¶1concurring:
¶2¶ 1 I concur in the result reached by the majority. I do not reach any conclusion about the applicability of the American with Disabilities Act (ADA). I believe a decision which subjects substantive state law to modification by federal statutes under the Supremacy Clause should not be made in a vacuum. The issues should be properly framed and adequately addressed in the case and controversy.
¶3¶ 2 In this case, Mother alleges she was denied the services of CYS in formulating a Family Service Plan (FSP) which would permit her to perform the plan due to her mental illness. I first note that CYS did take Mother’s mental illness into account when implementing the FSP. As the majority articulates, CYS provided extensive services to this family. Despite Mother’s claim to the contrary, CYS does not owe her an FSP she can complete. The best interests of the child are paramount in formulating any FSP and will not be compromised to conform to the abilities and needs of the parents.
¶4¶ 3 Further, I note that Mother made no objection to the FSP at the time it was approved by the court, nor at the time of its six-month review. Additionally, on appeal, Mother has not demonstrated a violation of the ADA, which she must do before we decide if it is applicable to this situation.
¶5¶4 Given the state of this record, it would be inappropriate to decide whether the ADA modifies the substantive state law in these circumstances. I note that other jurisdictions, when faced with similar issues, have found the ADA inapplicable to these types of proceedings. See, In the Interest of Torrance P., 187 Wis.2d 10, 522 N.W.2d 243 (Ct.App.1994); Stone v. Daviess County Div. of Children and Family Servs., 656 N.E.2d 824 (Ind.Ct.App.1995) However, I believe that question is best left to another day.