In re A.P., 281 N.C. App. 347 (2022)

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Held:

Affirmed in Part

Vacated and Remanded in Part

Facts: The juvenile was adjudicated neglected based on circumstances involving a lack of proper care and supervision. Mother has an intellectual disability in the moderate range, is under a guardianship with her paternal aunt, and was not providing basic care for her infant (e.g., knowing how to change diapers). Mother also has depression and anxiety. Mother entered into and was working on a case plan with DSS. She completed a comprehensive psychological evaluation and was engaging in parenting classes with a parenting coach. Although arranged for by DSS, mother declined services for mental health treatment and from participating in an assisted living facility that would work with her on independent skills. Father was identified and his paternity was established and child was placed with him. At a permanency planning hearing, the court ordered legal and physical custody to father; 2 hours of supervised visitation every other weekend to mother, with father to determine the location and supervisor; and waived further hearings. Mother appeals. She raises the Americans with Disabilities Act (ADA) and her need for reasonable accommodations in her appeal.
Title II of the ADA and Section 504 of the Rehabilitation Act “protect parents and prospective parents with disabilities from unlawful discrimination in the administration of child welfare programs, activities, and services.” 281 N.C. App. at 353 (citation omitted). There is no dispute mother is a qualified individual with a disability for ADA and Section 504 purposes.
DSS reasonable efforts: Relying on the holding of In re C.M.S., 184 N.C. App. 488 (2007) related to a termination of parental rights, “[b]ecause the trial court in this case concluded ‘DSS has made reasonable efforts to reunify and eliminate the need for placement of the juvenile,’ it necessarily complied with the ADA’s directive that a parent not be ‘excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program.’ ” 281 N.C. App. at 354.
- The trial court’s conclusion of law re: DSS providing reasonable efforts is supported by its findings of fact, which include referrals for mother to complete her case plan, attempting to engage mother in services recommended by the psychological evaluation, attempting to enroll mother in an assisted living facility that would provide training to mother on independent skills, monitoring mother’s compliance and progress with her case plan, and assisting with supervised visits that had parenting skills teachers present. The findings were supported by competent evidence: social worker testimony, GAL and DSS reports, evaluator’s assessment.
ADA compliance and the adequacy of services. Mother waived her argument that the services offered by DSS were inadequate under the ADA because she did not timely raise the issue – either before or during the permanency planning hearing. Instead, she raised it for the first time on appeal. A claim of an ADA violation must be timely raised, meaning at the time the court adopts a service plan, so that reasonable accommodations can be made. See In re Terry, 240 Mich. App. 14 (2000); see also In re S.A., 256 N.C. App. 398 (2017) (unpublished).
The visitation order improperly delegates father “substantial discretion to decide the circumstances of Respondent-mother’s visits” – choosing the location and supervisor. 281 N.C. App. at 362-63. Mother’s argument that the order also fails to provide a reasonable accommodation is rejected as there was no support provided for that argument. The visitation order meets the minimum requirements of G.S. 7B-905.1 (frequency, length, supervision). However, father testified he didn’t want to facilitate or supervise the visits and didn’t want mother to be involved in their child’s life. This is the scenario the court of appeals cautioned against in In re Stancil, 10 N.C. App. 545 (1971) – visitation should not be delegated to a custodian-parent when the parents have been unable to reach a satisfactory agreement about custody and visitation rights; granting the custodian-parent the authority to decide when, where, and under what circumstances a visit happens, could result in the other parent being completely denied their visitation rights.
Like TPR proceedings, “abuse, neglect, and dependency proceedings are not ‘services, programs, or activities’ within the meaning of the ADA, and therefore, the ADA does not create special obligations in such child protection proceedings.” 281 N.C. App. at 362. The trial court satisfied the statutory criteria of G.S. 7B-906.1(k) and 7B-905.1(d) when it waived further hearings and notified the parties of their right to file a motion to review the visitation plan. The ADA does not require regular hearings continue as it does not “change the obligations imposed by [these [G.S. 7B-906.1 and -905.1]] unrelated statutes.’ ” 281 N.C. App. at 362.