The Indiana Supreme Court has denied transfer of a case in which a father argued that the Department of Child Services’ failure to comply with the American with Disabilities Act when providing discretionary services should void the termination of his parental rights. However, two justices dissented from that decision, writing that DCS should always be required to comply with the ADA, not just when providing mandatory services, and that any non-compliance should be grounds for a defense.
In an order posted Friday, Justices Mark Massa and Geoffrey Slaughter and Chief Justice Loretta Rush denied transfer in the case of In the Termination of the Parent-Child Relationship of N.C. and A.C.; A.C. v. Indiana Department of Child Services, Child Advocates, Inc., 49A02-1510-JT-01711. The case was on appeal from the Indiana Court of Appeals, which decided in June that the ADA does not apply in termination of parental rights proceedings.
A.C., the father in the case whose parental rights to his son, N.C., a child in need of services, were terminated, had argued that DCS had failed to accommodate his cognitive and mental disabilities and his status as a deaf man, and that such failure is a defense. The Court of Appeals disagreed, as did the majority of justices.
However, Justice Steve David wrote in a dissenting opinion that he would have granted transfer in the case and specifically referenced the case of Stone v. Daviess County Division of Children and Family Services, 656 N.E.2d 824 (Ind. Ct. App. 1995), which the appellate court had used as precedent in its decision.
David wrote that he disagreed with a portion of the Stone decision that found that “any alleged noncompliance with the ADA by (DCS) in the provision of services … would be a matter separate and distinct from the operation of our termination statute.”
“In my view, whether DCS is required to provide services or merely exercise its discretion to do so makes no difference; in either case, if DCS is, in fact, providing services it must comply with the ADA and failure to comply with the ADA should be grounds to challenge the termination proceeding,” David wrote. “To hold otherwise would deny disabled parents meaningful relief.”
Instead, David said his opinion aligned more closely with that of the Utah Supreme Court in the case of State in Interest of K.C., 2015 UT 92, 21, 362 P.3d 1248, 1252-53 (Utah 2015). In that opinion, the Utah high court wrote that it rejected the notion “that the ADA may be invoked only as a separate cause of action in an independent proceeding – and not as a defense or other means of altering a service plan by a parent in a termination proceeding. An independent claim for damages would be an inadequate remedy for alleged discrimination in the provision of reunification services for a parent, especially given the fundamental right to parent at stake in such proceedings.”
Although David wrote that he believed DCS had reasonably accommodated A.C., he wrote that he would have granted transfer in the case and “hold that a disabled parent may use non-compliance with the ADA as a defense to the termination of his or her parental rights where DCS has provided discretionary services, but failed to provide reasonable accommodations to a disabled parent.”
Justice Robert Rucker concurred with David’s dissent.