In re Moore9/5/2000
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In the present case, the conflict arose in Felerski's role as Williams' attorney. Accordingly, the trial court properly granted Felerski's motion to withdraw as attorney. However, there was no conflict which required Felerski to also withdraw from her position as guardian ad litem. Felerski continued to advocate on Williams' behalf, and indeed took the same stance that Williams' later appointed counsel took, advocating to the trial court that the motion for permanent custody be denied. The guardian ad litem was appointed to protect Williams' interests and, as conceded by Williams, adequately performed this duty. Finding no error in the appointment, we overrule Williams' second assignment of error.
Assignment of Error No. 3:
OHIO REVISED CODE SECTION 2151.414 VIOLATES STATUTORILY PROTECTED EQUAL PROTECTION RIGHTS OF A PARENT SUFFERING FROM A MENTAL DISABILITY.
In her third assignment of error, Williams contends that " s a matter of law, Ohio Revised Code section 2151.414 violates the Americans with Disabilities Act because it prohibits the trial court from considering alternatives that would comply with 'reasonable accommodations' required by the ADA."
Title II of the Americans with Disabilities Act of 1990 ("ADA"), Section 12132, Title 42, U.S. Code, prohibits public entities from discriminating based on disability. The ADA was enacted to eliminate discrimination and create causes of action for qualified people who have faced discrimination. Section 12101(b), Title 42, U.S. Code. In pertinent part, the ADA 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." Section 12132, Title 42, U.S. Code.
The Ninth District Court of Appeals is the only Ohio court which has addressed the applicability of the ADA in a termination of custody case. See In re Ciero Rodriguez and Emilio Lopez (Aug. 4, 1999), Wayne App. No. 98CA007073, 1999 WL 568115, unreported. The Rodriguez court began by noting that the ADA, more than merely proscribing discrimination against individuals with disabilities, also articulates the means through which compliance with the ADA is to be obtained. Id. at *8. In adopting the ADA, Congress adopted the remedies and procedures that it had previously selected to enforce compliance with the Rehabilitation Act. Id.; Section 12133, Title 42, U.S. Code. These remedies and procedures were adopted from the enforcement provisions of the Civil Rights Act of 1964. Section 35.164, Appendix A, Title 28, C.F.R.
The procedure for enforcing the ADA begins with filing a complaint with a designated agency. Id. If appropriate, the agency will refer the case to the Department of Justice, which may file suit in a federal district court. Id. An alternative procedure is for a private individual to directly initiate an action in equity, with or without waiting for the federal administrative procedure to run its course. Id. All of the remedies and procedures provided by the ADA contemplate affirmative action on the part of the injured party.
The Rodriguez court concluded that neither Title II of the ADA, nor the related regulations, provide that the assertion of a violation of the ADA by a public entity may be used as a defense against a legal action by the public entity. Rodriguez at *8, citing Sections 12131-12134, 2000e-16, and 2000e-5(f)-(k), Title 42, U.S. Code; Section 794a, Title 29, U.S. Code; Sections 35.101-35.190, Title 28, C.F.R.; Section 35, Appendix A, Title 28, C.F.R. We agree with the conclusion of the Rodriguez court
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