We have a CPS final hearing coming up in which I expect the mother to raise the Americans with Disabilities Act as a defense to our allegation that she did not comply with the plan of service.

Has anyone else dealt with this before, and would you be willing to share your thoughts about how to tackle this?

Basically, the situation here is that the mother has a siezure disorder and has not completed (among other things) her inpatient drug rehab. The siezures are a contributing factor to that. I expect to be able to put on testimony from her physician that she is not taking her siezure medication correctly. Also, the fact that she continues to use drugs probably does not help her situation any.

Any thoughts or suggestions are appreciated.

There was a previous thread on this issue recently. There are two briefs on this subject in the texas lawyers for children form vault. Mine is downloaded there. I moved jobs and do nothave it on my computer anyomore or I would send it to you. Basically I argued that ADA was not an affirmatvie defense to termination in Texas.

If the argument that the ADA does not apply is unsuccessful, or if your introduction of her siezure medication opens the door to the ADA argument with regard to her access to a public program, argue that the ADA does not protect current illegal drug use. Also, if you receive certain types of federal funding, consider they might try to raise a Rehabilitation Act argument.

Without knowing her issues it is hard to comment on her success with the argument. I did note that the feds are hitting up local government on lack of access to public programs, such as programs for victims of family violence. (Ask Gregg County about their recent settlement) I don't know if it would cover court-related programs for dyfunctional parents. There are some good illustrations at http://www.ada.gov/taman3.html that might help with some practical arguments.

Good Luck!

I would really encourage you to object if they bring up the ADA in your trial and they did not plead it as an affirmatvie defense and argue they waived this issue and claim surprise. If they did plead it, I would file a special excpetion. It appears in the appellate world of CPS, the department's attorney is not objecting to this defesne and just claiming they did comply. Almost every state that has ruled on this issue is saying the ADA does not apply to our cases as a defense to abuse or neglect ot their children. We really need to take this to the Texas Supreme Court to get some clarification.

I have prepared a special exception that will be filed today arguing that it is not a defense. It does appear that CPS never argues that in the appeals; only that it was waived. Thanks again!