J. T. v. Arkansas Dep't of Human Servs.

J.T. v. ARKANSAS DEPARTMENT of HUMAN SERVICES

96-1006                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 30, 1997


1.   Appeal & error -- review of chancery court decisions --
     clearly erroneous standard. -- When the burden of proving a
     disputed fact in chancery is by clear and convincing evidence,
     the inquiry on appeal is whether the chancery court's finding
     that the disputed fact was proven by clear and convincing
     evidence is clearly erroneous; clear and convincing evidence
     is defined as "that degree of proof which will produce in the
     factfinder a firm conviction as to the allegation sought to be
     established"; in making such a determination, the supreme
     court must give due regard to the opportunity of the trial
     court to judge the credibility of the witnesses.    

2.   Parent & child -- termination of parental rights -- burden on
     party seeking to terminate relationship. -- When the issue is
     one involving the termination of parental rights, there is a
     heavy burden placed upon the party seeking to terminate the
     relationship; termination of parental rights is an extreme
     remedy and is in derogation of the natural rights of the
     parents; however, parental rights should not be allowed to
     continue to the detriment of the child's welfare and best
     interests.

3.   Parent & child -- termination of parental rights -- basis for
     order. -- An order terminating parental rights must be based
     on a finding by clear and convincing evidence that it is in
     the best interest of the juvenile based upon one of the
     grounds enumerated in Ark. Code Ann.  9-27-431, including a
     finding that the minor child has been adjudicated dependent-
     neglected, has been out of the home for twelve months, and,
     despite meaningful effort by the Department of Human Services
     to rehabilitate the home and correct the conditions that
     caused removal, the conditions have not been remedied by the
     parent.

4.   Parent & child -- trial court's determination that appellant
     did not have capacity to be type of parent that child needed
     not clearly erroneous -- trial court's decision to terminate
     parental rights supported by clear and convincing evidence. --
     The finding of the trial court that appellant did not have the
     capacity to be the type of parent her child needed was not
     clearly erroneous in light of the testimony provided by the
     child's therapist, the appellant's therapist, and a
     psychiatrist, along with appellant's concession that she was
     not yet ready to take care of the child on a permanent basis;
     the evidence demonstrated that the trial court's decision to
     terminate appellant's parental rights was supported by clear
     and convincing evidence and that such decision was in the best
     interest of the child.
5.   Parent & child -- proceeding to terminate parental rights --
     two-step process -- trial court made necessary finding that
     appellant was unfit parent. -- A proceeding to terminate
     parental rights is a two-step process, requiring the trial
     court to find (1) that the parent is unfit and (2) that
     termination of the parent's rights is in the best interest of
     the child; appellant's contention that the trial court did not
     make a finding that appellant was unfit was without merit;
     although the trial court did not actually use the word
     "unfit," the court clearly made a finding that appellant was
     unable to be the type of parent that her child needed and that
     she was not able to learn how to be that parent; such a
     determination by the trial court was a sufficient finding of
     appellant's unfitness, and the finding was supported by clear
     and convincing evidence.

6.   Parent & child -- termination of parental rights -- Americans
     With Disabilities Act requires that "reasonable
     accommodations" be made to parents with disabilities. --
     Arkansas Code Ann.  9-27-341(b)(2)(A) requires a "meaningful
     effort" by appellant to rehabilitate the home and correct the
     conditions which caused the removal of the child as dependent-
     neglected; in the event termination of parental rights is
     based upon factors which arose subsequent to the original
     dependency-neglect petition, appellant must make "reasonable
     accommodations," in accordance with the Americans With
     Disabilites Act, to parents with disabilities in order to
     allow them meaningful access to reunification and family
     preservation services.

7.   Parent & child -- "reasonable accommodations" as required by
     ADA made -- parent's rights under ADA must be subordinated to
     rights of child. -- Appellee provided "reasonable
     accommodations" to appellant to allow her a meaningful access
     to reunification services where appellant was provided with a
     mental evaluation, therapists, and prescribed medication for
     her mental illness, as well as access to family therapy,
     parenting classes, Alcoholics Anonymous sessions,
     transportation, and various casework services; appellant was
     additionally provided general visitation with the child, and
     was only denied that visitation when it became detrimental to
     the child; the parent's rights under the Americans With
     Disabilities Act must be subordinated to the protected rights
     of the child; all juvenile court proceedings are to be viewed
     in terms of what is in the best interest of the child. 

8.   Parent & child -- appellant's contention without merit -- case
     relied upon inapplicable. -- Appellant's contention that it
     was error for the doctor to deny her access to her daughter
     without making an individualized assessment of the risk posed
     by appellant was without merit; appellant relied upon a case
     that held that in order to determine whether a person
     handicapped by a contagious disease is "otherwise qualified"
     to do the job, the trial court must conduct an individualized
     inquiry and make appropriate findings of fact based upon
     medical knowledge about the nature, duration, and severity of
     the risk posed to the general public; this holding was
     inapplicable because appellant was not handicapped by a
     contagious disease, and it was not alleged that she posed a
     threat to the general public. 

9.   Parent & child -- termination of parental rights -- no
     unlawful delegation of judicial authority by trial court --
     therapists and caseworkers must be allowed some discretion. --
     There was no unlawful delegation of judicial authority by the
     trial court where visitation was only denied during those
     periods of time that the court and the child's therapists
     determined such contact would be detrimental to the child;
     therapists and caseworkers must be allowed some discretion in
     carrying out the orders of the court in cases where a child's
     emotional, mental, or physical health is at stake;
     furthermore, because there was clear and convincing evidence
     presented indicating that appellant lacked the capacity or
     ability to care for her child, the issue of whether appellant
     was denied regular visitation with her daughter was moot.

     Appeal from Pulaski Chancery Court, Tenth Division (Juvenile);
Joyce Williams Warren, Chancellor; affirmed.
     Suzanne Penn, for appellant.
     Ed Wallen, Office of Chief Counsel, for appellee.
     Merry Alice Bost Hesselbein, Guardian Ad Litem.

     Donald L. Corbin, Justice.
     Appellant J.T. appeals the judgment of the Pulaski County
Chancery Court terminating her parental rights to T.T., who is now
thirteen years of age, pursuant to Ark. Code Ann.  9-27-341 (Supp.
1995), and authorizing Appellee Arkansas Department of Human
Services ("DHS") to consent to the adoption of T.T.  Appellant
raises three points for reversal that necessarily involve our
interpretation of section 9-27-341; hence, our jurisdiction is
pursuant to Ark. Sup. Ct. R. 1-2(a)(17)(vi) (as amended by per
curiam July 15, 1996).  We find no error and affirm.
                  Facts and Procedural History
     The duration of this case was approximately two years, during
which time there were numerous hearings conducted before the
chancery court.  The evidence presented below reveals the following
facts.  On March 18, 1994, DHS filed a petition for emergency
custody of T.T., asserting that the child was dependent-neglected
as defined in Ark. Code Ann.  9-27-303 (Repl. 1993).  The
affidavit attached to the petition reflected that T.T. was at risk
for emotional abuse due to the fact that she was living with her
mother in a shelter, that her mother had a history of running from
shelter to shelter, state to state, and that T.T. was not attending
school regularly.  The affidavit particularly described two
specific incidents which had occurred at T.T.'s school.  On March
16, 1994, Appellant forced T.T. into school through the use of an
armlock behind the child's back and by pulling the child's hair. 
When T.T. visited with the school counselor that same date, the
child reported that she had experienced pictures in her head, that
she had no memories of earlier times in her childhood, and that she
had been in foster care when she was two years of age and had been
sexually abused.  On March 17, 1994, Appellant again accompanied
T.T. to school where Appellant lost control, displaying disruptive
behavior and loud cursing for approximately forty minutes.  The
affidavit also indicated that a psychiatrist at the Arkansas
Children's Hospital had diagnosed Appellant as being mentally ill,
but that Appellant had not accepted services which would comply
with prescribed treatment.  Additionally, T.T. was exhibiting the
same symptoms that Appellant had, such as delusions and paranoia. 
The order granting the emergency custody was filed on March 22,
1994.  
     After a hearing on April 22, 1994, and based on the
stipulation of the parties that the allegations contained in the
petition were true, T.T. was adjudicated dependent-neglected.  The
stated goal of the case was one of reunification of the family.  In
the meantime, T.T. was ordered to pursue residential treatment and
to participate in family therapy with Appellant.  Appellant was
likewise ordered to seek treatment by receiving a psychological
evaluation and following any recommendations for medication and
treatment.  
     On August 31, 1995, DHS filed a petition to terminate
Appellant's parental rights.  The petition stated that the minor
child had resided outside the parental home for a period in excess
of one year and, despite meaningful effort by DHS to rehabilitate
the home and correct the conditions which caused removal, the
conditions had not been remedied by Appellant to the extent that
she was able to provide for the essential and basic needs, as well
as the specific emotional needs, of T.T.  Appellant responded to
the petition by arguing that (1) DHS had violated the Americans
with Disabilities Act by denying her visitation with T.T. and (2)
the trial court had unlawfully delegated judicial authority by
allowing visitation to be determined by what the child's therapist
recommended and by what the child desired.  
     After receiving testimony and other evidence during four
separate hearings conducted on December 8, 1995, January 26, 1996,
March 5, 1996, and March 15, 1996, the trial court entered an order
terminating Appellant's parental rights and authorizing DHS to
consent to the adoption of T.T.  This appeal followed.  
                 Termination of Parental Rights
     For her first point for reversal, Appellant argues that the
trial court erred in finding clear and convincing evidence to
terminate her parental rights.  This court has stated that when the
burden of proving a disputed fact in chancery is by clear and
convincing evidence, the inquiry on appeal is whether the chancery
court's finding that the disputed fact was proven by clear and
convincing evidence is clearly erroneous.  Anderson v. Douglas, 310
Ark. 633, 839 S.W.2d 196 (1992).  Clear and convincing evidence is
defined as "that degree of proof which will produce in the
factfinder a firm conviction as to the allegation sought to be
established."  Id. at 637, 839 S.W.2d  at 198.  In making such
determination, we must give due regard to the opportunity of the
trial court to judge the credibility of the witnesses.  Id.  
     When the issue is one involving the termination of parental
rights, there is a heavy burden placed upon the party seeking to
terminate the relationship.  Id.; Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984).  Termination of parental rights is an extreme
remedy and is in derogation of the natural rights of the parents. 
Anderson, 310 Ark. 633, 839 S.W.2d 196.  This is not to say,
however, that parental rights should be allowed to continue to the
detriment of the child's welfare and best interests.  In Burdette
v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986), the court of
appeals held:
          While we agree that the rights of natural parents
     are not to be passed over lightly, these rights must give
     way to the best interest of the child when the natural
     parents seriously fail to provide reasonable care for
     their minor children.  Parental rights will not be
     enforced to the detriment or destruction of the health
     and well-being of the child.

Id. at 109, 711 S.W.2d  at 180.
     Section 9-27-341 provides for the termination of parental
rights upon petition by DHS.  Subsection (a) provides in part:
     The intent of this section is to provide permanency in a
     juvenile's life in all instances where return of a
     juvenile to the family home is contrary to the juvenile's
     health, safety, or welfare, and it appears from the
     evidence that return to the family home cannot be
     accomplished in a reasonable period of time.  
Subsection (b) provides that an order terminating parental rights
shall be based on a finding by clear and convincing evidence that
it is in the best interest of the juvenile based upon one of the
enumerated grounds, including a finding that the minor child has
been adjudicated dependent-neglected, has been out of the home for
twelve months, and, despite meaningful effort by DHS to
rehabilitate the home and correct the conditions which caused
removal, the conditions have not been remedied by the parent.
     During the hearings conducted below, the following pertinent
evidence was presented.  T.T., who was eleven years of age at the
time she testified, said she wanted to live with her foster mother
because she had more of a normal life and she felt safer there. 
She said she had a regular school to go to and that she was not
afraid that she would have to move around again.  She said she did
not really have a normal life when she lived with her mother, and
that if she had to live with her mother again, it would not be good
because her mother could not take care of her and would probably
move again.  She said her mother was hardly taking care of herself. 
She said that there were times when she was afraid while she was
with her mother, and that sometimes her mother would "act like she
was fighting a sumo wrestler or something."  She indicated that she
was afraid that she would catch her mother's disease, and that she
knew for a fact that she could catch the disease because when she
lived with her mother, she started acting like her mother.  She
said that she felt sad about her mother's right to visit her in the
future being taken away because she did not want to hurt her
feelings.  She indicated that she loved her mother and wanted to
see her have a good life, but that her visits with her mother made
her feel uncomfortable.  She said that even if her foster mother
could not adopt her and DHS would have to look for another place
for her, she would still want her mother's parental rights taken
away.          
     Catherine Chaumont, a therapist with the Centers for Youth and
Families, testified that T.T. entered the children's residential
program at the Arkansas Children's Hospital on June 6, 1994, and
that she was initially diagnosed as having shared psychotic
disorder for which she was hearing voices and having
hallucinations.  She described persons diagnosed with shared
psychotic disorder as having a close relationship with someone who
has a psychotic disorder and exhibiting those psychotic behaviors,
which they are exposed to on a regular or long-term basis by the
other person.  She stated that, initially, T.T. was extremely
oppositional and non-compliant, to the extent that she would not
follow rules and, at times, she required restraints, physical
holds, and closed-door seclusions in order to secure her safety and
the safety of the staff and the other children.  She indicated that
T.T. was extremely fearful of her mother and that, initially, she
had been very reluctant to have contact with her mother, even
during family therapy sessions.  She stated that by October 1995,
T.T.'s diagnosis had changed to one of oppositional defiant
disorder, a less severe diagnosis, which indicated that she was
getting better.  She indicated further that the relationship
between Appellant and T.T. was improving and that there was a bond
between them.  She stated that there were, however, times when
Appellant appeared to become very agitated by some of T.T.'s
questions.  In one recent session, when T.T. had continued to press
for answers involving verification of her birth, Appellant's tone
of voice had escalated and she became short with the child.  She
stated that recently T.T. had become more aggressive and
noncompliant, requiring physical holds on her, which she had not
required since she had been discharged from residential treatment
in 1994.  She stated further that it was apparent that T.T. began
decompensating in early February 1996, coinciding with the
continuance of the court hearing on the petition to terminate
Appellant's parental rights.  
     Ms. Chaumont ultimately recommended that T.T. be placed for
adoption and that Appellant's parental rights be terminated.  She
indicated that, although Appellant had done everything that had
been asked of her by the court, and although her relationship with
T.T. had improved significantly, T.T. still required more than
Appellant was able to provide.  She stated that T.T. was a "high
risk" child and that because of her high needs, Appellant would not
be able to maintain the child and keep her stable.  She stated that
T.T. needed a structured environment and needed parents who would
confront her, setting very firm limits on her behavior and being
able to enforce those limits by resisting the child's challenges,
threats, and verbal abuse.  She stated further that when T.T. is
around Appellant, she exhibits characteristics of a parentified
child, one who assumes the role of acting parent, showing more
parenting skills than the mother and sometimes assuming charge of
the household.  She stated that no amount of training or classes
would enable Appellant to meet the needs of T.T.  She stated that
T.T. needed closure to this situation and that the child was even
at the point of trying to recruit potential parents to adopt her. 
     Gail Brown, Appellant's therapist, testified that Appellant
had been diagnosed as being alcohol dependent, having bipolar
disorder, and being manic type.  She stated that Appellant was at
that time undergoing therapy and treatment by medication.  She
estimated that Appellant had a Global Assessment of Function score
of 68, out of a possible 100.  She stated that a normal functioning
person would score somewhere in the 90s and that a score of 68
would put Appellant at a level of functioning with mild symptoms,
some depressed mood or mild insomnia, some difficulty in social,
occupational, or school functioning, but generally functioning
pretty well and having some meaningful interpersonal relationships. 
She stated that Appellant would need to continue her therapy and
take medication for the rest of her life.  When asked if she
thought T.T. should be returned to Appellant at that time, she
stated that it would be best for Appellant that there be
reunification with supervision through a gradual integration,
involving visitation overnight and on weekends.
     Dr. Nita Brown, a psychiatrist with the Centers for Youth and
Families, testified that she had conducted a mental status
examination on Appellant at the time T.T. was admitted to the
Centers in June 1994.  She stated she had observed Appellant having
looseness of association, flight of ideas, and bizarre and paranoid
ideation.  She stated that while she was conducting the
examination, Appellant became increasingly agitated, such that
Dr. Brown terminated the session when Appellant physically
approached Ms. Chaumont in a threatening manner.  She stated that
T.T. had expressed some fears of her mother and that the child had
indicated that her mother had told her that people were trying to
kill her (T.T.) or trying to electrocute her.  Pertaining to
Appellant's mental condition, Dr. Brown described bipolar disorder
as a mood disorder in which a person experiences mental states
varying from manic, to psychotic, to depressed.  During the manic
moods, Dr. Brown stated, the person begins to have poor judgment
and can become paranoid and have delusional and bizarre ideas.  She
stated further that bipolar disorder is a highly variable disease,
at times affecting the person's life only minimally, and other
times affecting the person to a point where she is totally
incapacitated.  She stated that T.T.'s emotional requirements are
such that she needs an extremely stable environment, which could
not be adequately provided by Appellant because the course of the
bipolar illness is characterized by ups and downs and by periods of
deterioration.  She stated further that, in her opinion, no amount
of parenting classes or education could enable Appellant to give
T.T. the stability she needs.   
     Appellant testified at the December 8, 1995 hearing that T.T.
should be returned to her custody "eventually," after they had more
therapy and visitation.  She stated that she was asking the court
to give her more help and more parenting classes.  At the
January 26, 1996 hearing, Appellant again expressed a desire to
have more therapy before she would be ready to take custody of T.T.
She stated that she did not think it was a good idea for T.T. to
come home with her at that time.  She stated that she felt they
needed to spend more time together, perhaps in the form of weekend
visits, before she took custody of the child.  She stated that she
knew what it meant when the therapists referred to T.T. being
oppositional and that she would deal with that behavior by taking
additional classes.  Appellant also indicated that she was not
working and that she was currently in a relationship with a man who
was an alcoholic and who had not stopped drinking.  It was further
deduced over the course of the hearings that Appellant had had
several relapses with alcohol, the most recent occurring in October
1995.
     In making the determination to terminate Appellant's parental
rights, the trial court stated:
     The Court finds that the mother's mental illness was a
     factor that caused the child to enter foster care.  The
     Court further finds that the mother has had consistant
     [sic] treatment for her mental illness and will need
     continued treatment for the rest of her life.  The child
     has had some psychiatric difficulties also and has
     improved since entering foster care.  However, the Court
     cannot close its eyes to the fact that it must do what is
     in the best interest of [T.T.] who is entering
     adolescence, is parentified, and needs a parent or care
     giver who can be confrontive and set limits, be resistant
     to challenges, threats, and verbal abuse that this child
     can exhibit.  This child also needs to definitely know
     what is going to happen in her life.  The Court notes
     that this case had been ongoing and that now is the time
     to make a permanent plan for the child.  Ms. Chaumont,
     the child's Therapist, testified last week that the child
     in the past several weeks has become markedly non-
     compliant and that school grades have plummeted, and that
     the child needs closure on this issue.  The Court finds
     that the mother is unable to be the type of parent that
     this child needs and she is not able to learn how to be
     that parent.  The Court notes that this is sad because
     the mother loves the child and has really tried to do
     what is required, but it has not yet transpired.  The
     Court finds that long-term foster care is not appropriate
     for this child.  This child is adoptable and, according
     to Ms. Chaumont, is very adoptable.  [Emphasis added.] 

     We conclude that the finding of the trial court that Appellant
does not have the capacity to be the type of parent T.T. needs was
not clearly erroneous, in light of the testimony provided by
Catherine Chaumont, Gail Brown, and Dr. Nita Brown, along with
Appellant's concession that she was not yet ready to take care of
T.T. on a permanent basis.  The foregoing evidence demonstrates
that the trial court's decision to terminate Appellant's parental
rights is supported by clear and convincing evidence and that such
decision was in the best interest of the child.
     Appellant additionally challenges the trial court's ruling on
the ground that the court made no finding of her unfitness as a
parent.  Appellant relies on Quilloin v. Walcott, 434 U.S. 246
(1978), in support of her assertion that there must be a showing of
a parent's unfitness before the parental rights may be terminated
on the basis of what is in the best interest of the child.  While
we agree with Appellant that a proceeding to terminate parental
rights is a two-step process, requiring the trial court to find (1)
the parent unfit and (2) that termination of the parent's rights is
in the best interest of the child, we do not agree with her
contention that the trial court here did not make a finding that
Appellant was unfit.  Although the trial court did not actually use
the word "unfit," the court clearly made a finding that Appellant
was unable to be the type of parent that T.T. needs and that she is
not able to learn how to be that parent.  We conclude that such a
determination by the trial court is a sufficient finding of
Appellant's unfitness, and that such finding is supported by clear
and convincing evidence.
                 Americans with Disabilities Act
     For her next point for reversal, Appellant makes two arguments
involving the Americans with Disabilities Act ("ADA").  Appellant
first argues that she was denied visitation with T.T. on the basis
of her mental disability and that reasonable accommodations should
have been made by DHS to provide visitation services to her,
pursuant to section 9-27-341(b)(2)(E) and the ADA.  She next argues
that it was error for Dr. Nita Brown to have denied her access to
T.T. on the ground that she posed a threat to the child or
Ms. Chaumont without first having conducted an individualized
assessment of the severity and duration of any risk posed by her. 
She contends this was also done in violation of the ADA.  
     The trial court found that DHS had not violated the provisions
of the ADA because any denial of visitation was not based on the
fact that Appellant had a mental disability, but rather, on the
mental and emotional state of T.T.  The court stated that
Appellant's mental disability was a factor considered by the court,
but only to the extent that the disability affected the child in a
detrimental way.  The court noted that it had in the past issued
similar restrictions on visitation in cases where the parents had
no identifiable disability, and also, that there had been cases
when such restrictions were not necessary and where the parental
rights were not terminated even though the parent had a disability
such as mental illness.
     Appellant has presented no direct authority to support her
contention that DHS discriminated against her or failed to provide
any services to her or make reasonable accommodations for her. 
Instead, Appellant merely relies on section 9-27-341(b)(2)(E)(ii),
which provides that DHS will make "reasonable accommodations" in
accordance with the ADA in order to allow meaningful access to
reunification and family preservation services.  For the reasons
outlined below, we affirm the trial court's ruling.   
     The ADA provides in pertinent part that, "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."  42 U.S.C.  12132
(1994).  Whether an individual has been denied the services of a
public entity by reason of the individual's disability is an issue
of first impression in this court.  We thus look to decisions from
other jurisdictions for guidance.  
     In In re Torrance P., 522 N.W.2d 243 (Wis. Ct. App. 1994), the
Wisconsin Court of Appeals determined that the inquiry of whether
the father's rights under the ADA had been violated was separate
from and unrelated to the issue of whether the trial court erred in
terminating the father's parental rights.  The court explained that
Congress enacted the ADA to eliminate discrimination against
persons with disabilities and to create causes of action for those
persons, but Congress did not intend to change the obligations
imposed by unrelated statutes, such as the Wisconsin statute
requiring DHS to make a "diligent effort" to provide court-ordered
services to persons involved in an action for termination of
parental rights.  The court stated that while the father's
developmental disability "must be considered in determining the
reasonableness of the County's efforts, neither his disability nor
the ADA changes the inquiry or the County's burden of proof" under
the relevant Wisconsin statute.  Id. at 245-46.  The court
concluded that any cause of action the father may have had under
the ADA was pursuable under a separate cause of action, but that
such a claim could not be the basis for an attack on an order
terminating parental rights.  
     In In re C.M., 526 N.W.2d 562 (Iowa Ct. App. 1994), the Iowa
Court of Appeals passed over the issue of whether the ADA could be
used as a ground for reversal of an order terminating parental
rights.  The court ultimately ruled that the issue was procedurally
barred because it had not been raised below, although it did
address the merits of the claim in the alternative by stating that
reasonable accommodations had been made by DHS in that the mother
had been provided with a lengthy list of services including those
which accommodated her personality disorder.
     More recently, in Stone v. Daviess County Div. Child Servs.,
656 N.E.2d 824 (Ind. Ct. App. 1995), the Indiana Court of Appeals
addressed a situation more closely akin to that in the present
case, in that both parents and the children displayed mental,
emotional, and psychological problems.  The court initially
determined that because Indiana statutes did not require that
services be provided to any parents in proceedings to terminate
parental rights, the requirements of the ADA were not applicable. 
The court nonetheless addressed the merits of the parents' claim
because the public entity had, in that case, elected to provide
services.  In its review of the claim, the court recognized that
all that was required under the ADA was that the public entity
reasonably accommodate a parent's disability.  The court stated
that, "[i]n the final analysis, the rights of the parents under the
Fourteenth Amendment and the ADA must be subordinated to the
protected rights of the children."  Id. at 831.  The court
concluded that the services provided to the parents had been
sufficiently tailored to meet their disabilities, but that the most
significant factor that had not been remedied was the parents'
denial that there had ever been any inadequacy in the care of their
children.  The court thus determined that any additional services
would not have cured the parents' denial or their chronic parenting
deficiencies.  
     Section 9-27-341(b)(2)(A) requires a "meaningful effort" by
DHS to rehabilitate the home and correct the conditions which
caused the removal of the child as dependent-neglected. 
Subsections (b)(2)(E)(i) & (ii) provide that in the event
termination of parental rights is based upon factors which arose
subsequent to the original dependency-neglect petition, DHS shall
make "reasonable accommodations" in accordance with the ADA to
parents with disabilities in order to allow them meaningful access
to reunification and family preservation services.
     Assuming arguendo that the trial court based its decision to
terminate Appellant's parental rights on any such subsequent
factors, the pertinent inquiry is whether DHS provided "reasonable
accommodations" to Appellant to allow her a meaningful access to
reunification services.  Such accommodations were made in this
case, in the form of providing Appellant with a mental evaluation,
therapists, and prescribed medication for her mental illness, as
well as access to family therapy, parenting classes, Alcoholics
Anonymous sessions, transportation, and various casework services. 
Appellant was additionally provided general visitation with T.T.,
and was only denied that visitation when it became detrimental to
the child.  In that respect, we agree with the reasoning espoused
by the Indiana Court of Appeals that the parent's rights under the
ADA must be subordinated to the protected rights of the child. 
Such reasoning is consistent with the General Assembly's mandate
that all juvenile court proceedings be viewed in terms of what is
in the best interest of the child.  See Ark. Code Ann.  9-27-102
(Supp. 1995).  We thus find no merit to this point.
     Similarly, we find no merit to Appellant's second contention
that it was error for Dr. Brown to deny her access to her daughter
without making an individualized assessment of the risk posed by
Appellant.  In support of this contention, Appellant relies heavily
on School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). 
That case dealt with the issue of whether a teacher, who had been
denied certification because she had tuberculosis, posed a threat
to the general public if she were allowed to continue teaching. 
The Supreme Court held that in order to determine whether a person
handicapped by a contagious disease is "otherwise qualified" to do
the job, the trial court must conduct an individualized inquiry and
make appropriate findings of fact based upon medical knowledge
about the nature, duration, and severity of the risk posed to the
general public.  The holding in that case is thus inapplicable here
because Appellant is not handicapped by a contagious disease and it
was not alleged that she posed a threat to the general public.  The
sole concern here was whether it was in T.T.'s best interest to
have contact with her mother at that particular stage in the
child's therapy.
     We thus conclude that Appellant has failed to demonstrate that
her rights pursuant to the ADA were violated by either DHS,
Dr. Brown, or the trial court.  Appellant was not denied any
services on the basis of her mental disability; rather, the trial
court's denial of visitation with T.T. was motivated solely by what
the court deemed was in the best interest of the emotionally
fragile child.  We further conclude that even if DHS had failed to
make reasonable accommodations for Appellant's disability, such
failure would not negate the trial court's decision to terminate
Appellant's parental rights. 
                Delegation of Judicial Authority
     For her last point for reversal, Appellant argues that the
trial court erred in allowing the therapists and the minor child to
decide whether or not visitation or family therapy would occur. 
She asserts that the lack of regular visitation with her daughter
and the failure to provide family therapy in a timely manner had
"dire consequences" for her.  Appellant does not attempt to explain
what those particular consequences were, nor does she offer any
convincing authority or argument in support of reversal on this
point, which appears to be little more than an alternative attack
on the trial court's decision to deny her visitation with her
daughter.
     For the reasons discussed in the preceding section, we
conclude there was no unlawful delegation of judicial authority by
the trial court, as the visitation was only denied during those
periods of time that the court and the child's therapists
determined such contact would be detrimental to the child.  We are
persuaded by the trial court's well-reasoned determination that
therapists and caseworkers must be allowed some discretion in
carrying out the orders of the court in cases where a child's
emotional, mental, or physical health is at stake.  Furthermore,
because we have determined there was clear and convincing evidence
presented indicating that Appellant lacked the capacity or ability
to care for T.T., the issue of whether Appellant was denied regular
visitation with her daughter is moot.
     Affirmed.
     Thornton, J., dissents.



          Ray Thornton, Associate Justice, dissenting.

     As the majority acknowledges, there is a heavy burden placed
upon the party seeking to terminate the parent-child relationship. 
Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984).  As the United
States Supreme Court stated when setting the "clear and convincing"
standard of proof in Santosky v. Kramer, 455 U.S. 745 (1982), an
allegation of parental unfitness must "adequately [convey] to the
factfinder [a] level of subjective certainty about [the] factual
conclusions . . . since the private interest affected is commanding
and the threatened loss is permanent."  I respectfully dissent
because I do not find that DHS met this burden in showing that J.T.
is unable to learn how to be the kind of parent her daughter needs.
     The Supreme Court has emphasized that a showing of parental
unfitness must be made before the best interest of the child is
considered in a parental-termination hearing.  Smith v.
Organization of Foster Families, 431 U.S. 816 (1978).  As we
pointed out in Bush v. Dietz, although the best interest of the
child is a matter of primary concern in adoption proceedings,
termination of the parental relationship is much more far reaching
than a change of custody.  Statutes permitting such termination are
to be construed in light favoring continuation of rights of natural
parents.  Id.  The proof falls short of the statutory and
constitutional requirements articulated above.  I cannot concur
with the decision to uphold the trial court's order of termination
under the facts of this case.
     Here, the court found that appellant's mental illness was a
factor that caused her daughter to enter foster care.  The court
found that appellant would need continued treatment for the rest of
her life, and concluded that, though she had improved, she had not
yet become the type of parent her daughter needed, and that she was
unable to become that type of parent.  It is generally recognized
that termination for mental illness requires that the mentally ill
parent is unable to provide proper care for the child and that the
inability is likely to continue for the foreseeable future.  Ann M.
Haralambie, Handling Child Custody, Abuse, and Adoption Cases, 
13.13 26 (2d ed. 1993); State v. Habas, 299 Or. 177, 700 P.2d 225
(1993); In re J.N.M, 655 P.2d 1032 (Okla. 1982); In re Hime Y., 52 N.Y.S.2d 241, 418 N.E.2d 1305 (1981).
     As the majority notes, testimony indicated that, even though
appellant had done everything required of her, she was not
presently able to be the type of mother her daughter needs. 
However, no specific findings were made that appellant's particular
problems could not be cured or improved; there was only the bare
statement of testimony that "no amount of training or classes would
enable J.T. to meet the needs of T.T."   As the Oklahoma Supreme
Court held in In re J.N.M., "the mere label of mental illness
[should not be] allowed to replace an adequate investigation into
the effect of the behavior . . . and the length of time the parents
would probably be incapacitated."  Id. at 1036 (emphasis added). 
     The standard of clear and convincing evidence requires that
there be specific proof of "the likelihood of correction or control
of the condition" or that "the illness of [the parent] is of such
a long term nature and has such a pathological effect on the
children that termination is justified under constitutional
standards."  Id.; see also In re Hime Y., supra.  I do not believe
the evidence supports such a finding in this case, and in my view,
that lack of evidence is reflected in the conclusion that "J.T. is
unable to learn how to be the kind of parent her daughter needs." 
Here, parental counseling did not begin until after nineteen months
of foster care, and the trial court reflected favorably on the
improvements made in appellant's parenting skills.  The
countervailing evidence simply falls far short of the "clear and
convincing" standard required by the constitution.   Santosky v.
Kramer, supra.  I would reverse and remand.