Other Cases Affecting Children

In re Anthony P. (2000) 84 Cal.App.4th 1112 [101 Cal.Rptr.2d 423]. Court of Appeal, Fourth District, Division 3.

The trial court terminated the parental rights of a mother who suffers from schizoaffective disorder. The mother, according to her physicians, is unable to provide for her own basic needs and will always remain in a locked facility.

The child, nine years old, resided with his mother's sister, who was interested in adopting him. The child's father is unknown and his parental rights were terminated. When the mother's sister filed a petition to declare the child free from parental custody and control, the mother opposed the petition, claiming that Title II of the Americans With Disabilities Act (ADA) prevented the termination of parental rights. The trial court rejected this argument. The trial court, in freeing the mother of parental custody and control over her child, also determined that the mother is mentally disabled and is unable to care for the child in the foreseeable future. The mother appealed.

The Court of Appeal affirmed the judgment of the trial court. The mother asserted that Title II of the ADA pre-empts states from terminating the parental rights of persons who are gravely disabled. States may not discriminate against disabled persons in the provision of their "services, programs, or activities" (42 U.S.C. § 12132), and mental disorders are disabilities that fall within the purview of the ADA. Family Code sections 7826 and 7827 provide that when a parent has been declared to be developmentally disabled, mentally ill, or mentally disabled and will not be able to support or control the child in a proper manner, a proceeding under section 7802 may be brought. The appellate court determined, based on precedent case law and its own analysis, that the type of proceeding of Anthony P. is not a "service, program, or activity" within the meaning of Title II of the ADA. Therefore, federal law does not pre-empt the termination of parental control and custody. The mother also argued that she should have been interviewed by the state's investigating social worker and that her rights could not be terminated because the father also had not been interviewed. Neither of these arguments persuaded the appellate court. The social worker had interviewed the mother's treating physician and learned that the mother was unable to discuss the issues rationally. Also, the mother had no standing to raise the father's lack of due process in her own case objecting to the termination of her parental rights.