SEP 16 1993

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RE: Complaint Number XXX [Please note new complaint number.]

Dear Ms. XXXX :

This letter constitutes our Letter of Findings in response

to your complaint filed with our office against the Alleghany
County Department of Social Services (Department) under title II
of the Americans with Disabilities Act of 1990 (ADA). Title II
of the ADA protects qualified individuals with disabilities from
discrimination on the basis of disability in the services,
programs, and activities of a State or local government. Your
complaint alleges that the Department made recommendations to the
District Court for Alleghany County, North Carolina (Court), that
were based on eligibility criteria that were in violation of the
ADA.

You have stated that you petitioned the Court for custody of
your two minor grandchildren and that, in proceedings before the
Court, the Department introduced evidence of your prior
hospitalization in a psychiatric hospital as the basis for its
recommendation that custody be denied to you. You further stated
that this hospitalization occurred in 1984 and 1986 and has no
bearing on your current ability to parent your grandchildren.

Section 35.130 (b) (8) of the Department of Justice's title II

regulation prohibits the use by a public entity of any
eligibility criteria that would screen out or tend to screen out
persons with disabilities from the full enjoyment of the benefits
of any program, service, or activity of the entity, unless the
criteria can be shown to be necessary for the provision of the
service, program, or activity. The program operated by the
Department for the placement of children after a court ordered
termination of parental rights falls within this prohibition.

Prior to the custody hearing, this office contacted the

Department. The Department agreed verbally that it would take
steps to protect your rights under the ADA. Specifically, the
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Department agreed that, with respect to your history of mental
illness, it would agree to base any arguments against your
petition for custody entirely on evidence that was related to
your current ability to parent and care for your minor
grandchildren, and that particular care would be taken where that
evidence was more than five years old.

After reviewing the Department's written final argument to

the court and relevant portions of the trial transcript, we find
that, while the eligibility criteria that were used would tend to
screen out individuals with disabilities, they were, in this
case, necessary to the operation of the placement program of the
Alleghany County Department of Social Services. Therefore, we
have determined that no violation of title II occurred.

This letter contains our determination with respect to your

allegations of discrimination in your administrative complaint.
If you are dissatisfied with our determination, you may file a
complaint presenting your allegations of discrimination in an
appropriate United States District Court under title II of the
ADA.

Under the Freedom of Information Act, 5 U.S.C. 522, we may

be required to release this letter and other correspondence and
records related to the complaint in response to a request from a
third party. Should we receive such a request, we will
safeguard, to the extent permitted by law, release of information
that could constitute an unwarranted invasion of your or other's
privacy.
If you have any questions regarding this letter, please
contact Merle Morrow at [202] 514-3571.

Sincerely,

Stewart B. Oneglia
Chief
Coordination and Review Section
Civil Rights Division

cc: Dan R. Murray

Attorney at Law

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