in the new scotland court of appeals 135.pdfcourt terminated appellee’s parental rights on august...
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No. 0521-14 ____________________________________________________________________________________________
IN THE
NEW SCOTLAND COURT OF APPEALS ____________________________________________________________________________________________
New Scotland County Department of Social Services
Respondent – Appellant,
v.
Jennifer L., Petitioner- Appellee. ____________________________________________________________________________________________
On Appeal from the State of New Scotland, Third Appellate Division ____________________________________________________________________________________________
BRIEF FOR THE RESPONDENT-APPELLANT, NEW SCOTLAND COUNTY DEPARTMENT OF SOCIAL SERVICES
Team 135
Counsel for the Respondent –Appellant
New Scotland County Department of Social Services
ii
QUESTIONS PRESENTED
I. Whether the State of New Scotland, Third Appellate Division correctly determined that
there was a violation of the Americans with Disabilities Act when the New Scotland
Department of Social Services found that providing the Appellee with two additional full-
time caregivers to care solely for her child is not a reasonable accommodation.
II. Whether the State of New Scotland, Third Appellate Division, correctly determined that
living with a parent who is terminally ill and unable to provide for the child’s needs,
instead of remaining in a stable foster care home, is in the best interests of the child.
iii
TABLE OF CONTENTS QUESTIONS PRESENTED…………………………………………………………….…… ii TABLE OF CONTENTS……………………………………………………………….…… iii TABLE OF AUTHORITIES…………………………………………………………….….....v STATEMENT OF THE CASE…………………………………………………………..…... 1 SUMMARY OF THE ARGUMENT………………………………………………………… 5 ARGUMENT…………………………………………………………………………......…... 8 I. THE THIRD APPELLATE DIVISION INCORRECTLY DETERMINED THAT THE
DEPARTMENT OF SOCIAL SERVICES VIOLATED APPELLEE’S RIGHTS BY FAILING TO CREATE A REUNIFICATION PLAN THAT WOULD ENABLE HER TO BE REUNITED WITH HER SON ………………………………………………8
A. Appellee Is Not A Qualified Individual Within The Meaning Of The ADA And Is
Not Entitled To Reasonable Accommodation………………………………..8
1. Appellee does not meet essential eligibility requirements of the NSSSL in order to properly establish a claim under the ADA. …………………9
2. Providing two additional caretakers for Caleb would constitute a fundamental alteration to the nature of NSSSL 384-b (3). …………13
3. Providing two additional caretakers for Caleb would constitute an undue
burden under NSSSL 384-(3). ………………………………….……15
B. Providing Additional Services Would Not Cure The Plaintiff’s Parental Deficiencies. …………………………………………………………………18
C. Allowing DSS To Provide Full Time Caregivers As A Part Of Reasonable
Accommodation Will Have Deleterious Effects On Public Policy And Such Accommodation Would Override The Child’s Best Interest. …………………20
II. THE THIRD APPELLATE DIVISION INCORRECTLY DETERMINED THAT IT IS IN THE CHILD’S BEST INTERESTS TO BE REUNITED WITH HIS TERMINALLY ILL MOTHER INSTEAD OF ALLOWING HIM TO REMAIN WITH HIS FOSTER CARE FAMILY………………………………..………………………………………22 A. Appellee Is Not Entitled To Further Reunification Services Because She Is
Unable--Due To Her Medical Illness--To Presently And For The Foreseeable Future Adequately Care For Her Child. ……………………………..…...……23
iv
1. Further reunification services are improper because Appellee is presently
“unfit” to parent due to her terminal illness. …………………….……24
2. Further reunification services are improper because Appellee is “unfit” to parent in the foreseeable future, due to her terminal illness.……………28
B. A Best Interests Analysis Reveals That Caleb Would Be Better Served In Foster
Care. …………………………………………………………………..…………31
CONCLUSION………………………………………………………………………..…………37
v
TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES: Blum v. Bacon, 457 U.S. 132 (1982).............................................................................................15 Cooper Indus v. Leatherman Tool Grp., 532 U.S. 424 (2001)........................................................4 First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995)......................................................4 Olmstead v. L. C. by Zimring, 527 U.S. 581 (1999)......................................................................10 PGA Tour, Inc. v Martin, 532 U.S. 661 (2001).......................................................................10, 11
Santosky v. Kramer, 455 U.S. 745 (1982)………………………………………………..….22, 23 Stanley v. Illinois, 405 U.S. 645 (1972)........................................................................................ 22 Troxel v. Granville, 530 U.S. 57 (2000)........................................................................................31 CASES: Blair v. Supreme Court of State of Wyo., 671 F.2d 389 (1982) ....................................................23 Clark v. Madden, 725 N.E.2d 100 (Ind. App. 2000).....................................................................27 Doe v. Pfrommer, 148 F3d 73 (2d Cir. 1998) ...............................................................................13
Doe v. Roe, 526 N.Y.S 2d 718 (N.Y. Sup. Ct. 1988)……………………………………………27
Eschbach v. Eschbach, 436 N.E.2d 1260 (N.Y. 1982)..................................................................32
Friederwitzer v. Friederwitzer, 432 N.E.2d 765 (N.Y. 1982) ......................................................32
Goldhaber v. Rosen, 990 N.Y.S.2d 539 (N.Y. App. Div.2d Dep’t 2014).....................................31
Guardianship of Vera T. v. Cherie T., 435 N.Y.S.2d 598 (1st Dep’t. 1981)...........................29, 30
Hatz v. Hatz, 455 N.Y.S.2d 535 (N.Y. Fam. Ct 1982) .................................................................27
Helen L. v DiDario, 46 F3d 325 (3d Cir 1995).............................................................................15
Horvatich v. Texas Dept. of Protective and Reg. Services, 78 S.W.3d 594 (Tex. App. Austin 2002)..............................................................................................................................................33 In re Interest of A.L., 2002 Iowa App. LEXIS 417 (Iowa Ct. App. Apr. 24, 2002)......................20
vi
In re Angel B., 659 A2d 277 (Me 1995)........................................................................................18
In re Anthony V., 12 Neb. App. 567 (2004)...................................................................................23
In re Ashanti A., 869 N.Y.S.2d 20 (N.Y. App. Div. 1st Dep’t. 2008)...........................................29
In Re Chance Jahmel B., 723 N.Y.S.2d 634 (N.Y. Fam. Ct. 2001)...................................13, 14,19
In re Jacobs 433 Mich. 24 (1989)..................................................................................................25
In re Jason Anthony S., 717 N.Y.S.2d 197 (N.Y. App. Div. 2d Dep’t. 2000)...............................24
In re J.L.W., 570 N.W.2d 778 (Iowa Ct. App. 1997).....................................................................20
In re M.H., 333 Mont 286 (2006)............................................................................................13, 35
In re Marriage of Carney, 598 P.2d 36 (Cal. 1979)......................................................................27
In re Marriage of Lang, 668 N.E.2d 285 (1996)...........................................................................27
In re Maryia R., 1997 Conn. Super. LEXIS 886 15 (1997)...........................................................16
In re P.M., 221 Ill App 3d 93 (1991).......................................................................................14, 17
In re W.W. Children, 736 N.Y.S.2d 567 (N.Y. Fam. Ct. 2001).....................................................24
In Interest of Micah Alyn R. 202 W.Va. 400 (1998)......................................................................33
In the Interest of C.B., 611 NW2d 489 (Iowa 2000)......................................................................20
J.L.L v. Madison County Dept. of Public Welfare 628 N.E. 2d 1223 (1994)................................26
J.T. v. Ark Dep’t of Human Services, 947 S.W.2d 761 (Ark. 1997)........................................14, 18
Lincoln v. Lincoln, 247 N.E.2d 659 (N.Y. 1969)...........................................................................32
Maczaczyj v. New York, 956 F Supp. 403 (WDNY 1997).............................................................19
Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F3d 144 (2d Cir. 2013)........................8, 9, 10, 13
Matter of Hime Y., 52 N.Y.2d 242 (1981)...............................................................................29, 30
Matter of Montgomery, 311 NC 101 (1984)..................................................................................25
Nielsen v Nielsen, 207 Neb 141 (1980)...................................................................................22, 25 People v. Hannah, 887 N.Y.S.2d 140 (N.Y. App. Div. 2d Dept. 2009)..................................22, 32
vii
Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79 (2d Cir. 2004)................................................9
S.C. Dep't of Social Services v. Mother, 375 S.C. 276 (2007)...........................................10, 13, 14
School Bd. of Nassau Cty. v. Arline, 480 U.S. 273 (1987)............................................................12
State v. Jessica M., 191 W. Va. 302, 445 S.E.2d 243 (1994)........................................................31
Weinreich v. Los Angeles Cty. Metro. Transp. Auth., 114 F.3d 976 (9th Cir. 1997)....................9
Wilkinson v. Russell, 182 F.3d 89…………………………………………………………....22, 31
Zukle v. Regents of the Univ. of Cal., 166 F3d 1041 (9th Cir. 1999)................................10, 11, 15 CONSTITUTIONAL PROVISIONS: 28 CFR 36.104…….…….…….…….………………………………………………….……….15 28 C.F.R. § 35.130…………….…….…….…….…….…….…….……….…….…….…….13, 17 42 U.S.C.A §12101….………….…….……………….…….……………..…………………….9 42 U.S.C.A § 12102……………………………………………………………………..….……9 42 U.S.C.A §12131…….…….……………….…….……………….…….……………….…9, 10 42 U.S.C.A §12132….……………….…….……………….…….………………………...…5, 9 ADOPTION OF CHILDREN- FOSTER CARE, PL 105-89, November 19, 1997 111 Stat 2115…………….…….………….…….………….…….………….…….………….……..……24 STATUTES:
NS Social Services Law 384-b………………………………...…….…5, 9, 11, 14, 16, 19, 25, 26
NY Social Services Law 384-b………………………………………………………………24, 26
SECONDARY SOURCES: 3 Leg. Rts. Child Rev. 2D § 28:2 (2d ed.)………………………...……………………..23, 26, 31 David Shade, Empowerment for the Pursuit of Happiness: Parents with Disabilities and the Americans with Disabilities Act, 16 Law & Ineq. 153 (1998)……..…….…….……….…..14, 15
1
STATEMENT OF THE CASE
This case arises from the termination of Petitioner-Appellee’s parental rights. Record
(“R”) at 6. Pursuant to New Scotland Social Services Law § 384-b the New Scotland Family
Court terminated Appellee’s parental rights on August 4, 2014. Appellee brought forth a claim in
the State of New Scotland Family Court asserting (1) that the New Scotland County Department
of Social Services (“DSS”) violated her rights under the American with Disabilities Act
(“ADA”) when DSS denied her rehabilitative services tailored to her individualized needs, thus
failing to allow her to reunite with her son, Caleb; and (2) that reuniting with Caleb is in the
child’s best interests. R. at 6. On January 30th, 2015 the State of New Scotland Family Court
found that the ADA was not violated and that it is in Caleb’s best interest to remain in foster
care.
On February 13, 2015, the Third Appellate Division reversed the decision of the New
Scotland Family Court, finding that (1) Jennifer’s rights under the ADA were violated when DSS
failed to provide reasonable accommodations that would allow her to be reunited with Caleb; and
(2) Caleb’s best interests are not served by remaining in foster care. Id. at 18. On February 13,
2015, DSS appealed to this Court on the following certified questions: (1) “Whether the State of
New Scotland, Third Appellate Division correctly determined that there was a violation of the
Americans with Disabilities Act when the New Scotland Department of Social Services failed to
provide the Appellee with rehabilitative services specifically tailored to her individualized needs
in order to reunite the Appellee with her child;” and (2) “Whether the State of New Scotland,
Third Appellate Division, correctly determined that living with a parent who is terminally ill
instead of remaining in foster case, is in the best interests of the child.” See Notice of Appeal.
2
DSS respectfully requests that this Court reverse the decision of the Third Appellate
Division and find that Appellee’s rights were not violated within the meaning of the New
Scotland Social Services Law § 384-b and the ADA. DSS also requests that this Court reverse
the decision of the Third Appellate Division and find that Caleb’s best interests are served by
remaining with his foster care family and continuing to have visitations with Appellee.
Appellee, Jennifer L., is a thirty-five year old single mother who was diagnosed with
amyotrophic lateral sclerosis (“ALS”), a terminal illness. Her condition has rapidly worsened and
at present she cannot perform everyday functions. R. at 7. Prior to her hospitalization with ALS,
Appellee was employed and resided with her son in an area with a good school district, where
she was able to earn enough money to support her and her son Caleb. Id. Due to the rapid
progression of ALS Appellee became unable to maintain her employment and subsequently lost
her home.
Appellee sought help from the New Scotland Department of Social Services (DSS) who
provided Appellee and Caleb with an apartment, in a different school district, enrolled Appellee
in the Supplemental Nutrition Assistance Program (SNAP), and provided her with Medicaid as
well as Home Energy Assistance Program (HEAP). Id at 9. Moreover, given Appellee’s rapid
loss of motor skills, DSS additionally provided her with full-time nurses to provide in home care
twelve hours a day.
As time progressed, DSS’s range of services increased and diversified. DSS paid for
Caleb to attend a full-time daycare program, including transportation to and from school. The
daycare facility additionally provided Caleb with breakfast and lunch, while a nurse prepared
dinner at home. Id. Appellee’s loss of motor skills disabled her from preparing any meals for
Caleb, making further accommodations necessary. Appellee had her nurses purchase juice boxes,
3
bottles of water, and snacks that were easy for Caleb to open himself. Id. Appellee’s motor skills
including the ability to walk, use her fingers and arms, and form coherent sentences became
severely impaired. Id. at 10. Ultimately, due to the rapid succession of ALS, Appellee fell and
broke her hip requiring hospitalization. She was then placed in a nursing home where all parties
believed she would remain indefinitely. It was at this time that Caleb was placed in foster care.
Id. at 10.
Caleb moved in with the Smiths, a licensed foster care family with a 7-year-old son,
named Riley. Caleb visited Appellee multiple times a week at the nursing home. Caleb and
Riley quickly developed a brotherly relationship and are currently inseparable. Id. at 10. Since
the Smiths live in the same area where Caleb previously lived, Caleb was able to return to his
original school, allowing him to reunite with old friends. Id. The Smiths are Caleb’s primary
caregivers, Mrs. Smith prepares Caleb’s meals, bathes him, provides him with clean clothes, and
cares for him when he is unwell. Id. Caleb has also joined Riley’s soccer league where the two
play together on a regular basis. Mr. Smith assists Caleb with his homework. Ultimately, both
Mr. and Ms. Smith provide a loving household for Caleb, creating much needed stability through
this period of inevitable transition. Additionally, the Smiths are supportive of Caleb’s
relationship with his mother and have been very accommodating. Caleb is able to visit her as
much as possible.
After a significant passage of time, DSS moved to terminate Appellee’s parental rights.
Appellee did not contest the termination because she was unsure whether she would ever leave
the nursing home. Id. at 11. However, after eight months of intensive services, Petitioner was
released from the nursing home and moved back into her apartment where she remains fully
dependent on comprehensive in-home care. Id. Upon her release, Appellee sought reunification
4
with Caleb, and requested two additional full-time caregivers, solely to care for Caleb, in an
attempt to regain custody. Id.
In assessing whether Appellee can be reunified with Caleb, DSS performed an in-home
study and also considered Appellee’s physician reports. The in-home study found that Appellee
is currently unable to care for herself, and needs a minimum of 12 hours of in-home nursing care
a day. Id. at 12. Prior to hospitalization Appellee relied on Caleb or nursing staff to perform such
ordinary tasks as answering the door or getting a glass of water. Id. If Caleb were to return to the
home Appellee would be unable to take care of Caleb’s basic needs, such as bathing or clothing
him. The assessment found that Caleb would also be unable to leave the home as Appellee
cannot take him outside nor can she supervise him. Id.
Appellee’s physician report demonstrates that Appellee will very soon be placed on a
portable ventilator, as she will need assistance breathing and will be unable to eat or speak. Id.
The report further finds that Appellee will also experience severe atrophy throughout her body
and she will ultimately lose any control over muscular function. Id. Appellee’s prognosis states
that she has six months left to live and given the terminal nature of ALS there is no chance of
recovery. Id. at 13. After the in-home study, DSS concluded that it is in Caleb’s best interest to
stay with the Smiths. Id at 14.
Courts review questions of law, including questions of statutory interpretation, de novo.
See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 939 (1995). De novo review will
allow this Court to make an independent evaluation in order to clarify the meaning of
“reasonable accommodations” and parental “unfitness” under the New Scotland Social Services
Law §384-b. See Cooper Indus v. Leatherman Tool Grp., 532 U.S. 424, 425 (2001).
5
SUMMARY OF THE ARGUMENT The State of New Scotland, Third Appellate Division, incorrectly determined that
Appellee’s, rights were violated under the ADA. Appellee’s request for two additional full-time
caregivers to enable reunification with Caleb is not an accommodation within the scope or
purpose of the ADA. The Third Appellate Division also incorrectly concluded that the child’s
best interests were served by removal from his current stable foster care family. It is in Caleb’s
best interests to be adopted by the Smiths and to continue visitation with Appellee.
Section §12132 provides that “no qualified individual with a disability shall, by reason of
such disability...be denied the benefits of the services, programs, or activities of a public
entity…” 42 U.S.C.A. 12132. Pursuant to this section, “[t]he ADA requires [a] public entity to
make ‘reasonable accommodations’ to allow [a] disabled person to receive services or to
participate in [its] programs.” However with respect to reunification, where additional services or
programs will not cure the parental deficiencies the ADA is not violated if accommodations are
not made. In this case, Appellee is not a qualified individual as her request for accommodations
exceed the scope of the agency’s mandate. Further, additional services will not cure her parental
deficiencies, and thus are not required. Lastly, it is not within the best interests of the child to
return to his terminally ill mother.
Appellee is not an “otherwise qualified” individual eligible to receive reasonable
accommodations. The NSSSL requires that reasonable accommodations be provided when a
positive, nurturing, parent-child relationship is possible. NSSSL 384-b (1). R. at 23. When DSS
finds that this relationship is not possible, the best interest of the child must be served. Presently,
due to her terminal illness, Appellee is unable to care for her child. Her debilitating physical
6
condition and rapid loss of speech makes her incapable of providing even minimal care for
Caleb.
Second, if Appellee is found to be an “otherwise qualified” individual, the services she
requests would create an undue burden on DSS and substantially alters NSSSL. By nature,
reasonable accommodations will not fundamentally alter or unduly burden public agencies. In
this case, adhering to Appellee’s request would not encourage a relationship with her son, but
would instead provide a substitute parent. DSS does not exist to provide substitute parents and
therefore providing Appellee with two full-time caregivers would fundamentally alter DSS’s
program and unduly burden the agency.
Thirdly, it is in Caleb’s best interest to remain with his foster family, rather than being
returned to his terminally ill mother. Appellee is unable to adequately care for Caleb due to her
medical illness presently and in the foreseeable future, therefore further reunification services are
not warranted. It is in his best interest to remain with his foster family while continuing visitation
with his mother. Displacing Caleb again will result in a major disruption to the life that he has
now adjusted to. The child is best served by remaining in a stable home where his basic needs
are being provided for and he will still have the ability to spend a large amount of time with his
mother.
Lastly, judicially expanding the definition of reasonable accommodations would
undermine public policy objectives. This expansion would require agencies to undergo major
transformation and reallocation of funds. It would also open the door to numerous claims within
the court where parents in same or similar situations would be entitled to receive substitute
parents. Moreover, the best interests of the child are of utmost priority and importance.
7
If the this court found that providing accommodations that essentially replaced a parent
with a caregiver were reasonable, then this court would be placing parental rights before the best
interests of the child. Denying Appellee the accommodations she requests, would also enforce
the legislative intent of NSSSL 384-b and allow discretion to remain within the legislature
regarding reasonable accommodation.
This court should therefore reverse the Third Appellate Division’s ruling allowing Caleb
to be adopted into his current foster care family and maintain visitation with his mother.
8
I. THE THIRD APPELLATE DIVISION INCORRECTLY DETERMINED THAT THE DEPARTMENT OF SOCIAL SERVICES VIOLATED APPELLEE’S RIGHTS BY FAILING TO CREATE A REUNIFICATION PLAN THAT WOULD ENABLE HER TO BE REUNITED WITH HER SON.
Petitioner-Appellee, Jennifer L.’s rights were not violated under Title II of the Americans
with Disabilities Act (hereinafter “ADA”) when the New Scotland Department of Social
Services (hereinafter “DSS”) did not provide her with two additional caretakers as a part of
reunification services. To establish a violation of Title II, a party must establish: (1) that [s]he is
a "qualified individual" with a disability; (2) that [s]he was excluded from participation in a
public entity's services; and (3) that such exclusion or discrimination was due to his [her]
disability." Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F3d 144, 153 (2d Cir. 2013). Here,
Appellee does not qualify to raise a claim under the ADA because she does not satisfy the first
element, as she is not a “qualified individual,” for three reasons: (1) Appellee does not meet the
essential eligibility requirements; (2) her request for additional services would, if granted,
“fundamentally alter” the nature of the social services program; and (3) the services requested
would create an “undue burden” for the agency. Moreover, with respect to reunification, the
ADA is not violated when accommodations are not made if additional services or programs will
not cure Appellee’s parental deficiencies.
Finally, granting Appellee’s request would have disastrous consequences for public
policy as it would override the child’s best interest, in addition to raising the level of state
involvement, costs, and responsibility beyond the intended scope of both the ADA and DSS.
This court should therefore reverse the Third Appellate Division’s finding that Appellee’s rights
were violated under the ADA when DSS did not create a reunification plan granting Appellee’s
request for two full-time caregivers.
A. Appellee Is Not A Qualified Individual Within The Meaning Of The ADA And Is Not Entitled To Reasonable Accommodation.
9
Appellee fails to establish she is a “qualified individual” within the meaning of the ADA
statute. Appellee does not meet the essential eligibility requirements of NSSSL §384-b as she
is unable to contribute to a positive, nurturing parent-child relationship. Even if the court found
that Appellee was capable of contributing to a positive parent-child relationship, granting
Appellee’s request would constitute a fundamental alteration of NSSSL §384-b and create an
undue burden on the New Scotland Department of Social Services.
With regard to establishing elements, neither party disputes that Appellee suffers from a
severe disability, as Appellee has been diagnosed with Amyotrophic Lateral Sclerosis
(hereinafter “ALS”), a degenerative nerve disorder that significantly inhibits muscle movement,
leaving no question to the legitimacy of her disability.1 Further, it is undisputed that Appellant is
a public entity within the scope of the ADA.2
To properly establish a claim of discrimination under the ADA, first, Appellee must
prove that [s]he is a "qualified individual" with a disability. Mary Jo C., 707 F3d at 153; Powell
v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 89 (2d Cir. 2004); Weinreich v. Los Angeles Cty.
Metro. Transp. Auth., 114 F.3d 976 978 (9th Cir. 1997).
1. Appellee does not meet essential eligibility requirements of the NSSSL in order to properly establish a claim under the ADA.
The ADA was enacted to give disabled individuals an equal opportunity to enjoy
independent living and economic self-sufficiency. 42 U.S.C.A §§ 12101 et. seq. R. at 14. Under
42 U.S.C.A. §12132, “no qualified individual with a disability shall by reason of such disability
be denied the benefits of the services, programs or activities of a public entity .” 42 U.S.C.A. 1 To meet the definition of a disabled person Appellee must make a threshold showing that she suffered a “physical or mental impairment that substantially limits one or more major life activities, including but not limited to caring for oneself, eating, walking, standing, speaking, communicating, and working.” 42 U.S.C.A. §§ 12102(1)(A), (2)(A). R. at 14. 2 Title II's definition section states that "public entity" includes "any State or local government," and "any department, agency, [or) special purpose district." 42 U.S.C.A §§ 12131(1)(A), (B).
10
§12132, Olmstead v. L. C. by Zimring, 527 U.S. 581, 590 (1999)[emphasis added]. A qualified
individual is "an individual with a disability who, with or without reasonable modifications to
rules, policies, or practices, the removal of architectural, communication, or transportation
barriers, or the provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs or activities provided by
a public entity." § 12131(2). S.C. Dep't of Soc. Servs. v. Mother, 375 SC 276, 286 (Ct App 2007)
[emphasis added]. A "qualified individual" is someone who meets the essential eligibility
requirements of the statute with or without reasonable accommodation. 42 U.S.C.A §12131(2).
The ADA regulations indicate that "essential eligibility requirements" are those
requirements without which the "nature" of the program would be "fundamentally alter[ed]."
Mary Jo C., 707 F3d at 158; Zukle v. Regents of the Univ. of Cal., 166 F3d 1041, 1051 (9th Cir.
1999) (The Ninth Circuit found that making further accommodations to a school program would
lower the standard and thereby fundamentally alter it.) The Second Circuit has reasoned that
essential eligibility requirements, unlike "rules, policies, [and] practices," 42 U.S.C. § 12131(2),
are not subject to reasonable modification or waiver, although the statute may indicate otherwise.
Mary Jo C. 707 F3d at 160. (The fact that the State itself waives the deadline in the enumerated
circumstances strongly suggests that the filing deadline is not "essential.")
In PGA Tour, Inc. v. Martin, the court found the accommodation requested was
reasonable and would not cause a fundamental alteration to the program. The plaintiff, a
professional golfer suffering from a circulatory disorder, asserted a violation of the ADA when
the association disallowed him from using a golf cart while competing. His request would alter
the ‘walking rule’ in which competitors must walk from hole to hole. There, under Title III of the
ADA, the Supreme Court held that the walking rule, was not an essential eligibility requirement
11
of the game of golf, and that making reasonable accommodation to it did not cause a
fundamental alteration to the game. The court further reasoned that the walking rule was not an
“indispensable” feature nor was it an “essential attribute” to the actual game of “shot-making.”
PGA Tour, Inc. v Martin, 532 US 661, 664 (2001).
In Zukle, a student did not meet the essential eligibility requirements of an academic
program after many reasonable accommodations were made to enable her success. The plaintiff
had a learning disability that no amount of accommodation could assist, without lowering the
standards of the program and fundamentally altering it. Therefore, she did not meet the essential
eligibility requirements necessary to participate with or without reasonable accommodation.
Zukle, 166 F3d at 1051.
Here, Appellee is not a “qualified individual” under the meaning of the ADA statute
because she cannot satisfy the essential eligibility requirements with or without reasonable
accommodations. NSSSL 384-b states that where a “positive, nurturing parent-child relationship
no longer exists, a permanent alternative should be sought for the child.” NSSSL 384-b (1). R. at
23. Further, with regard to reunification, the agency shall make “every reasonable effort to assist,
develop and encourage a meaningful relationship between the parent and child, including a
rehabilitative services plan to enable the parent and child to successfully reunite.” R. at 23-24.
The statute presents a threshold issue, which needs to be addressed prior to the court
considering whether Appellee's requests are reasonable accommodations. According to NSSSL
384-b, a parent must at least be able to contribute to a positive, nurturing parent-child
relationship or with regard to reunification, be able to contribute to a meaningful relationship
with appropriate services. Appellee does not satisfy or establish either of these requirements.
NSSSL 384-b (1). R. at 23-24
12
Appellee has been given a prognosis of approximately six months to live, and within
three months is expected to lose her ability to breathe on her own, eliminating her ability to
speak. The Supreme Court has held that medical testimony should be given great weight. School
Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 283 (1987) (Courts normally should defer to the
reasonable medical judgments of public health officials.) Like PGA, it can argued that the ability
to walk is not an essential attribute of parenting, however the ability to supervise, bathe, feed and
clothe a child are all essential attributes of parenting. When the physical aspects of parenting
cannot be met a parent must at least be able to provide direction or guidance vocally. Thus,
Appellee’s lack of ability to care for her child is an indispensable feature. The most basic needs
of the child render her incapable of satisfying the basic eligibility requirements.
Unfortunately, since Appellee is incapable of meeting any of the physical requirements of
parenting, her contribution to a positive, nurturing, or meaningful relationship with her child
would be vocal at best. Although Appellee has not yet lost this ability to speak, Appellee does
not meet the essential eligibility requirements of the NSSSL with or without reasonable
accommodation. DSS cannot create a rehabilitative services plan for her and Caleb to
successfully reunite because Appellee’s terminal illness prevents rehabilitation. If Appellee
cannot parent, she cannot be provided with reasonable accommodations to remedy that
inadequacy. NSSSL is clear that when a positive, nurturing relationship no longer exists, the
state must invest in the child’s best interest, and here, even with full time caregivers Appellee is
unable to contribute to a positive, nurturing, or meaningful parent-child relationship because of
her rapidly failing health. NSSSL 384-b. R. at 23 Like Zukle, Appellee cannot care for her child
with or without services.
2. Providing two additional caretakers for Caleb would constitute a fundamental alteration to the nature of NSSSL 384-b (3).
13
Appellee’s request for services, if granted, would cause a fundamental alteration to
NSSSL, and therefore is not a reasonable accommodation under the ADA.
The ADA does not require public entities to make fundamental alterations to their
programs. A public entity shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination on the basis of
disability, unless the public entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or activity. 28 C.F.R. §
35.130(b)(7)(1998); Mary Jo C., 707 F3d at 153; In re M.H., 333 Mont 286, 293, (2006) (The
District Court stated "[s]ervices were provided to these parents, but the accommodations that
would be necessary to keep these children safe would represent a fundamental alteration in
services [DPHHS] provides and, therefore, is beyond the scope of the ADA even if the Act
applied in this case). The Second Circuit has posited that the ultimate inquiry in a fundamental
alteration analysis is to determine the extent to which defendants are required by anti-
discrimination statutes to modify their programs to meet the needs of the disabled person. Doe v.
Pfrommer, 148 F3d 73, 83 (2d Cir. 1998). The court in Doe further states that the central purpose
of the ADA is to assure that disabled individuals receive “even-handed” treatment in relation to
the able-bodied. Id.
Courts can require that reasonable accommodations be provided to the parent for the
purposes of facilitating a parent-child relationship, but not to replace the parental figure with a
caretaker. In Re Chance Jahmel B., 723 N.Y.S.2d at 640. (Holding that a full-time caregiver for
developmentally disabled parents was not in the son’s best interest nor could it be reasonably
provided.); S.C. Dep’t of Social Services, 375 S.C. at 286 (Finding that the purpose of the [ADA]
was "to insure that benefits are not denied based upon a handicap," rather than "[to] provide
14
parental training for mentally deficient parents.) Courts need to consider whether providing
home attendants would assist in parenting the child, or whether the attendant would become a
substitute parent. Mandating attendant care for a parent who will never be able to raise his or her
child in any meaningful way is not a "reasonable modification" under the ADA, and should not
be required of a state. See David Shade, Empowerment for the Pursuit of Happiness: Parents
with Disabilities and the Americans with Disabilities Act, 16 Law & Ineq. 153, 211 (1998). In re
P.M., 221 Ill App 3d 93, 96 (1991) (Where the court held that although there were services that
might help a mother keep her baby, such as a live-in, surrogate mother, these services do not
exist and the State has no duty to create them for respondent's sole benefit.)
In In re Chance Jahmel B. the court found that extensive services were already being
provided to a father for his mental disability, and an additional full time caregiver to care for his
child could not be reasonably provided. In Re Chance Jahmel B., 723 N.Y.S.2d at 640. Courts
have found reasonable accommodation to include psychological evaluations, therapists,
prescribed medications for mental illnesses, parenting classes, and access to family therapy. J.T.
v. Ark Dep’t of Human Services, 947 S.W.2d 761, 768 (Ark. 1997), S.C. Dep’t of Social Services,
375 at 288. (Finding services such as counseling and therapy for the disabled parent to be
reasonable accommodations) Social services supplied by the state are not intended to provide
substitute parents within the home.
NSSSL 384-b (3) states that DSS must make every reasonable effort to “assist, develop
and encourage a meaningful relationship between the parent and the child even after
termination...using appropriate services to enable the child and mother to successfully reunite.”
[emphasis added] R. at 24. A plain reading of the statute allows DSS to aid in a parent and
child’s reunion, not replace parents in the event they are unable to fulfill what is required of
15
them. Appellee’s requested accommodations are beyond the scope of what courts have
recognized as “reasonable accommodations” under the pertinent statute and would result in a
fundamental alteration of the services provided by DSS. Although the ADA allows for
reasonable accommodation to be made to NSSSL, the ADA does not expressly grant permissive
use of full time caretakers who would essentially act as substitute parents. Therefore, Appellee’s
request for additional attendants constitutes a fundamental alteration of the Department of Social
Services statute.
3. Providing two additional caretakers for Caleb would constitute an undue burden under NSSSL 384-(3).
Appellee’s request for two additional caregivers would unduly burden New Scotland
DSS. An agency is unduly burdened when the cost of requested accommodations outweigh the
significance of the deprivation to the individual. 28 CFR 36.104; David Shade, Empowerment for
the Pursuit of Happiness: Parents with Disabilities and the Americans with Disabilities Act, 16
Law & Ineq. 153, 167.
ADA regulations identify several factors to be considered when there is an “undue
burden” defense, such as: the nature and cost of the proposed alteration, the type of work the
agency performs, effect on expenses and resources, and the overall financial resources of the
agency. 28 CFR 36.104. The Supreme Court has shown deference to state legislative statutes in
determining the scope of accommodation required for those who qualify under the ADA. Blum v.
Bacon, 457 U.S. 132, 141 (1982). ("The interpretation of [the] agency charged with the
administration of [this] statute is entitled to substantial deference.") (cited by Helen L. v.
DiDario, 46 F3d 325, 331-332 (3d Cir. 1995)). Therefore, when analyzing an undue burden
claim, the court has held that determining whether to impose court-ordered services is a fact-
sensitive inquiry, which must consider the totality of the circumstances. Zukle, 166 F.3d at 1048.
16
Analyzing the totality of circumstances in this case demonstrates that even after costly
accommodations, Appellee is unable to provide minimally acceptable care for Caleb. Similar to
In re Maryia, where Social Services made many attempts to engage and rehabilitate the parent,
DSS in this case has already made many efforts to accommodate Appellee in order to keep Caleb
in the home with her. See In re Maryia R., 1997 Conn. Super. LEXIS 886 (Conn. Super. Ct. Apr.
1, 1997). Prior to termination DSS provided Appellee with daycare services including
transportation and meals, in addition to dinner prepared by Appellee’s in home nurses. Even
further adaptations were made when Appellee lost more of her mobility. Appellee’s nurses
purchased bottles of water, single serve containers of orange juice, apple juice, and milk, all of
which made it possible for Caleb to serve himself without his mother, thus prolonging his stay
with her. R. at 9. The new services Appellee is requesting exceed all the prior accommodations
previously provided.
Although Appellee’s deprivation is substantial as it results in a separation from Caleb, the
cost of reunification outweighs this deprivation. In order to reunify this one family DSS would
be required to offer burdensome resources including two extra full time nurses to care for the
child, in addition to the in-home care Appellee already receives. These services are also
unsustainable for the agency, as the state would be unable to assign multiple nurses and full time
caregivers to all similar cases. Further, according to NSSSL §384-b(1)(a), the state’s first
obligation is to prevent family break-up and encourage reunification. The rest of the statute
indicates that this obligation can be outweighed by the child’s best interests when necessary, to
ensure that the child has a “normal family life” and “permanent home.” Here, granting two full
time caregivers would achieve neither goal. NSSSL §384-b(1)(a). R. at 23.
17
As a state funded agency, DSS does not have unlimited resources or the financial breadth
to grant parents every service requested to ensure family reunification. Due to funding
limitations, the unfortunate reality is that there will be numerous situations in which DSS will be
unable to assist parents in reuniting with their children. For example, Illinois Appellate Court
recognizes, “The sad reality is that some are less fortunate than others, so less fortunate that they,
through no fault of their own, cannot care for a child.” In re P.M., 221 Ill App 3d at 95 (1991).
The undue burdening of public agencies also takes shape in the misallocation of physical
resources. Assigning two full time caregivers to one family necessarily takes away from
resources that would otherwise be split more evenly amongst equally deserving families in need
of part time assistance. Here, this uneven allocation of resources would be used to support a
parent with a terminal illness, a parent who has no intent or ability to regain permanent custody
over her child. Providing the full-time services that Appellee requests would constitute an undue
burden on the New Scotland Department of Social Services. Therefore, Appellee does not meet
the burden of proving that she is an “otherwise qualified” individual because she does not meet
the essential eligibility requirements, her request fundamentally alters the statute, and unduly
burdens the agency.
However, even if this court found she was an “otherwise qualified” individual, Appellee
has the burden of proving the other two elements. In order to establish a valid ADA claim
Appellee must also demonstrate that she was either, excluded from participation in or denied
benefits of, some public entity’s services, programs, or activities, or was otherwise discriminated
against by the public entity by reason of her disability. 28 C.F.R. § 35.130(b)(7). Here, there is
no question that Appellee was denied benefits. However, the court requires the plaintiff to make
a showing that DSS failed to offer certain services or that it offered services that were not as
18
effective in affording the plaintiff equal opportunity to rehabilitate and reunify with the
plaintiff’s children on the basis of the plaintiff’s disability. In re Angel B., 659 A2d 277, 279
(Me. 1995) [emphasis added]. (The court held the parent failed to demonstrate her disability was
the reason that the Department of Human Services failed to offer her certain services, or offered
her services that were not as effective in affording her equal opportunity to rehabilitate and
reunify with her children.)
New Scotland DSS’s decision not to grant the use of two in-home caretakers in addition
to Appellee’s two nurses was clearly not a result of discrimination based on her disability. DSS
has provided Appellee with extensive accommodations in order to keep her and her son together
for as long as possible. Her disability was a factor in determining that services would not be
provided, but when a positive, nurturing parent-child relationship is no longer possible even with
accommodation from the ADA, the child’s best interests outweigh the parent’s interest.
Appellee was denied accommodation not because of her disability, but because even with the
accommodations Caleb’s best interests will not served. Therefore, Appellee has not made a
showing that the denial of full-time caregivers was as a result of discrimination based on her
disability.
B. Providing Additional Services Would Not Cure The Plaintiff’s Parental Deficiencies.
Providing two additional caretakers would not cure Appellee’s inability to engage in a
meaningful relationship, therefore even if this court found the accommodation to be reasonable,
the ADA is not violated. The court has found that where additional services or programs will not
cure the parental deficiencies, the ADA is not violated if accommodations are not made. JT v.
Ark, 947 S.W. 2d at 768. Additionally, the services that DSS is required to provide have to
address the deficiencies or inadequacies of the disabled individuals, rather than provide parenting
19
services. In Re Chance Jahmel B., 723 N.Y.S.2d at 640. Maczaczyj v New York, 956 F Supp.
403, 409 (WDNY 1997) (The court held that the severe nature of the plaintiff’s handicap, rather
than the defendant’s failure to offer reasonable accommodations, was limiting the plaintiff’s
ability to achieve his educational objectives).
In the present case, the record reflects that DSS has provided a breadth of services in an
attempt to meet Appellee’s disability needs. Prior to Appellee’s parental rights being terminated,
and after her diagnosis with ALS, DSS provided Caleb and Appellee with housing. R. at 9. DSS
also provided Appellee with the Supplemental Nutrition Assistance Program (SNAP), Medicaid,
and with the Home Energy Assistance Program (HEAP). Id. Appellee was provided nurses to
assist her in her home. Id. Additionally, in order to facilitate and continue Appellee’s
relationship with Caleb, DSS paid for Caleb to attend a full-time daycare program that included
transportation to and from the facility. Id. All of these services supplemented Appellee’s actual
ability to function, and is evidence of DSS’s attempts to make every reasonable effort to assist,
develop, and encourage a meaningful relationship between Appellee and her child in accordance
with NSSSL §384-b (3).
Despite Appellee’s undoubted love for her son, there no longer exists a viable parent-
child relationship between her and Caleb. DSS sent a social worker to Appellee’s home in efforts
to assess and evaluate whether a reunification plan could be created. The social worker found
that Appellee is unable to care for herself, finding that she was unable to even answer the door or
push the button on the buzzer. Appellee does not have the ability to take Caleb outside to play or
monitor his actions. R. at 12, ¶¶ 1-4. Furthermore, Appellee’s doctor reports that she will
continue to get progressively worse as time goes on, soon losing the ability to speak and breathe
on her own. Her doctor has given her a prognosis of approximately six months to live. R. at 13, ¶
20
7. Appellee and her son would “reunite” under the barest definition of the term, but it would not
be successful by any means, as Appellee will be bedridden and unable to speak within three of
the six months she is estimated to live.
The reunification services being requested are not being denied because a better home
exists, as the Third Appellate Division wrongly asserts. The exhaustive reunification services are
being denied because the accommodations requested are beyond the reach of the ADA’s
reasonable accommodation and Appellee is unable to parent even with the assistance of two
additional caretakers.
C. Allowing DSS To Provide Full Time Caregivers As A Part Of Reasonable Accommodation Will Have Deleterious Effects On Public Policy And Such Accommodation Would Override The Child’s Best Interest.
The NSSSL’s express intent is to provide services, which further the best interest of the
child. Providing Appellee with two additional caregivers would be in direct violation of this
intent because Caleb’s best interests are to stay in a stable and normal home
environment. Further, granting the full time caregivers would set a precedent that increases state
involvement, exceed budgets, expands the scope of services provided by DSS, and permits a
broader reading of reasonable accommodation under the ADA.
The Adoption and Safe Families Act of 1997, shifted the focus of reunification by
placing greater emphasis on the health and safety of the child, and prioritizing finding a
permanent home for a child as early as possible. In the Interest of C.B., 611 NW2d 489, 493
(Iowa 2000). At some point, the rights and needs of the child rise above the rights and needs of
the parent. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997). (Cited by In re Interest of
A.L., 2002 Iowa App. LEXIS 417, 4 (Iowa Ct. App. Apr. 24, 2002)).
The State of New Scotland Family Court makes a compelling policy argument,
articulating that forcing DSS to either provide substitute caregivers to “unfit” parents, or risk
21
violating the ADA, would require in-home caregivers to be provided to the detriment of the best
interests of the child. This policy argument is two-fold; it addresses both the preventable undue
burden on the Department of Social Services as well as the primacy of the child’s best interest.
A state does not violate the ADA when it makes public policy decisions based on
legitimate non-discriminatory criteria. In the present case, the State of New Scotland is denying
Appellee’s request for services for legitimate non-discriminatory reasons. The use of full-time
caregivers would cause a significant strain on the agency and its resources, and would
fundamentally alter the nature of the NSSSL. The inevitable reality of providing a full-time
caregiver is that he or she will essentially function as a foster parent while in the home. The state
already has a functioning foster care system in place. Providing additional full-time at-home
attendants would constitute an undue burden on the agency forcing it to incur additional costs
and responsibilities. Therefore, though maintaining Caleb’s foster care placement deprives
Appellee of extra time with her son, the high cost of accommodations cannot be justified when
visitations provide Appellee with a less burdensome way to spend time with Caleb.
While Appellee has an emotionally compelling case, her request is not practical.
Upholding the Third Appellate Division’s decision would make courts vulnerable to a flood of
claims from parents in the same or similar circumstances demanding entitlement to substitute
parents. Upholding Appellee’s request would lead to a slippery slope, creating an astronomic
drain on agency resources. This potential decision will undoubtedly increase budgetary needs
and cause ripple effects across other state services. The court has stressed that the legislature be
given deference to determine the scope of services, and feasibility cannot be ignored in making
this determination.
22
II. THE THIRD APPELLATE DIVISION INCORRECTLY DETERMINED THAT IT IS IN THE CHILD’S BEST INTERESTS TO BE REUNITED WITH HIS TERMINALLY ILL MOTHER INSTEAD OF ALLOWING HIM TO REMAIN WITH HIS FOSTER CARE FAMILY.
The Third Appellate Division incorrectly ruled that it was in the child’s best interest to
live with a terminally ill parent instead of remaining in a stable foster care home. The Supreme
Court has held that parents have a constitutionally protected liberty interest in the care, custody,
and management of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982). However, this
interest is counterbalanced by the compelling governmental interest in the protection of minor
children, particularly in circumstances where the protection is considered necessary as against
the parents themselves.” Wilkinson v. Russell, 182 F.3d 89, 104, cert. denied 528 U.S. 1155, 120
S. Ct. 1160, 145 L.Ed.2d 1072. People v. Hannah, 887 N.Y.S.2d 140, 141 (N.Y. App. Div. 2d
Dep’t. 2009) Where there is a showing of abandonment, neglect, or unfitness the State has the
right to separate parents from their children. Stanley v. Illinois, 405 U.S. 645, 652 (1972) As a
result, when a parent is unfit or has forfeited their parental rights, a court can deprive that parent
of custody. Nielson v. Nielson, 296 N.W.2d 483, 486 (Neb. 1980)
Here, remaining with his foster family is in Caleb’s best interest because Appellee is unfit
parent due to her rapidly failing health, and she is unable to presently and for the foreseeable
future adequately care for Caleb. Additionally, Appellee has forfeited her custody rights and
reunification services are warranted only in the form of visitation with her child.
Further, a best interests analysis requiring a fact specific inquiry into a number of factors,
reveals that Caleb’s foster family best serves his needs. Therefore, we respectfully request that
this court reverse the Third Appellate Division’s finding, and instead uphold the Family Court
decision, which enables Caleb to stay in a stable home, until his adoption with the Smiths is
finalized.
23
A. Appellee Is Not Entitled To Further Reunification Services Because She Is Unable--Due To Her Medical Illness--To Presently And For The Foreseeable Future Adequately Care For Her Child.
The State has a compelling interest in the welfare of minor children and has authority to
terminate parental rights under certain limited circumstances, pending a finding that termination
is in the best interest of the child. Blair v. Supreme Court of State of Wyo., 671 F.2d 389 (1982).
In termination of parental rights proceedings, the evidence used to support a finding of unfitness,
in order to warrant a termination, must be clear and convincing. Santosky, 455 U.S. at 753. A
“clear and convincing evidence” standard, “adequately conveys to the fact-finder the level of
subjective certainty about his factual conclusions necessary to satisfy due process. “A
determination of the precise burden equal to or greater than that standard is a matter of state law
properly left to state legislatures and state courts.” Id. at 769.
Though the procedure varies state to state, most states utilize a two-step process in
terminating parental rights. First, the State must establish at least one statutory ground for
termination by clear and convincing evidence. Once the State has met its statutory burden of
proof, parental rights must be terminated only if it is found to be in the best interest of the child.
3 Leg. Rts. Child. Rev. 2D § 28:2 (2d ed.). The statutory ground focuses on the state of the
parent in analyzing whether the parent is able to provide for the child in terms of food, care,
shelter, and availability of future provisions. In finding what is in the child’s best interests, the
state fulfills their obligation in protecting the child with respect to parental rights. 3 Leg. Rts.
Child. Rev. 2D § 28:2 (2d ed.). See In re Anthony V., 12 Neb. App. 567, 680 N.W.2d 221 (2004).
(Before parental rights may be terminated, evidence must clearly and convincingly establish the
existence of one or more statutory grounds permitting termination, in addition to a finding that
the termination is in juvenile's best interests.)
24
According to the Adoption and Safe Families Act of 1997, federal legislation regulating
many aspects of adoption, foster care, and parental reunification, “the child’s health and safety
shall be the paramount concern” when determining reasonable efforts to be made towards
reunifying a child with his or her parent. ADOPTION OF CHILDREN—FOSTER CARE, PL
105–89, November 19, 1997, 111 Stat 2115.
New York offers case law, which is persuasive because as addressed above, §384(b) of
New York’s Social Services Law is substantially similar to that of the New Scotland Social
Services Law. N.Y. Soc. Serv. Law §384-b (McKinney). One key difference is the addition of
“medical illness” as a statutory ground to find “unfitness” resulting in termination of parental
rights. Under New York law once a finding of unfitness based on mental illness or
developmental disability is established by clear and convincing evidence, the social services
agency is no longer required to provide reunification services. See In re Jason Anthony S., 717
N.Y.S.2d 197, 198 (N.Y. App. Div. 2d Dep’t. 2000). (Holding that reasonable efforts to reunite
family were unnecessary where mental illness was found as grounds to terminate parental rights).
In re W.W. Children holds that the respondent must prove unfitness warranting termination of
parental rights and an end to reunification services due to mental retardation (here medical
illness) by clear and convincing evidence. Additionally respondent must demonstrate that the
child would risk neglect if returned to Appellee. In re W.W. Children, 736 N.Y.S.2d 567, 578-79
(N.Y. Fam. Ct. 2001). Here that burden is easily satisfied.
1. Further reunification services are improper because Appellee is presently “unfit” to parent due to her terminal illness.
Prior to Appellee’s long term hospitalization due to her terminal illness the Department
of Social Services made comprehensive efforts to accommodate her and assist her in being able
to parent her child. DSS provided her with a plethora of benefits, full time daycare for Caleb, and
25
in home assistance. R. at 9. Further reasonable efforts to reunify are not required because
Appellee is unfit to parent her child now and in the foreseeable future due to her terminal illness.
As cited in the Third Appellate Division decision, a court should not deprive a parent of custody
unless it is shown that the parent is, “unfit to perform the custody duties imposed by the
relationship, or has forfeited that right.” Nielson v. Nielson, 296 N.W.2d 483, 486 (Neb. 1980).
R. at 21. Pursuant to New Scotland Social Services Law § 384-b(2)(b), terminating parental
rights can be properly granted upon a finding that a parent is “unable—due to mental or medical
illness—to presently and for the foreseeable future adequately care for the child.” New Scotland
Social Services Law §384-b(2)(b), R. at 23.
Here, Appellee was unfit at the time DSS moved to terminate rights and at present
continues to be unfit to raise her child. Appellee not only satisfies the Nielson standard,
establishing a proper finding of parental unfitness, but she voluntarily forfeited her parental
rights as well. Appellee’s voluntary forfeit of her parental rights is alone, enough to constitute a
proper termination of rights. The termination was also valid because Appellee was in the hospital
for an indefinite period of time, establishing unfitness in the present and foreseeable future, to
perform the necessary parental duties.
Although by no fault of her own, Appellee is unable to care for Caleb due to the nature of
her disability. The Third Appellate Division improperly asserted that in order to find “unfitness”
a parent must abandon her child or manifest some form of culpable behavior. On the contrary, a
parent need only be incapable of performing the basic duties necessary to adequately care for a
child. See In re Jacobs 433 Mich. 24 (1989). (Holding that it is unnecessary to show culpable
neglect in order for a court to validly exercise jurisdiction over a child under a neglect statute);
See also Matter of Montgomery, 311 NC 101 (1984). (Holding that the purpose of terminating
26
parental rights is not to punish parents but instead to protect the children involved); See also
J.L.L v. Madison County Dept. of Public Welfare 628 N.E. 2d 1223 (1994); (Holding that it is
not necessary to show parental fault in order to terminate rights because determining factors are
about what is in the best interest of the child).
Though it varies state to state, there are several grounds under which termination of
parental rights is widely held as warranted, including extreme parental disinterest, failure of
parent to remedy the conditions which caused the separation, extreme or repeated neglect or
abuse, parental incapacity, and extreme deterioration of the parent-child relationship. 3 Leg. Rts.
Child. Rev. 2D § 28:2 (2d ed.). In the present case Appellee is unfit to parent by reason of
incapacity. Here, by clear and convincing evidence, Appellee cannot now or in the foreseeable
future, provide adequate care for her son and therefore it is in the best interests of the child to
continue in foster care placement, where he is said to be thriving. R. at 10.
Addressing the best interests of the child with a terminally ill parent is a matter of first
impression before this court. New York Social Services Law §384 (b) provides a ground for
termination which is substantially similar to the NSSSL §384(b) stating that when, “the parent or
parents...are presently and for the foreseeable future unable, by reason of mental illness or mental
retardation, to provide proper and adequate care for a child…” N.Y. Soc. Serv. Law § 384-b
(McKinney). NSSSL §384(b) differs in that it also includes medical illness. New York cases
interpreting “unfitness” by reason of mental illness and developmental disability are instructive
because terminal illness, like developmental disability and mental illness, often times render a
parent incapable of meeting the basic requirements of parenting as a result of his or her
condition.
27
Additionally, often cited California Supreme Court case In re Marriage of Carney,
addresses unfitness specific to the context of physical disability. See Carney, 598 P.2d 36, See
Doe v. Roe, 526 N.Y.S. 2d 718, 726 (N.Y. Sup. Ct. 1988); Hatz v. Hatz, 455 N.Y.S.2d 535, 536
(N.Y. Fam. Ct 1982) aff’d, 468 N.Y.S.2d 943 (N.Y. App. Div. 3d Dep’t. 1983). It is
impermissible for a court to rely on a parent’s disability as prima facie evidence of parental
unfitness or as evidence of harm to the child, instead the court must view “the person with a
disability as an individual and the family as a whole.” In re Marriage of Carney, 598 P.2d 36, 42
(1979). Court must analyze the totality of the family condition to see if the parent’s disability
will have a “substantial and adverse effect on the best interest of the child.” Clark v. Madden,
725 N.E.2d 100, 105 (Ind. App. 2000). In re Marriage of Lang, 668 N.E.2d 285, 288–89 (1996).
The Carney Court used the following factors to measure substantial and adverse effects: (1)
parent’s actual and potential physical capabilities; (2) adaptability and management of disability;
(3) and other familial support. In re Marriage of Carney, 598 P.2d 36, 42. (1979).
Beginning with the first factor, Appellee’s actual and potential physical capabilities
demonstrate that she is incapable of providing for the basic needs of her son. At the time DSS
moved to terminate parental rights Appellee was in a nursing home under constant care. Prior to
hospitalization Appellee was unable to prepare meals for her son. R. at 9. Appellee was in the
process of losing motor function, use of her fingers and arms, and the ability speak. She was
unable to walk without a walker. R. at 9-10.
Currently, Appellee is out of the hospital and back at home where she is unable to care
for herself. Appellee is wheelchair bound and needs at minimum 12 hours of care per day. She
cannot answer the door, cannot bathe her son and cannot supervise him in the outdoor area where
they live, making it impossible for him to simply go outside and play. Appellee has an estimated
28
six months left to live and her condition is rapidly declining. According to her doctor, in
approximately 3 months she will be on a ventilator and will not be able to speak or swallow
food. She will continue to lose all control over muscular function. R. at 10.
The second factor, adaptation and management of disability, further supports a finding of
parental unfitness. Eight months after being hospitalized due to her fall, Appellee was able to
make enough progress to return home, but the reality of her disease remains. As provided above,
Appellee’s health is declining rapidly and no amount of rehabilitation will make her able to
provide adequate care for her child.
Lastly, Appellee has no familial support. R. at 8. Though prior to her hospitalization DSS
provided substantial assistance including an apartment, SNAP benefits, Medicaid, and HEAP
benefits. DSS also provided her with in-home nursing assistance, daycare for Caleb, and
transportation. Between daycare and in-home nurses all of Caleb’s meals were prepared and
provided for him as Appellee was unable. R. at 9.
When assessing the family condition as a whole, it is clear Appellee cannot meet the
basic needs of her son. DSS is not relying on Appellee’s disability as prima facie evidence of her
“unfitness.” Instead DSS has used the specific facts of this case to come to the well reasoned
conclusion that Appellee is “unfit” to raise her son, due to her individual condition and the
family condition as a whole. Appellee’s disability and subsequent total inability to meet the
basic needs of her child will have a substantial and adverse effect on the child if he is placed
back into her care.
2. Further reunification services are improper because Appellee is “unfit” to parent in the foreseeable future, due to her terminal illness.
In addition to being unable to care for her child in the present, clear and convincing
evidence establishes by the nature of her terminal illness and medical prognosis, Appellee is also
29
unable to care for her child in the foreseeable future. The New York Court of Appeals addressed
the issue of whether evidence was sufficient to support the finding that the mother, by reason of
mental illness, was presently and for the foreseeable future, unable to provide proper care for her
child. Matter of Hime Y., 52 N.Y.2d 242, 245 (1981). The petition in Matter of Hime Y., was also
filed under Section 384-b of the Social Services Law, and is controlling here because of its
substantial similarity to the NSSSL. Ultimately the Court in Matter of Hime Y., concluded that
though there was evidence to support present inability to parent, there was not sufficient
evidence to support the finding that the mother would not be able to parent in the foreseeable
future. There an expert testified that the parent could potentially regain the ability to parent the
child, thus remanding the case back to the lower court, indicating that professional testimony is
highly influential in assessing potential parental function. Id. at 248-249
In In Guardianship of Vera T. v. Cherie T., the New York Appellate Division sought to
define the limits of “foreseeable future.” There the court addressed the remote possibility of a
parent regaining parental fitness sometime in the future, though the mother was found to be
presently unfit by reason of repeated hospitalization and diagnosis of schizophrenia. In
Guardianship of Vera T. v. Cherie T., 435 N.Y.S.2d 598, 599 (N.Y. App. Div. 1st Dep’t. 1981)
aff'd sub nom. Vera T. Louise Wise Services v. Cherie T., 434 N.E.2d 1075 (N.Y. 1982). The
Appellate Court overruled the Family court finding that there was some remote possibility the
mother would become fit to parent again. The court further stated that a remote possibility of
recovery is, “no basis for ignoring the needs of the child.” Id. Further, even noteworthy progress
is not enough. See In re Ashanti A., 869 N.Y.S.2d 20, 21 (N.Y. App. Div. 1st Dep’t. 2008).
(Holding that while respondent had made noteworthy progress in many areas, clear and
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convincing evidence supported the finding that she was, by reason of mental illness, presently
and for the foreseeable future, unable to provide proper and adequate care for her child.)
In comparison to the circumstances in Matter of Hime Y. and In guardianship of Vera T,
the evidence before this court is clear and convincing that Appellee is not only incapable of
providing adequate care for the child in the present, but also incapable in the foreseeable future.
The present case is distinguishable from many of the cases addressing parental unfitness as a
result of mental illness, because here there is no possibility of recovery in the future. Appellee
has a terminal illness with a current prognosis stating that she has six months to live. ALS is a
condition without a cure. Appellee’s physical condition is steadily worsening, as evidenced by
the in-home study, her physician’s report, and her current physical state. As evidence of the rapid
deterioration, from the time that DSS initiated an in-home study of Appellee, to the time it was
completed, she lost the use of her right hand. R. at 12.
All parties recognize that Appellee will not recover or regain ability to adequately parent.
Instead, Appellee is asking to spend more time at home with her son. The question before this
court is whether it is in the child’s best interest to have his life once again uprooted and placed
back into the home of his terminally ill mother. This move is not only setting Caleb up for
further disruption to his normal routine, but would also add to the inevitable disruption that will
occur when Appellee succumbs to her terminal illness. It is clear that the best interests of the
child are better served by allowing him to remain in foster care and continue visitation with his
mother until his adoption. Allowing the child to remain in foster care is undoubtedly in his best
interests because it provides a stable environment for him as he transitions to a permanent home.
Therefore, due to her prognosis and current disability, Appellee is unable to care for the child
presently and in the foreseeable future.
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B. A Best Interests Analysis Establishes That Caleb Would Be Better Served In Foster Care.
It is in Caleb’s best interests to remain with the Smiths and continue visitation with his
mother. After conducting a fact specific best interests of the child analysis the potential benefits
of removing Caleb and placing him back with his terminally ill and disabled birth parent are
outweighed by the benefits of allowing the child to remain in the stable foster care home
environment where the Smiths are able to meet the emotional and physical needs of an active
five-year old boy.
Here, the record clearly establishes that Appellee is a caring parent who wants to see her
son well taken care of. Unfortunately, regardless of Appellee’s desire to parent her child, her
physical condition and future prognosis render her incapable of parenting adequately. Although
constitutionally protected, a natural parent's right to custody of his or her children is not absolute
and may be limited or terminated by the state, as parens patriae, if parent is proved unfit to be
entrusted with care of child. State v. Jessica M., 191 W. Va. 302, 445 S.E.2d 243 (1994). 3 Leg.
Rts. Child. Rev. 2D § 28:1 (2d ed.)
It is a well-established principle of law that when adjudicating custody and visitation
rights, the most important factor to be considered is the best interest of the child. Goldhaber v.
Rosen, 990 N.Y.S.2d 539, 540 (N.Y. App. Div.2d Dep’t 2014). It is also well established that
parents have a superior right to the custody of their children over non-parents. Troxel v.
Granville, 530 U.S. 57, 65-66 (2000). However, though parents enjoy a constitutionally
protected interest in their family integrity, this interest is counterbalanced by the compelling
governmental interest in the protection of minor children, particularly in circumstances where the
protection is considered necessary as against the parents themselves. Wilkinson v. Russell, 182
F.3d 89, 104 (internal citations and quotation marks omitted), cert. denied 528 U.S. 1155, 120 S.
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Ct. 1160, 145 L.Ed.2d 1072. People v. Hannah, 887 N.Y.S.2d 140, 141 (N.Y. App. Div. 2d
Dep’t. 2009. The fundamental inquiry and first concern of the court when deciding the custody
of a minor is the best interest of the child. Lincoln v. Lincoln, 247 N.E.2d 659, 660 (N.Y. 1969).
Courts are given deference when formulating the specific factors that need to be
considered when making a determination of the best interest of the child. Eschbach v. Eschbach,
436 N.E.2d 1260, 1263 (N.Y. 1982). It has been recognized that there are no absolutes in making
the best interests determination, but rather only policies designed to guide the courts in their
determinations. Friederwitzer v. Friederwitzer, 432 N.E.2d 765, 768 (N.Y. 1982) (The court held
stability in a child's life is in the child's best interests and that the prior determination reflects a
considered and experienced judgment concerning all of the factors involved.) See In Interest of
Micah Alyn R. 202 W.Va. 400 (1998) (holding that when a parent is terminally ill and unable to
care for child, such that it constitutes “abuse and neglect,” the court is warranted to look for
prospective adoptive parents as long as efforts are made to maintain a bond between the parent
and child.)
Analyzing the best interests of a child is a heavily fact specific determination and the
analysis rests on the totality of the circumstances surrounding a child’s situation. The following
factors replicate what many courts utilize to evaluate the best interests of a child for termination
of rights proceedings: (1) the desires of the child; (2) the emotional and physical needs of the
child now and in the future; (3) the emotional and physical danger to the child now and in the
future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to
assist these individuals to promote the best interest of the child; (6) the plans for the child by
these individuals or by the agency seeking custody; (7) the stability of the home or proposed
placement; (8) the acts or omissions of the parent which may indicate that the existing parent-
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child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.
Horvatich v. Texas Dept. of Protective and Reg. Services, 78 S.W.3d 594 (Tex. App. Austin
2002).
Beginning with the first factor, desires of the child, the record reflects that Caleb misses
his mother, but remains very happy living with the Smiths. R. at 10. Second, a look at the
emotional and physical needs of the child now and in the future reveal that Caleb’s needs are
better met with the Smiths. If he were reunited with his mother he would not be able to go
outside and play. Id. He wouldn’t be able to enroll in sports leagues or have play dates with other
children. However with the Smiths, Caleb has joined a soccer team and has been reunited with
his previous friends and school community. Id. There is nothing in the record that indicates that
the Smiths would not meet Caleb’s emotional needs. On the other hand, if Caleb were to return
to Appellee, he would undoubtedly be affected by Appellee’s deteriorating condition. Therefore,
it is clear that his emotional needs would be better met by living with the Smiths.
Analyzing the factor of Appellee’s parental abilities reveals that she does not have the
requisite capacity to take care of Caleb. She cannot move without assistance and will soon be
unable to speak. The record has described her as a shell with a fully functioning brain. R. at 13.
On the other hand the Smiths are readily capable of meeting Caleb’s needs and providing him
with a loving and stable home environment. The Smiths already have a son, indicating
familiarity with parenting. Further, the Smiths ensure that Caleb is properly fed, dressed,
cleaned, and completing his homework. Id. The record states that Caleb is thriving. Id. The fifth
factor inquires into the available programs designed to help promote the child’s best interest. If
Caleb were to live with Appellee, his best interests would likely be served with the programs that
were administered before he was removed. Daycare and meal services would continue, though
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other services to promote his emotional and physical growth might not be available, as they are
with the Smiths. With the Smiths, Caleb has been reunited with his old friends, joined a soccer
league, and has his meals prepared for him by someone who has an investment in his future.
Next, analysis of the sixth factor, parental plans for child, demonstrates that the best
interests are met by allowing the child to remain with the Smiths. Appellee cannot adequately
plan for the future of her child because she is dealing with the end stages of a terminal disease.
Though Appellee has made laudable efforts to meet Caleb’s needs, from recording stories to
instructing nurses to purchase snacks he can easily access, she is unable to adequately address his
present needs let alone plan for his future. Appellee is unable to plan for Caleb’s future including
his schooling, emotional, physical and psychological needs. The Smiths are equipped to plan for
Caleb’s future. They have a two parent stable home environment where they are already
parenting one child and thus are already in a position to plan for the future of Riley and Caleb.
Analyzing the stability of the foster home results in a positive assessment for Caleb. The
Smiths are a licensed foster family, which indicates they have passed a preliminary screening
process imposed by DSS. Further, the record reflects that life with the Smiths is structured. Caleb
eats breakfast in the morning, goes to school, and plays with his friends after school. Id. Ms.
Smith is reliable, as the record indicates that she is very responsive to Caleb’s needs, be it
homework, intramural activity, cleanliness, or illness. Id.
The next two factors utilized when determining best interest, address acts or omissions on
the part of the parent and reasons for those acts or omissions. Here, there are glaring omissions
by Appellee. While the failure to act is due to a disability, the truth remains that Appellee is
unable to perform many parental acts that would allow for the conclusion that her relationship
with Caleb is a proper one. Appellee cannot perform any tasks on her own, thereby making it
35
impossible for her to perform any tasks for Caleb outside of providing moral or encouraging
support. However while this support is very much an act and important to parenting, this ability
is soon to be an omission as Appellee’s ability to speak will vanish in a few short months. R. at
12. There is nothing about Appellee’s situation, regardless of the disheartening nature, that
indicates that her relationship with her son would be proper. The unfortunate reality of
Appellee’s situation is that she cannot parent her son without significant help, help that the state
cannot be expected to provide. Applying these factors to the child’s current family situation, it is
not in the best interest of the child to remove him from his current stable environment and place
him back with his terminally ill mother who is presently and in the future unable to meet the
child’s basic needs.
In the present situation we are respectfully asking this court to adhere to the difficult but
necessary determination that due to her terminal illness Appellee is unable to properly care for
her child and therefore because the mother’s illness threatens the safety of the child, the state
must intervene on behalf of the child’s best interests. In re M.H., the court made a similarly
difficult determination upholding termination of parental rights where accommodations
necessary to enable father to parent his child were beyond the scope of the ADA. In re M.H., 143
P.3d 103 (Mont.2006) There, the father was unable to parent within a reasonable time or the
foreseeable future and the court found that in order to be able to adequately parent his child he
would need someone in the home every minute for at least six to nine months in order to be able
to be a minimally adequate parent. Here, Appellee’s situation is markedly worse, for no amount
of time will allow her to be able to parent her child. Appellee suffers from a terminal illness and
is rapidly declining both in her physical and mental capacities. The trial court properly ruled to
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keep Caleb with the Smiths, a supportive stable family environment where he is able to visit his
mother twice weekly.
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CONCLUSION For the reasons stated herein, Respondent-Appellant, The New Scotland Department of
Social Services respectfully requests that this Court affirm the decision below.
Respectfully Submitted,
/s/________________________ Team 135
Counsel for the Respondent –Appellant,
New Scotland County Department of Social Services