified individual with a disability" is defined in the ADA as,

42 U.S.C. § 12131(2).

Father is a qualified individual with a disability under the ADA because, following the judicial certification of the need to remove the child from the home under G.L. c. 119 § 29C, Father met the essential eligibility requirements to receive reunification services from DSS.

(A) any State or local government;

42 U.S.C. § 12131(1).

In Pennsylvania Dept. of Corrections v. Yeskey, the United States Supreme Court specifically analyzed the language of Title II of the ADA within the definition of "public entity." 524 U.S. 206, 210-212 (1998) (holding that Title II applies to state prisons and prisoners). The Court found that, "the ADA plainly covers state institutions without any exception that could cast the coverage of prisons into doubt," and "the text of the ADA is not ambiguous." Id.

Similarly, in another decision that involved scrutiny of the language of Title II of the ADA, the Ninth Circuit stated, "[w]e doubt, moreover, that Congress could speak much more clearly than it did when it made the Act expressly applicable to all public entities and defined the term ‘public entity’ to include every possible agency of state or local government." Crawford v. Indiana Dept. of Corrections, 115 F.3d 481, 485 (9^th Cir. 1997).

There are no exceptions in Title II of the ADA that could cast the ADA’s coverage of DSS into doubt. DSS is an "agency" within the executive branch of State government, and it is therefore covered by Title II of the ADA. 42 U.S.C. § 12131(1)(B); see also Analysis, 28 C.F.R. § 35.102.

1. DSS services are "services, programs, or activities" under the ADA, 42 U.S.C. § 12132.

One cannot credibly construe DSS services to fall outside of the scope of "services, programs, or activities" under the ADA. 42 U.S.C. § 12132. Although Congress did not define the terms "services, programs, or activities" within the ADA, the ordinary and approved usage of these words reveals that DSS services fall squarely within their scope. See 42 U.S.C. § 12131; Baker, 431 Mass. at 104. Indeed, the Massachusetts statute uses the very word "services" in describing what DSS provides. G.L. c. 210 § 3. According to Massachusetts law, DSS provides "services intended to correct the circumstances which led to the abuse or neglect." Id. (emphasis added). The Massachusetts statute is comparable to the state statute under review in Yeskey. See Yeskey, 524 U.S. at 210. In Yeskey, the United States Supreme Court highlighted the fact that a motivational boot camp, which was the subject of an ADA Title II controversy, is referred to as a "program" in the state statute which established the camp. Id. Similarly, the ADA’s clear and unambiguous language leaves no doubt that DSS services constitute "services" of a "public entity" under Title II of the ADA. 42 U.S.C. § 12131(1)(B).

As a qualified individual with a disability, who is a recipient of services from a public entity, Father is entitled to the protections of the ADA. 42 U.S.C. § 12131, et seq. First, Father is protected by the non-discrimination mandate of Title II of the ADA, which states, "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." 42 U.S.C. § 12132. Also, included among Father's rights are: (a) the right to reasonable modifications in DSS services, when the modifications are necessary to avoid discrimination on the basis of disability, unless DSS can demonstrate that "making the modifications would fundamentally alter the nature of the service," 28 C.F.R. § 35.130(b)(7); and (b) the right to receive a service that is "as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others." 28 C.F.R. § 35.130(b)(1)(iii).

Although this Court can decide that the ADA applies to DSS services solely on the basis of the "plain and unambiguous" language of the ADA, the legislative history also supports the conclusion that the ADA applies to DSS services. See Hashimi v. Kalil, 388 Mass. 607, 609 (1983). To presume that the ADA was not intended to cover DSS services is to dismiss the undoubtedly comprehensive nature of the ADA, as well as the pervasive discriminatory attitudes and practices in the United States, vis-a-vis child-bearing and child-rearing by individuals with disabilities, that existed when the ADA was enacted.

People with disabilities were subjected to widespread discrimination in the area of family life prior to the enactment of the ADA. Twenty-nine states passed legislation for compulsory eugenic sterilization between 1907 and 1931. See J. Landman, Human Sterilization, 302-302 (1932). The practice of compulsory sterilization of individuals with mental disabilities was upheld by the United States Supreme Court in Buck v. Bell, 274 U.S. 200 (1927). The Court upheld a Virginia statute permitting superintendents of institutions for individuals with mental disabilities to condition release of residents on involuntary sterilization if they determined that sterilization was in the "best interests of the patient and society." Id. at 207. The Court concluded that:

As late as 1983, fifteen states continued to authorize compulsory sterilization of individuals who had mental illness or mental retardation, and at least four states authorized sterilization of individuals who had epilepsy. U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Disabilities, at 37. The U.S. Commission also found that, historically, many states prohibited people with disabilities from marrying, and many states terminated the parental rights of parents with disabilities through unjustified proceedings. Id.

The ADA was enacted on July 26, 1990, "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). Congress enacted the ADA nearly twenty years after Section 504 of the Rehabilitation Act of 1973 (Section 504), which was the first broad federal statute aimed at eradicating discrimination against individuals with disabilities. 29 U.S.C. § 794. Section 504 prohibits discrimination in any program or activity that receives federal financial assistance: "No otherwise qualified individual with a disability...shall, solely by reason of disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." 29 U.S.C. § 794. Section 504’s coverage includes state programs or activities that receive federal financial assistance. Id.

By the end of the 1980s, the United States Senate and House of Representatives both recognized that the existing statutes were "inadequate" to address "the pervasive problems of discrimination that people with disabilities are facing." S. Rep. No. 116, 101^st Cong., 1^st Sess. 18 (1989); H.R. Rep. No. 485 (II), 101^st Cong., 2d Sess. 47 (1990). The Senate emphasized that there was a need for "omnibus civil rights legislation" for individuals with disabilities, to remedy the persisting discrimination. S. Rep. No. 116, 101^st Cong., 1^st Sess. 19 (1989). Attorney General Richard Thornburgh, speaking on behalf of President George Bush, described the purpose of the ADA:

H.R. Rep. No. 101-485, pt. 2, at 48; S. Rep. No. 101-116, at 19 (1989).

The terms "full participation" and "equality of opportunity" include full participation in family life. 42 U.S.C. § 12101 (a)(8). The U.S. Supreme Court recently held that the ADA prohibits state conduct that is based on or "perpetuates unwarranted assumptions that persons [with disabilities]...are incapable of participating in community life" or that "severely diminish the everyday activities of individuals, including family relations..." Olmstead v. L.C., 527 U.S. 581, 600-01 (1999) (emphasis added).

"Equality of opportunity" must be read to include the equality of opportunity to parent, because the "rights to conceive and to raise one’s children have been held to be ‘essential,’ Meyer v. Nebraska, 262 U.S. 390, 399 (1923), ‘basic civil rights of man,’ Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and ‘rights far more precious...than property rights,’ May v. Anderson, 345 U.S. 528, 533 (1953)." Stanley v. Illinois, 405 U.S. 645, 651 (1972); 42 U.S.C. § 12101 (a)(8). This right can be infringed upon, under the parens patria doctrine, when such infringement is in the best interests of the child. However, the best interests of the child cannot be determined until after parental unfitness is established: "[u]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. Thus, at the fact-finding, the interests of the child and his natural parents coincide..." Santosky v. Kramer, 455 U.S. 745, 760-61 (1982). Therefore, both a parent and a child are initially presumed to share an interest in their family’s integrity. Id.

It is impossible to read the legislative history of the ADA, and the clear and unambiguous language in the statute, and conclude that it excludes the "services, programs, and activities" of DSS. DSS administers immense control over many parents with disabilities, as well as children with disabilities, in the precious social arena of family life, and ultimately influences whether the family unit will remain intact or will be dissolved. DSS services are covered by this comprehensive legislation, and must be provided free of discrimination.

1. Father Is Entitled To Receive Reasonable Accommodations In The Provision Of DSS Services Pursuant To Massachusetts State Law.

To properly determine the applicability of the ADA to DSS services, this Court must first look to the language of the ADA, and then, if necessary, to the legislative history of the ADA. See Argument at Section II(A), supra. To determine if Father has a separate protected right to reasonable accommodations under state law, this Court must compare the Massachusetts state law protections for parents with disabilities to those protections in the ADA. See 42 U.S.C. §12201(b); 28 C.F.R. § 35.103(b).

The ADA specifically provides that:

42 U.S.C. §12201(b)(emphasis added). See also 28 C.F.R. §35.103(b).

Therefore, if Massachusetts law provides greater or equal rights to individuals with disabilities than the ADA, the Father also has the right to reasonable accommodations in DSS services pursuant to state law. Id.

DSS is required to act in conformance with 110 Code of Massachusetts Regulations (C.M.R.) 1.08-1.09, G.L. c. 210 § 3, and Article 114 of the Massachusetts Constitution, prior to petitioning the court to terminate parental rights. Thus, because Massachusetts law provides equal or greater protections than the ADA, Father is entitled to rely on state law as a basis for his right to reasonable accommodations in DSS services. 28 C.F.R. § 35.103(b); 28 C.F.R. § 35.130(b)(7).

Section 3 of G.L. c. 210 defines when DSS is not required to obtain the consent of a parent in order to free a child for adoption. A relevant section of the statute states, in part:

G.L. ch. 210, §3(c)(iii)(2000) (emphasis added).

Also relevant is G.L. c. 18B, § 7(i), which requires the department to provide "informal education and group activities as needed for families...training in parenthood and home management...family services intended to prevent the need for foster care..." G.L. c. 18B, §2(9),(10), and (13).

These statutes require DSS to provide services; they do not specify that these services must be reasonably tailored to accommodate the needs of a person with a disability. G.L. c. 210, § 3 states only that the services must be "intended to correct the circumstances" that led to a finding of parental unfitness, and G.L. c. 18B, §2 states only that the services must be "intended to prevent the need for foster care." When evaluating parental fitness in a termination of parental rights hearing, courts are guided solely by the statute to examine only whether DSS offered services, and whether those services were designed with the intent to correct the cause of the parental unfitness. The statute alone does not provide Father, or any other qualified person with a disability, with protections equal to or greater than the ADA, because the statute lacks both a non-discrimination mandate and a reasonable accommodation duty.

However, DSS regulations, promulgated pursuant to G.L. c. 18B, §7(i), do include a non-discrimination mandate and a reasonable accommodation duty. 110 C.M.R. 1.08-2.00. These regulations specify the manner in which DSS must provide its services.

Section 110 of C.M.R. sets forth the criteria that DSS must follow when providing services to parents. DSS is required to administer these services in a non-discriminatory fashion. The relevant regulation states that "[n]o applicant for or recipient of Department services shall, on the ground of ... disability..., be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination in connection with, any service, program, or activity administered or provided by the Department." 110 C.M.R. 1.09 (emphasis added).

The Code also requires that DSS "make reasonable accommodations to ensure that its services, facilities, communications, and meetings are accessible to all handicapped persons." 110 C.M.R. 1.08 (emphasis added). The regulations define a person who is "handicapped" as a person who, "has a physical or mental impairment which substantially limits one or more of such person’s major life activities..." 110 C.M.R. 2.00.

Section 504 and ADA regulations define "handicapped person," in a manner comparable to DSS regulations: "any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii)has a record of such an impairment, or (iii) is regarded as having such an impairment." 34 C.F.R. §104.3(j)(1); 28 C.F.R. §35.104.

The relevant Section 504 regulation which describes the non-discrimination mandate in health, welfare and other social services states:

34 C.F.R. §104.52(1)-(3)(emphasis added).

Like the Section 504 social service regulation, ADA regulations also provide qualified individuals with disabilities the right to reasonable accommodations in services, and the right to receive a service that is "as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others." 28 C.F.R. §35.130(b)(7); 28 C.F.R. §35.130(b)(1)(iii).

It is proper to look to DSS’ own regulations, written to conform agency practices with federal and state constitutional civil rights mandates, G.L. c. 210, § 3, and Article 114 in assessing DSS’ state law obligations relating to petitions to terminate parental rights. It is therefore reasonable for this Court to conclude that Massachusetts law creates rights for individuals with disabilities that are equal to or greater than the ADA. Consequently, Father has the right to reasonable accommodations in DSS services pursuant to state law.

Other states that have addressed a parent’s claim that he or she was not provided reasonable accommodations with regards to DSS services have arrived at varying conclusions. Although none of these cases are binding on this Court, clarification of the "state of the states" is warranted, particularly in light of the questionable characterization of some of the cases in DSS’ brief.

At least six states have held that the ADA requires a state social service agency to provide reasonable accommodations in services to qualified parents with disabilities prior to petitioning to terminate parental rights. The Texas Court of Appeals held that the ADA is an "affirmative defense" to a petition to terminate parental rights, and that it must be pleaded to avoid waiver. See In the Interest of C.M., S.M., D.M., and J.M., 996 S.W.2d 269, 270 (Tex. App. 1999). The New Mexico Court of Appeals stated that, "[w]e understand Section 12132 of the ADA to apply in situations where a state has a statutory duty or otherwise undertakes to assist a person." In the Matter of John D., 934 P.2d 308, 313 (N.M. Ct. App. 1997). The Appellate Court of Connecticut held that the ADA applies to reunification services and programs that the department must provide in order to meet the parents’ specialized needs. In Re Anthony B. et. al., 735 A.2d 893, 899, n.9 (Conn. App. Ct. 1999). The Michigan Court of Appeals in the case of Family Independence Agency v. Terry, concluded that "the ADA does require a public agency, such as Family Independence Agency (FIA), to make reasonable accommodations for those individuals with disabilities...thus, the reunification services and programs provided by the FIA must comply with the ADA." 610 N.W.2d 563, 570 (Mich. Ct. App. 2000). In the case of Stone v. Daviess County Division County Division of Children and Family Services, the Indiana Supreme Court noted that the ADA would apply to their state agency’s services if their state statute required services to be provided:

656 N.E.2d 824, 830 (Ind. Ct. App. 1995).

The Indiana Supreme Court stated that once the "agency opts to provide services...the provision of those services must be in compliance with the ADA." Id.

Many courts have also applied an ADA analysis to the facts before them, without making a specific holding as to the applicability of the ADA. In In Re Angel B., et. al., 659 A.2d 277, 279 (Me. 1995), the Maine Supreme Court ruled that the services provided to the mother were effective in affording her an equal opportunity to rehabilitate and reunify with her children on the basis of her disability. Therefore, the court concluded that the Department of Human Services (DHS) offered the mother services that were compliant with the ADA. Id. The Washington Court of Appeals held that the services provided by the state agency were in compliance with the ADA and therefore, the ADA had not been violated. In Re the Welfare of A.J.R., 896 P.2d 1298, 1302 (Wash. Ct. App. 1995). The Supreme Court of Montana held that the treatment plan for the mother was a "...reasonable attempt to accommodate the mother’s needs." In Re T.A.G., 1999 Mont. 142N, *19-20 (Mont. 1999). The court determined that the mother’s disability was reasonably accommodated and that "[t]he ADA demands nothing more." Id. at *20.

Some states focus on the less relevant issue of whether a proceeding to terminate parental rights constitutes a "service, program, or activity" under the ADA. 42 U.S.C. § 12132. For example, the Wisconsin Court of Appeals held that the ADA does not apply to termination of parental rights proceedings, and drew the unsupported conclusion that, "Congress did not intend to change the obligations imposed by unrelated statutes." In Re Torrance, 522 N.W.2d 243, 245-246 (Wis. Ct. App. 1994)(emphasis added). The Wisconsin Court provided no citation of its source of authority for this statement. The flaw in this assertion is its unfounded presumption that a termination of parental rights statute is "unrelated" to the ADA. Indeed, as detailed above, both the clear language of the ADA and the ADA’s legislative history reveal that Congress intended the ADA to eradicate state discrimination against individuals with disabilities in the areas of child-bearing and child-rearing.

Finally, some courts have held that the ADA should not apply to termination of parental rights proceedings because the rights of the child would then be subordinated to the rights of the parents. See In the Interest of T.B. and M.B., 2000 Colo.App. LEXIS 1637, *6 (Colo. App. Ct. 2000) (holding that the ADA cannot be raised as a defense to termination of parental rights proceedings and that, "the proper focus of such proceeding is the welfare of the child"); In Re Anthony P., 2000 Cal.App.LEXIS 875, *8 (Cal. Ct. App. 2000) (holding that the dependency proceeding is for the benefit of the child and that the ADA is not applicable as a defense to the termination proceedings); J.T. v. Arkansas Department of Human Services, 947 S.W.2d 761 (Ark. 1997) (holding that the parents’ rights under the ADA must be subordinated to the protected interests of the child). This theory is in direct conflict with the United States Supreme Court’s finding in Santosky v. Kramer, that a child and a parent must be presumed to share an interest in staying together until the parent is determined unfit. Santosky et al. v. Kramer, 455 U.S. 745, 760-761 (1982).

It is also in direct conflict with the finding of this Court in Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631 (Mass. 1975). In that case, the Court stated that the tests for best interest of the child and parental unfitness "reflect different degrees of emphasis on the same factors," and "that the tests are not separate and distinct but cognate and connected." Id. at 641. The best interests of a child, therefore, properly becomes the court’s focus only after parental unfitness is established. Id. Parental unfitness can be established only after a court determines that a state social service agency provided a parent with a disability with reasonable accommodations in services, and that the parent still remains unfit. While it may be easier to conceptualize the impropriety of a court ignoring the issue of reasonable accommodations when the facts involve a parent who is deaf and was provided parenting services without an interpreter, the reasoning applies equally to parents who have learning disabilities, mental retardation, or mental illness.

The Father in the present case must be afforded reasonable accommodations in the services provided by DSS pursuant to both Massachusetts law and the ADA, prior to a termination of his parental rights.

A number of state courts that have addressed the interplay of the ADA and termination of parental rights have recognized that the ADA protects parents with disabilities from discriminatory treatment by social services agencies and obligates those agencies to make reasonable accommodations and program modifications for individuals with disabilities. See, e.g., Family Independence Agency v. Terry, 610 N.W.2d.563, 570 (Mich. Ct. App. 2000). However, there is no judicial consensus as to the proper procedure for parents subject to disability-based discrimination to raise and remedy violations of the ADA. Courts have recognized a few different options.

First, it is acknowledged that a parent with disabilities may raise the unreasonable refusal of a social service agency to accommodate his or her disability as a violation of the ADA in a state court with jurisdiction over the agency prior to any proceeding to terminate parental rights. See id. at 570. Upon determination that the agency violated the ADA, the court may fashion a remedial order that enjoins the discriminatory conduct and specifies the accommodations to be made. Id. The practical effect of such a timely challenge and judicial determination of an ADA violation would be to preclude an action to terminate parental rights unless and until the social services agency can demonstrate that the parent with disabilities did not benefit from the accommodations.

Second, state courts that have declined to address ADA violations have pointed out that parents may file a separate and independent right to raise ADA claims for failure to modify services in state or federal court even after termination of parental rights. See In Re Torrance, 522 N.W.2d 243 (Wis. Ct. App. 1994); In Re B.S, 693 A.2d. 716 (Vt. 1997).

Third, at least one court has adopted the view that an ADA claim against a social service agency for failure to reasonably accommodate a parent with a disability constitutes an "affirmative defense" to the termination of parental rights. See In the Interest of C.M., S.M., D.M., and J.M., 996 S.W.2d. 269, 270 (Tex. App. 1999). As such, a properly pled and proved violation of the ADA by the agency would defeat the petition to terminate parental rights. Id.

All of the options discussed by other state courts present analytical problems and practical difficulties. No state court opinion yet satisfactorily reconciles the need for the court to act in the best interests of the child and at the same time protect parents with disabilities against discrimination by public agencies and loss of fundamental rights based on prejudice and stereotype. See, School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987).

There is no question that a timely discrimination complaint made prior to a court proceeding to terminate parental rights is theoretically the most effective and efficient way to raise and determine social service discrimination claims. All discrimination claims, whether they be based on disability, race, or gender, are more neatly resolved prior to an adverse judgement against the claimant. However, as the facts of this case illustrate, it is unrealistic to expect that all parents with disabilities, in a position of dependency upon DSS, will have the ability to raise a reasonable accommodation issue prior to hearing. As this case illustrates, it is only when counsel is appointed that the issue is likely to be raised and pursued. In the event that an individual with a disability does not raise his or her discrimination claim prior to the filing of a petition to terminate parental rights, (or if the individual raises the claim, but it remains unresolved at the time a petition is filed), judges who preside over termination of parental rights proceedings are well-situated to evaluate whether DSS offered "services intended to correct the circumstances," and it follows naturally, that a court’s evaluation include an assessment as to whether DSS provided reasonable accommodations in its services to qualified individuals with a disability. G.L. c. 210, §3.

Also, state trial court judges should not take comfort in the belief that victims of discrimination in care and protection proceedings may file independent claims in federal court. Aside from the practical barrier to waging a separate lawsuit against DSS in federal court, ADA claims made during or after a state court proceeding determining parental rights are likely to be dismissed either under the federal abstention doctrine, (Younger v. Harris, 401 U.S. 37 (1971)), or because the federal court lacks subject matter jurisdiction to decide claims that are inextricably intertwined with a state court determination.

Thus, Amici respectfully suggest that if parents’ ADA and state law rights to reasonable accommodations are to be seriously considered and DSS' ADA and state law obligations are to be enforced, those rights and obligations must be determined by the court during the course of the care and protection proceedings.

However, adjudicating the reasonable accommodation claim in the context of a proceeding to terminate parental rights does not mean that the approach adopted by the Court of Appeals of Texas, posing the claim as an affirmative defense, should be followed. The proposition that proof of an ADA and state law violation by DSS bars the termination of personal rights is ultimately untenable. It unnecessarily escalates the tension arising from the courts’ mission to uphold the best interests of the child and its duty to protect parents from unlawful discrimination that jeopardizes fundamental rights. See Santosky v. Kramer, 455 U.S. 745 (1982). At best, the likely consequence of this tension is a cursory review and rationalization of the agency's conduct. At worst, it results in procedural avoidance of the discrimination issue that itself may serve to perpetuate the discriminatory treatment of parents with disabilities.

Rather than follow the path of other state courts, Amici urge this court to fashion a procedural approach and a remedial framework that enables the trial court to both honor the best interests standard and protect parents from discrimination. Such an approach should: 1) allow timely ADA and state law discrimination claims to be made and heard; 2) require the parent to establish a prima facie case that he or she has been discriminated against by DSS; 3) provide DSS with the opportunity to rebut the inference of disability discrimination by demonstrating that it made efforts to modify its service plan and accommodate the parent with a disability, and that further modification would be unreasonable; 4) allow the court to stay any termination of the parental rights of a qualified parent with a disability pending the implementation of a non-discriminatory service plan; and 5) allow the court to issue a specific remedial order related to modification and accommodation.

The same individualized inquiry is required for judicial determinations of parental fitness. This Court stated that "[p]arental unfitness must be determined by taking into consideration a parent’s character, temperament, conduct, and capacity to provide for the child..." Adoption of Mary, 414 Mass. 705, 711 (1993).

The framework suggested here for consideration of ADA and state law violations does not interfere with or impede the judge in "the navigation of the cross currents involved in determining the fitness of patents and the best interest of the children." Id. at 709.

In this respect it is important to keep in mind that the federal and state non-discrimination mandates are not absolute. It is well established that the duty of a public agency, such as DSS, to modify its services to accommodate individuals with disabilities can be limited in that DSS does not have to make accommodations that are unduly costly or burdensome. See Alexander v. Choate, 469 U.S. 287 (1985); Southeastern Community College v. Davis, 442 U.S. 397 (1979).

Thus, when the extreme step of terminating the parent-child relationship of a disabled parent is sought by DSS, the ADA claim simply puts in front of the court the duty which DSS has to reasonably accommodate a disabled parent so that, "[a] judge may properly be guided by evidence demonstrating reason to believe that a parent [with a disability, with reasonable accommodations] will correct a condition or weakness that currently disables the parent from serving his or her child’s best interests." Adoption of Carlos, 413 Mass 339, 350 (1992).

The ADA and state law do not elevate the prerogatives of parents with disabilities above the interests of their children. They simply provide an equal opportunity for parents with disabilities to participate in services readily made available to parents without disabilities so they, too, can correct the circumstances that may, without correction, lead to an adverse determination of their fitness as parents.

For the reasons stated above, this Court should conclude that both Massachusetts law and the ADA impose a duty upon DSS to provide reasonable accommodations to the Father. In light of this duty, the order of the trial court terminating the parent-child relationship should be vacated and the case remanded with an order that the trial court reconsider the Father’s reasonable accommodations claim and make necessary findings of fact in conformance with this Court’s opinion.

Respectfully submitted,

_______________________ ________________________

Leigh W. Mello Colby C. Brunt

BBO# 567995 BBO# 643556

Disability Law Center Frank J. Laski

11 Beacon Street, BBO# 287560

Boston, MA 02108 Miriam H. Ruttenberg

(617) 723-8455 BBO# 642277

Mental Health Legal

Advisors Committee

Dated: January 26, 2001 294 Washington Street,