brief for the respondent-appellant 653.pdfthird appellate division _____ brief for the...
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Index 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
____________________
ORAL ARGUMENT REQUESTED
Team No. 653
Counsel for the Respondent-Appellant,
New Scotland County Department of Social Services
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES ......................................................................................................... iii
QUESTION PRESENTED ..............................................................................................................1
STATEMENT OF THE CASE ........................................................................................................1
SUMMARY OF THE ARGUMENT ..............................................................................................4
ARGUMENT ...................................................................................................................................6
I. THE THIRD APPELLATE DIVISION ERRONEOUSLY CONCLUDED THAT THE
NEW SCOTLAND DEPARTMENT OF SOCIAL SERVICES VIOLATED THE
AMERICANS WITH DISABILITIES ACT BY DECLINING TO PROVIDE THE
SPECIFIC MODIFICATION, TWO FULL TIME CAREGIVERS, WHICH JENNIFER
L. DEMANDED ..................................................................................................................6
A. Jennifer L. Does Not Have a Title II Claim Because Providing Two Full-Time
Caregivers is an Unreasonable Modification that is Insufficient to Satisfy the
Essential Eligibility Requirement of N.S. SSL § 384-B, that the Parent be Able to
Adequately Care for the Child. ................................................................................8
1. Jennifer L. Cannot Satisfy the Essential Eligibility Requirement of N.S.
SSL § 384-b, that the Parent be Able to Adequately Care for the Child. ....9
2. Jennifer L.’s Requested Modification is Unreasonable Because Providing
Two Full-time Caregivers Requires Waiving the Essential Eligibility
Requirement. ..............................................................................................11
B. Jennifer L.’s Demand for Two Full-Time Caregivers is a Fundamental Alteration,
Which Would Require DSS to Create a New Service that Provides Proxy
Parents. ...................................................................................................................13
C. DSS, Consistent with the Policy Reflected in N.S. SSL § 384-b, Provided Jennifer
L. with Meaningful Access to Caleb......................................................................15
II. THE THIRD APPELLATE DIVISION ERRONEOUSLY CONCLUDED THAT IT IS
IN CALEB’S BEST INTEREST TO BE PLACED WITH JENNIFER L., WHEN HE IS
CURRENTLY LIVING A “NORMAL FAMILY LIFE” WITH HIS FOSTER CARE
FAMILY. ..........................................................................................................................18
ii
A. Stability is Heavily Weighted in the Best Interests Analysis Because of its
Importance in a Child’s Life, and Remaining with His Foster Care Family is the
Best Way to Maintain Stability in Caleb’s Life. ....................................................21
B. Caleb’s Physical and Emotional Needs are Best Provided for by Remaining with
His Foster Care Family Under the Best Interests Analysis Because the Physical
Manifestations of Jennifer L.’s Disease Prevent Her from Meeting Caleb’s
Needs. ....................................................................................................................24
1. Jennifer L. is Unable to Provide for Caleb’s Physical Needs at this Time
and at any Time in the Future ....................................................................26
2. Jennifer L. is Unable to Provide for Caleb’s Emotional Needs Now and in
the Future ...................................................................................................27
C. Allowing Caleb to Remain with His Foster Care Family Will Offer Him the Best
Opportunity to Develop and Thrive in a “Normal Family Life,” Consistent with
the Legislature’s Intent and the State’s Interest in the Welfare of
Children..................................................................................................................28
CONCLUSION ..............................................................................................................................30
iii
TABLE OF AUTHORITIES
Cases: Pages
United States Supreme Court
Alexander v. Choate, 469 U.S. 287 (1985). ...................................................................................15
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) ...........................................................14, 15
Santosky II v. Kramer, 455 U.S. 745 (1982). .................................................................................29
Stanley v. Illinois, 405 U.S. 645 (1972) ...................................................................................28, 29
Tennessee v. Lane, 541 U.S. 509 (2004) ........................................................................................15
Federal Court
Castellano v. City of New York, 946 F. Supp. 249 (S.D. N.Y. 1996) ............................................12
Easley by Easley v. Snider, 36 F.3d 297 (3d Cir. 1994) ........................................................ passim
Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995) ............................................................................7
Mary Jo C. v. N. Y. State and Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013). ........................7, 9, 12
McElwee v. Cnty. Of Orange, 700 F.3d 635 (2d Cir. 2012). ...........................................................7
Pottgen v. Mo. State High Sch. Activities Ass’n, 40 F.3d 926 (8th Cir. 1994) ....................9, 11, 12
Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79 (2d Cir. 2004) ................................................13
Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003). .....................................................................13
Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976 (9th Cir. 1997) .................................8
State Court
Adoption of Michael H., 898 P.2d 891 (Cal. 1995) .......................................................................24
Arneson v. Arneson, 670 N.W.2d 904 (S.D. 2003). .......................................................................24
Bennett v. Jeffreys, 356 N.E.2d 277 (N.Y. 1976). ...................................................................19, 22
Clapper v. Harvey, 716 A.2d 1271 (Pa. Super. Ct. 1998) .............................................................19
iv
C.F. Morris Co. v. Foley Constr., 376 N.E.2d 578 (Ohio 1978) ...................................................20
Davis v. Flickinger, 674 N.E.2d 1159 (Ohio 1997). ......................................................................20
Fish v. Fish, 939 A.2d 1040 (Conn. 2008) ....................................................................................19
Garska v. McCoy, 278 S.E.2d 357 (W. Va. 1981). ........................................................................25
Hiller v. Fausey, 909 A.2d 875 (Penn. 2006) ................................................................................29
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) ...........................................................19, 20, 24, 28
In re Adoption of Tachick, 210 N.W.2d 865 (Wis. 1973). .............................................................19
In re B.W., 626 P.2d 742 (Colo. App. 1981)..................................................................................26
In re Chance Jahmel B., 187 Misc.2d 626 (N.Y. Fam. Ct. 2001). ................................................12
In re Davonta V., 940 A.2d 733 (Conn. 2008). .............................................................................20
In re Eden F., 741 A.2d 873 (Conn. 1999) ....................................................................................23
In re Hands, 553 A.2d 1171 (Del. 1989). ......................................................................................22
In re J.B.S., 863 P.2d 1344 (Wash. 1993). .....................................................................................17
In re Joseph W., 79 A.3d 155 (Conn. Super. Ct. 2013). ..............................................19, 21, 22, 23
In re K.C., 219 S.W.3d 924 (Tex. Ct. App. 2007). ........................................................................21
In re Marriage of Levin, 102 Cal. App. 3d 981 (Cal. Ct. App. 1980). ..........................................22
In re Michael B., 604 N.E.2d 122 (N.Y. 1992)..............................................................................27
In re R.L.S., 820 N.E.2d 1201 (Ill. App. Ct. 2004) ........................................................................19
In re Rasheeda K. v Tawana M., 981 N.Y.S.2d 638 (N.Y. Fam. Ct. 2013). .................................25
In re Sumey, 621 P.2d 108 (Wash. 1980). .....................................................................................17
In re Welfare of A.J.R., 896 P.2d 1298 (Wash. Ct. App. 1995). ..............................................14, 16
Meredith v. Meredith, 521 So.2d 793 (La. Ct. App. 1988). ...........................................................21
Pietrzak v. Schroeder, 759 N.W.2d 734 (S.D. 2009).....................................................................20
v
Roth v. Haag, 834 N.W.2d 337 (S.D. 2013) ..................................................................................21
Stone v. Daviess Cnty. Div. of Children and Family Serv., 656 N.E.2d 824
(Ind. Ct. App. 1995) ...........................................................................................................14, 16, 17
Statutes:
Federal Provisions
29 U.S.C. § 794 (2012) ....................................................................................................................7
42 U.S.C. § 12131 (2012) ................................................................................................................8
42 U.S.C. § 12132 (2012). ....................................................................................................7, 8, 15
State Provisions
750 Ill. Comp. Stat. § 5/602 (2010) ...............................................................................................25
Ariz. Rev. Stat. Ann. § 25-403 (2013). ..........................................................................................25
Colo. Rev. Stat. § 14-10-123 (2012). .............................................................................................22
Colo. Rev. Stat. § 14-10-124 (2014). .............................................................................................25
N.S. SSL § 384-b ................................................................................................................... passim
Tex. Family Code Ann. § 102.003 (2011). ....................................................................................22
Regulations:
28 C.F.R. § 35.130(b)(7) (2014) ........................................................................................11, 13, 15
Secondary Sources
Joseph Goldstein et al., Before the Best Interests of the Child (1st ed. 1973). ..............................27
Positive Parenting Tips for Healthy Child Development: Middle Childhood (6-8 years of age),
Ctr. for Disease Control and Prevention, U.S. Dep’t of Health and Human Servs.,
http://www.cdc.gov/ncbddd/childdevelopment/positiveparenting/pdfs/middlechildhood6-8.pdf
(last updated Nov. 25, 2014) ..........................................................................................................25
Positive Parenting Tips for Healthy Child Development: Preschoolers (3-5 years of age), Ctr. for
Disease Control and Prevention, U.S. Dep’t of Health and Human Servs.,
http://www.cdc.gov/ncbddd/childdevelopment/positiveparenting/pdfs/preschoolers3-5.pdf (last
updated Nov. 25, 2014) ..................................................................................................................27
vi
What is Huntington’s Disease?, Huntington’s Disease Soc’y of Am.,
http://www.hdsa.org/about/our-mission/what-is-hd.html (last visited Jan. 9, 2015) .....................26
1
QUESTIONS PRESENTED
I. Under the Americans with Disabilities Act, did the Department of Social Services
appropriately decline Jennifer L.’s demand for two full-time caregivers, when she did not
meet the essential eligibility requirement under the New Scotland law and the demand
would fundamentally alter the nature of the services currently provided.
II. Under New Scotland law, did the Family Court correctly decide that it is in Caleb’s best
interest to remain with his foster care family, when placing him with Jennifer L. would
create instability and she is unable to provide for his physical and emotional needs.
STATEMENT OF THE CASE
Statement of Facts
The New Scotland County Department of Social Services (“DSS”) currently has custody
over five year-old Caleb after intervening on his behalf when Jennifer L., his mother, was placed
in a rehabilitative nursing home after breaking her hip. (R. 10). DSS was involved in Caleb’s life
the year prior to this incident. (R. 9). That year was an “especially difficult” one for Caleb. Id.
During that year, Caleb had to “move away from the only home that [he] had ever known” after
Jennifer L. was fired from her jobs and lost their home in foreclosure. Id. Caleb was “forced” to
transfer schools and leave his friends in the middle of the school year. Id.
During that time, DSS assisted Caleb and Jennifer L. by finding them an apartment in the
State of New Scotland. Id. DSS also paid for Caleb to attend a full-time daycare program that
provided him transportation between his home and his school. Id. Caleb ate both his breakfast
and lunch while at this program. Id. Since Jennifer L., who was diagnosed with amyotrophic
lateral sclerosis (“ALS”), was becoming “less and less stable on her feet,” her DSS-provided
nurse made dinner for Caleb. (R. 7, 9).
2
As Jennifer L.’s disease progressed, Caleb was “forced to deal with Jennifer’s loss of
motor function.” (R. 9). Even with the assistance of a walker, Jennifer L. could only move three
or four steps before falling. (R. 10). On January 1, 2014, Jennifer L. fell down the stairs of her
apartment building and broke her hip. Id. At that time, DSS placed Caleb with a licensed foster
care family because Jennifer L., his sole custodian, was transferred to a nursing home. (R. 8, 10).
When Jennifer L.’s nursing home stay appeared to become permanent, DSS initiated a
proceeding to terminate Jennifer L.’s parental rights. (R. 6). Jennifer L. did not contest the
termination of her parental rights and the New Scotland Family Court subsequently terminated
Jennifer L.’s parental rights on August 4, 2014. (R. 11). Caleb has remained with his foster care
family, the Smiths, since January 2014. (R. 10).
Caleb is “thriving in his current living situation” Id. Since the Smiths live in the same
school district where Caleb initially grew up, Caleb has been able to “continue a normal life” by
returning to his previous school and reuniting with his friends. Id. Additionally, Mrs. Smith takes
care of Caleb by preparing his meals, making sure he is bathed, ensuring he wears clean clothes,
and caring for him when he is sick. Id. Mr. Smith helps Caleb with his homework. Id. The
Smith’s seven-year-old son, Riley, is the “big brother” that Caleb never had. Id. Caleb and Riley
“do everything together.” Id. They eat together, go to school together, and play together after
school. Id. They are also enrolled in the same local soccer league. Id. Moreover, the Smiths take
Caleb to visit Jennifer L. twice a week and every weekend. Id. The Smiths intend to adopt Caleb
after Jennifer L. passes away. (R.13).
According to Jennifer. L.’s physician, she has roughly six months to live. Id. Jennifer L.
was released from the nursing home and into her nurse’s care in September of 2014. (R. 11).
After her release, a DSS social worker met with Jennifer L. to determine if a reunification plan
3
could be created. (R. 12). The in-home study established that Jennifer L. “is unable to care for
herself” and needs a registered nurse for at least twelve hours a day. Id. Jennifer L. is in a
wheelchair and her symptoms render her physically unable to move within the apartment. (R.
13). In three months, Jennifer L. will be placed on a portable ventilator, at which point she will
be unable to speak or swallow food. (R. 12). Her muscles will severely weaken and atrophy. Id.
Jennifer L. has already lost the use of her right hand and arm. Id. Jennifer L.’s use of her
extremities and control of her muscular functions will continue to worsen until she is unable to
move at all. Id. Additionally, the social worker found that Jennifer L. cannot bathe Caleb and she
cannot supervise Caleb while he plays outside. Id. The social worker recommended that “it is in
Caleb’s best interest” to remain with the Smith family and continue the current visitation
arrangement with Jennifer L. (R. 13).
Procedural History
Petitioner-Appellee, Jennifer L. brought this action in the New Scotland Family Court
claiming that DSS, Respondent-Appellant, violated her rights under the Americans with
Disabilities Act (“ADA”) by declining to provide her with the two full-time caregivers, and
claiming that reunification would be in Caleb’s best interest. Id. On January 30, 2015, the New
Scotland Family Court granted DSS’s Motion for Summary Judgment and found that (1) DSS
did not violate the ADA when it declined to provide two full-time caregivers for Caleb in order
to reunify Jennifer L. and Caleb, and (2) it is Caleb’s best interest to remain in his foster care
family. (R. 17). Jennifer L. then appealed the Family Court’s decision to the Third Appellate
Division of New Scotland. (R. 4). On February 13, 2015, the State of New Scotland, Third
Appellate Division, reversed the Family Court’s decision on both issues. (R. 22). On the same
4
day, DSS filed a timely appeal of the Third Appellate Division’s decision, and the Third
Appellate Division granted the appeal on both issues. (R 5).
SUMMARY OF THE ARGUMENT
This Court should reverse the holding of the Third Appellate Division because under the
ADA, DSS appropriately declined the demand by Jennifer L. for two full-time caregivers. In
order to establish discrimination under Title II of the ADA, Jennifer L. must demonstrate that she
is a “qualified individual with a disability” and that she requested a reasonable modification of
the public entity’s services. Even if Jennifer L. establishes those elements, DSS can show that
Jennifer L.’s requested modification was a fundamental alteration of the services provided by
DSS.
First, Jennifer L. has failed to establish a Title II claim because she is not a “qualified
individual with a disability.” Since Jennifer L. does not satisfy the essential eligibility
requirement set by New Scotland law, that the parent be adequately able to take care of the child,
she is not considered a qualified disabled individual under the ADA. Jennifer L.’s physical
limitations, as a result of her ALS, preclude her from sufficiently taking care of Caleb.
Furthermore, Jennifer L.’s requested modification, two full-time caregivers, is unreasonable on
its face because the essential eligibility requirement is that Jennifer L. be able to take care of the
child, not that the caregivers be able to take care of the child. Thus, even if DSS provided
Jennifer L. with two full-time caregivers, Jennifer L. would still not satisfy the essential
eligibility requirement.
Second, DSS has demonstrated that the requested modification is a fundamental
alteration of the services currently provided by DSS. Providing two full-time caregivers would
shift the focus of DSS’s services from providing assistance to improve parenting skills, to
5
providing proxy parents. Since DSS does not currently provide proxy parents, DSS would be
forced to create a new service in order to fulfill Jennifer L.’s request. This would be an undue
burden on the state because the state has a responsibility to provide its services evenhandedly.
Third, consistent with New Scotland law, DSS provided Jennifer L. with meaningful access to
Caleb by setting up a visitation arrangement. DSS appropriately chose to prioritize Caleb’s needs
in denying Jennifer L.’s requested reunification plan. In light of these considerations, DSS did
not violate the ADA because Jennifer L.’s request unreasonably modified and fundamentally
altered the services offered by DSS.
Additionally, this Court should reverse the holding of the Third Appellate Division and
reinstate the holding of the Family Court, because it is in Caleb’s best interest to remain with his
foster care family. In determinations made after parental rights have been terminated, as is the
case here, the sole consideration is the best interests of the child involved. The relevant best
interests factors that should be weighed by the Court are the stability of the child and the ability
of the parent to provide for the child’s physical and emotional needs. The outcome of the best
interest analysis, allowing Caleb to remain with his foster care family, is consistent with the New
Scotland legislature’s intent and the state’s interest in a child’s welfare.
First, stability is vital to a child’s life and is therefore weighed heavily in the best
interests analysis. It is in Caleb’s best interest to maintain stability in his life by allowing him to
remain with the Smith family. Remaining with the Smith family will prevent disruption in
Caleb’s life when he is placed back with Jennifer L. and then again displaced when she passes
away. Caleb lives a stable life with the Smiths and thrives in that environment.
Second, Caleb’s physical and emotional needs are best protected by remaining with his
foster care family, because Jennifer L. is unable to provide for Caleb’s physical and emotional
6
needs. It is appropriate to consider the physical abilities of the parent, when analyzing whether
they can provide for a child. In order to provide for a child’s physical and emotional needs, a
parent must be able to perform minimal parental responsibilities. Because Jennifer L. is unable to
provide for her own physical needs, she is also incapable of parenting Caleb, while the Smith
family has been providing for Caleb’s physical and emotional needs for the past year.
Finally, allowing Caleb to remain in the Smith’s stable home protects Caleb’s health and
emotional welfare thereby satisfying the state’s obligation to protect the minor child. Further,
this placement aligns with the New Scotland legislature’s intent to provide a child with a
“normal family life in a permanent home.” A parent’s fundamental right to parent is subordinate
to the state’s interest in protecting the welfare of its children. The best interests analysis focuses
on Caleb’s welfare and not Jennifer L.’s interests, which is consistent with what the state is
intended to protect.
For the foregoing reasons, this Court should reverse the Third Appellate Division and
reinstate the Family Court’s holding that DSS did not violate the ADA when it declined to
provide two full-time caregivers and it is in Caleb’s best interest to remain with his foster care
family.
ARGUMENT
I. THE THIRD APPELLATE DIVISION ERRONEOUSLY CONCLUDED THAT THE
NEW SCOTLAND DEPARTMENT OF SOCIAL SERVICES VIOLATED THE
AMERICANS WITH DISABILITIES ACT BY DECLINING TO PROVIDE THE
SPECIFIC MODIFICATION, TWO FULL TIME CAREGIVERS, WHICH
JENNIFER L. DEMANDED.
The Third Appellate Division erroneously concluded that the New Scotland Department
of Social Services violated the Americans with Disabilities Act by declining to provide two full-
time caregivers as part of the rehabilitative services Jennifer L. requested in order to regain
7
custody of Caleb, her son. Title II of the ADA states 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. § 12132 (2012). Congress enacted Title II of the
ADA to expand the reach of § 504 of the Rehabilitation Act’s non-discrimination provisions to
state and local governments. Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir. 1995). Section 504
of the Rehabilitation Act states that “[n]o otherwise qualified individual with a disability…shall,
solely by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance.” 29 U.S.C. § 794(a) (2012). Since the “standards adopted by the two statutes
are nearly identical,” courts use the same analysis for both statutes. McElwee v. Cnty. of Orange,
700 F.3d 635, 640 (2d Cir. 2012). Questions of law should be reviewed under a de novo standard
of review. Mary Jo C. v. N. Y. State and Local Ret. Sys., 707 F.3d 144, 151 (2d Cir. 2013). Under
the standards adopted by the ADA and the Rehabilitation Act, Jennifer L.’s request for two full-
time caregivers is unreasonable.
In this case, under the ADA, DSS properly declined Jennifer L’s demand for the
following three reasons. First, Jennifer L. does not have a Title II claim because, under New
Scotland Social Services Law § 384-(b) (hereinafter “N.S. SSL”), she does not meet the essential
eligibility requirement that the parent be able to adequately care for the child. Second, Jennifer
L.’s demand for two full-time caregivers is a fundamental alteration, which would require DSS
to create a new service that provides proxy parents. Third, DSS acted consistently with the policy
reflected in N.S. SSL § 384-b by providing Jennifer L. with meaningful access to Caleb.
Therefore, this Court should reverse the Third Appellate Division and find that DSS did not
8
violate the ADA when it declined to provide two full-time caregivers because Jennifer L. is
unable to adequately care for Caleb.
A. Jennifer L. Does Not Have a Title II Claim Because Providing Two Full-Time
Caregivers is an Unreasonable Modification that is Insufficient to Satisfy the
Essential Eligibility Requirement of N.S. SSL § 384-B, that the Parent be Able to
Adequately Care for the Child.
Jennifer L. does not have a Title II claim because the purpose of N.S. SSL § 384-b, to
protect the “health and safety of the child” by providing a “normal family life in a permanent
home,” cannot be fulfilled when Jennifer L. is unable to adequately care for the child because of
her medical illness. In order to demonstrate a violation of Title II of the ADA, Jennifer L. must
show: she is a “qualified individual with a disability;” she was denied the benefits of a public
entity’s services, programs or activities; and she was denied those benefits because of her
disability. Weinreich v. L. A. Cnty. Metrop. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997); See
42 U.S.C. § 12132. The ADA defines “qualified individual with a disability,” as “an individual
with a disability who, with or without reasonable modifications . . . meets the essential eligibility
requirements for the receipt of services or the participation in programs or activities provided by
a public entity.” 42 U.S.C. § 12131 (2012) (emphasis added).
To determine whether a public entity’s services discriminate in violation of the ADA, the
court must analyze two factors: (1) whether the disabled individual meets the services’ stated
requirements regardless of his/her disability, and (2) whether a reasonable accommodation would
allow the disabled individual to receive the benefits of the public entity’s services. Easley by
Easley v. Snider, 36 F.3d 297, 302 (3d Cir. 1994). In this case, the services offered by DSS are
not discriminatory for the following two reasons. First, Jennifer L. cannot satisfy the essential
eligibility requirement of N.S. SSL § 384-b because she cannot adequately care for Caleb due to
her physical limitations. Second, Jennifer L.’s requested modification is unreasonable because it
9
requires waiving the essential eligibility requirement that the parent be able to adequately care
for the child.
1. Jennifer L. Cannot Satisfy the Essential Eligibility Requirement of N.S. SSL §
384-b, that the Parent be Able to Adequately Care for the Child.
Jennifer L. is not a “qualified individual with a disability,” thus she has no Title II claim,
because she does not meet the essential eligibility requirement of N.S. SSL § 384-b. Title II of
the ADA was intended only to protect disabled individuals who potentially could satisfy the
essential eligibility requirements of a program or activity. See, e.g., Pottgen v. Mo. State High
Sch. Activities Ass’n, 40 F.3d 926, 930 (8th Cir. 1994) (noting that since no reasonable
accommodation existed to allow disabled individual to meet essential eligibility requirement of
program, there was no protection under § 504 of the Rehabilitation Act). The “essential
eligibility requirement” determination is not an individualized inquiry; rather, courts determine
whether an eligibility requirement is essential by assessing the significance of the requirement to
the program at issue. Mary Jo C., 707 F.3d at 157. Courts look to the services actually offered by
the public entity to establish the essential nature of the program. Easley, 36 F.3d at 303.
When the purpose of the “eligibility requirement” is of significant importance to the
public entity’s service or program, courts conclude the eligibility requirement is essential. See,
e.g., Pottgen, 40 F.3d at 929-30 (Eighth Circuit holding that age limit is an essential eligibility
requirement because purpose of the age limit, to reduce the competitive advantage for teams with
older athletes, protect younger athletes, dissuade students from postponing their education, and
prevent coaches from “red-shirting” student athletes, was of “immense importance” in any
interscholastic sports program). The Third Circuit, in Easley, examined the actual services
offered pursuant to the Pennsylvania Attendant Care Services Act, which allowed physically
disabled but mentally alert individuals to live in their own homes rather than in institutions.
10
Easley, 36 F.3d at 299, 302. The court determined that personal control was essential to the
program because the disabled individual was required to do tasks and make choices, such as
interviewing, hiring, and firing attendants. Id. at 300. The court noted that every model of the
attendant care services offered by the state demonstrated that the program beneficiaries retained
personal control. Id. at 303. Because the goal of the program was to exercise personal control,
the court concluded that the physically disabled individual had to be mentally alert in order to
fulfill the program’s goal. Id. at 304. Thus, the court held that mental alertness was an essential
eligibility requirement for the physically disabled individuals to receive the benefits of the state’s
attendant care services. Id.
In this case, the “eligibility requirement” is that the parent must be able to adequately
care for the child. The purpose of this requirement, as noted in N.S. SSL § 384-b(1)(a), is to both
protect the “health and safety of the child” and to provide the child a “ normal family life in a
permanent home.” N.S. SSL § 384-b(1)(a). New Scotland law authorizes DSS to utilize different
services to encourage a relationship between parent and child, such as creating a rehabilitative
services plan, arranging visitation, and informing the parent of the child’s development. N.S.
SSL § 384-b(3). DSS, however, is not required to provide a requested rehabilitative services plan
to the disabled parent if doing so would be contrary to the legislature’s intent. Examining the
services offered by DSS, as the Third Circuit did in Easley, establishes that the essential nature
of the program is to encourage a relationship between parent and child, but only to the extent that
the child is healthy, safe, and raised in a “normal family life.”
Jennifer L. does not meet the essential eligibility requirements because she is physically
unable to adequately care for Caleb. DSS's in-home study and findings show that Jennifer L. is
unable, due to her ALS, to take care of herself and needs in-home care by a registered nurse. (R.
11
12). Furthermore, Jennifer L.’s ALS is progressing. Id. In approximately three months she will
be unable to speak or swallow food, and muscles throughout her body will severely weaken and
atrophy. Id. Jennifer L. has already lost the use of her right hand and arm, and she will eventually
lose the use of all her extremities, as well as lose control over muscular functions. Id. Prior to her
hospitalization, Jennifer L. was unable to make food for Caleb or take him to school. (R. 9). At
this point, she cannot bathe Caleb, or even supervise him if he leaves the apartment. (R. 12).
According to her physician, Jennifer L. has approximately six months to live. (R. 13). During the
next six months, Jennifer L. will be unable to feed Caleb, bathe him, and supervise him outside
of the apartment. Id. Also, she will lose the ability to speak to him or physically interact with
him. Id. Jennifer L.’s physical limitations prevent her from taking care of her own well-being,
and also preclude her from adequately caring for a five-year old child. Thus, Jennifer L. does not
meet the essential eligibility requirement that the parent be able to adequately care for the child.
2. Jennifer L.’s Requested Modification is Unreasonable Because Providing Two
Full-time Caregivers Requires Waiving the Essential Eligibility Requirement.
Jennifer L.’s requested modification is unreasonable on its face because providing two
full-time caregivers requires waiving the essential eligibility requirement of N.S. SSL § 384-b,
that the parent be able to adequately care for the child. The Title II regulations require public
entities to “make reasonable modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis of disability . . . .” 28 C.F.R. §
35.130(b)(7) (2014). Essential eligibility requirements, unlike “rules, policies, [and] practices,”
cannot be reasonably modified or waived because that would constitute an impermissible
fundamental alteration to the public entity’s services, programs, or activities. Pottgen, 40 F.3d at
930.
12
To determine if a requested modification is “reasonable” there must be a fact-specific,
case-by-case inquiry. Mary Jo C., 707 F.3d 144, 153 (2d Cir. 2013) (quoting Staron v.
McDonald’s Corp., 51 F.3d 353, 356 (2d Cir. 1995)). In making such a determination, courts
should consider factors such as “the effectiveness of the modification in light of the nature of the
disability in question.” Id. Although determining whether a modification is reasonable and
whether an eligibility requirement is essential is generally a fact-specific analysis, “certain
eligibility requirements of a program by their nature are essential and any alteration unreasonable
as a matter of law.” Castellano v. City of New York, 946 F. Supp. 249, 254 (S.D. N.Y.1996).
When there are no reasonable modifications that would allow the disabled individual to
satisfy the essential eligibility requirements of the program, public entities are not required to
waive the essential eligibility requirements in order to comply with Title II. See Pottgen, 40 F.3d
at 930. The Eighth Circuit in Pottgen concluded that no reasonable accommodation existed
where a learning-disabled individual could not satisfy the essential eligibility requirement, an age
limit, for the interscholastic sports program. Id. Similarly, in In re Chance Jahmel B., the New
York Family Court determined that the only possible accommodation, a full-time caregiver for
the child and supervision services for the father, could not reasonably be provided. In re Chance
Jahmel B., 187 Misc. 2d 626, 632 (N.Y. Fam. Ct. 2001). In that case, the court noted that the
parent’s condition, due to a brain injury, meant that “the usual parent counseling or training” for
reunification purposes would not be sufficient. Id.
Jennifer L. demanded that DSS provide two full-time caregivers to take care of Caleb. (R.
11). However, even if DSS provides two full-time caregivers, Jennifer L.’s requested
modification is unreasonable on its face because it does not help Jennifer L. satisfy the
requirement. Instead, her modification allows the two full-time caregivers to adequately take care
13
of Caleb. In order for Jennifer L. to satisfy the necessary requirement that she, herself, be able to
adequately care for Caleb, DSS would have to waive the essential eligibility requirement, which
is an unreasonable modification. Therefore, this Court should reverse the Third Appellate
Division and find that Jennifer L. did not establish that she is a “qualified individual with a
disability,” a necessary element of a Title II claim, because she cannot satisfy the essential
eligibility requirement of N.S. SSL § 384-b, with or without a modification.
B. Jennifer L.’s Demand for Two Full-Time Caregivers is a Fundamental Alteration,
Which Would Require DSS to Create a New Service that Provides Proxy Parents.
DSS did not violate the ADA by declining Jennifer L.’s demand because providing two
full-time caregivers would require DSS to create a new service that changes the focus of its
current services from helping parents learn to be good parents to actually providing proxy
parents. A public entity is not required to make “an accommodation at all if the requested
accommodation ‘would fundamentally alter the nature of the service, program, or activity.’”
Powell v. Na. Bd. of Med. Exam’rs, 364 F.3d 79, 88 (2d Cir. 2004) (quoting 28 C.F.R. §
35.130(b)(7)). Additionally, the language of Title II indicates that “public entities are not
required to create new programs that provide heretofore unprovided services” to help disabled
individuals. Townsend v. Quasim, 328 F.3d 511, 518 (9th Cir. 2003).
There is a fundamental alteration to a public entity’s services when the disabled
individual’s requested modification changes the whole focus of the existing program. The Third
Circuit in Easley held that the use of surrogates, to satisfy the mental alertness eligibility
requirement, was a fundamental alteration because the focus would shift from providing aid to
help the disabled individual, to providing a proxy to actually make the decisions on behalf of the
disabled individual. Easley, 36 F.3d at 305. Additionally, the court noted a fundamental
14
alteration exists where the “proposed alteration would create a program that the state never
envisioned.” Id.
Further, where the requested modification creates an undue burden on the state, it is
evidence of a fundamental alteration. In Olmstead v. L.C. ex rel. Zimring, the United States
Supreme Court held that mental illness is a disability and community placement is appropriate
when, among other factors, the “placement can be reasonably accommodated, taking into
account the resources available to the State and the needs of the others with mental disabilities.”
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587 (1999). In that case, the plaintiffs were two
women, who were diagnosed with mental illnesses, and clinical assessments indicated both
plaintiffs should be treated in a community based setting rather than an institutional setting. Id. at
593. The Court concluded, in analyzing a fundamental alterations defense, the lower court should
consider the cost of providing the care to the litigants, the range of services provided to others
with disabilities, and the state’s duty to equitably provide services, all within the context of the
state’s resources. Id. at 597.
In this case, New Scotland law provides that DSS may “assist, develop, and encourage” a
relationship between parent and child by “creating a rehabilitative services plan with appropriate
services to enable the child and his or her parent(s) to successfully reunite.” N.S. SSL § 384-b(3).
Courts have considered “appropriate services” to include instructions on the basics of parenting,
charts, and parenting classes. See Stone v. Daviess Cnty. Div. of Children and Family Serv., 656
N.E.2d 824, 830 (Ind. Ct. App. 1995); see also In re Welfare of A.J.R., 896 P.2d 1298, 1302
(Wash. Ct. App. 1995). Jennifer L. did not request such services, but instead requested two full-
time caregivers to take care of Caleb. (R. 11). Similar to Easley, if DSS were to provide two full-
time caregivers, the entire focus of the rehabilitative services would change. The focus would
15
shift from DSS providing assistance to parents in order to help them become better parents, to
DSS actually providing substitute parents. This would also require DSS to create a new service,
which is a fundamental alteration of the current services provided. Two full-time caregivers is
not the equivalent of the “appropriate services” provided by DSS because it does not help the
parent fulfill his or her parental duties, but rather adds two extra parents into the equation.
Furthermore, providing two full-time caregivers fundamentally alters the services
provided by DSS because of the financial burden on the state. The Supreme Court in Olmstead
recognized that the state could consider the cost of providing care, the types of services provided
to other disabled individuals, and the state’s responsibility to evenhandedly provide services.
Thus, this Court should not consider Jennifer L.’s request as a standalone request, but rather view
it in the context of similar requests from similarly situated disabled parents. DSS must provide its
services with an even hand. Therefore, this Court should reverse the Third Appellate Division
and find that DSS did not violate the ADA because Jennifer L.’s requested modifications
fundamentally altered the services provided by DSS.
C. DSS, Consistent with the Policy Reflected in N.S. SSL § 384-b, Provided Jennifer L.
with Meaningful Access to Caleb.
DSS provided Jennifer L. meaningful access to Caleb by satisfying the requirements of
N.S. SSL § 384-b. Under the ADA, the public entity must make “reasonable modifications” to
allow disabled individuals to receive the services provided by a public entity. See 42 U.S.C. §
12132; see also 28 C.F.R. § 35.130(b)(7). A public entity must provide qualified disabled
individuals with “meaningful access” to the benefits offered by the public entity. Alexander v.
Choate, 469 U.S. 287, 301 (1985). “Meaningful access” does not mean that a public entity is
required to “employ any and all means to make” services accessible. Tennessee v. Lane, 541 U.S.
509, 531 (2004).
16
New Scotland law provides that “every reasonable effort” must be made “to assist,
develop and encourage a meaningful relationship between the parent(s) and child . . . .” N.S. SSL
§ 384-b(3). According to the statute, this “reasonable effort” can be satisfied in numerous ways,
including but not limited to: “(a) creating a rehabilitative services plan with appropriate services
to enable the child and his or her parent(s) to successfully reunite; or (b) making suitable
visitation arrangements so the parent(s) can visit with the child; or (c) informing the parent(s) at
appropriate intervals of the child’s progress, development and health.” Id. (emphasis added).
The Indiana Court of Appeals in Stone v. Daviess County Division of Children and
Family Services concluded that the disabled parents had been provided sufficient services to help
them overcome their parenting deficiencies. Stone, 656 N.E.2d at 830. Due to the mother’s
cognitive limitations, she was provided charts and pictures to understand the children’s
nutritional needs. Id. at 831. Also, due to the parents’ inability to read and understand written
information, instructors showed videos and read materials to the parents during parenting classes.
Id. Similarly, the Washington Court of Appeals in In re Welfare of A.J.R. rejected an ADA claim
that the state had not offered sufficient services that addressed the parents’ special needs as
developmentally disabled parents. In re Welfare of A.J.R., 896 P.2d at 1302. The state had left
pictorial instructions on the refrigerator, used visual rather than literary aids to teach the parents
in a parenting class, and provided daily lessons on basic hygiene, cooking, and child care. Id.
The court found that the state had provided services that were modified to accommodate the
parents’ disabilities. Id.
In the case at bar, Jennifer L.’s difficulties are not easily remedied through charts and
instructions. DSS did provide Jennifer L. meaningful access to a rehabilitative services plan by
conducting an in-home study in order to determine whether a reunification plan was possible. (R.
17
12). However, DSS findings demonstrated that Jennifer L. was physically unable to adequately
care for five-year old Caleb at that time. Id. Further, the findings showed that Jennifer L.’s
condition would continue to deteriorate, thus indicating that Jennifer L. would be unable to care
for Caleb in the future. Id. It was only after making that determination that DSS decided to
explore other avenues to encourage a relationship between Jennifer L. and Caleb. (R. 13).
Although DSS declined to provide two full-time caregivers, creating such a reunification
plan was not the only manner to fulfill the statute’s mandate. New Scotland law also states that
DSS may “assist, develop and encourage a meaningful relationship” between parent and child by
“making suitable visitation arrangements” or “informing the parent[s] at appropriate intervals of
the child’s progress, development and health.” N.S. SSL § 384-b(3). DSS has provided Jennifer
L. with meaningful access to DSS services by arranging visitation between Jennifer L. and
Caleb. Caleb’s foster care family, the Smiths, bring Caleb to visit Jennifer L. twice a week and
every weekend. (R. 11). Jennifer L. not only has a suitable visitation arrangement, but also the
opportunity to gauge Caleb’s progress, development, and health multiple times a week.
Moreover, consistent with the policy reflected in N.S. SSL § 384-b, DSS prioritized the
needs of Caleb above the needs of Jennifer L. when determining that the requested reunifications
service could not be provided. Although parents have “a fundamental liberty and privacy interest
in the care and custody of their children,” the State has a duty to protect the child when parental
actions conflict with the mental or physical health of the child. In re J.B.S., 863 P.2d 1344, 1348
(Wash. 1993); In re Sumey, 621 P.2d 108, 110 (Wash. 1980). There is “a minimum level of care"
every child has a right to, “regardless of the special needs or limited abilities of its parents.”
Stone, 656 N.E.2d at 831.
18
In this case, DSS’s in-home study and findings clearly indicated that Jennifer L. would be
unable to physically care for Caleb. The requested modification, two full-time caregivers, would
not allow Jennifer L. to take on more parental responsibilities, but instead would introduce two
new parents into Caleb’s life. Since Jennifer L.’s prognosis indicates that she only has six
months left to live, introducing two co-parents at this point means Caleb will lose Jennifer L. and
the two new co-parents when he is returned to his foster care family in six months. (R. 13). At
this point in time, Caleb has already connected with the Smiths and their son, Riley, and Caleb is
also able to visit with Jennifer L. numerous times each week. (R. 9). DSS appropriately chose to
prioritize Caleb’s needs in denying Jennifer L.’s requested reunification plan. Therefore, this
Court should reverse the Third Appellate Division and find that DSS acted consistently with both
the ADA and the N.S. SSL § 384-b by declining Jennifer L.’s requested modification because
two full-time caregivers is an unreasonable modification that fundamentally alters the services
currently provided by DSS.
II. THE THIRD APPELLATE DIVISION ERRONEOUSLY CONCLUDED THAT IT IS
IN CALEB’S BEST INTEREST TO BE PLACED WITH JENNIFER L., WHEN HE
IS CURRENTLY LIVING A “NORMAL FAMILY LIFE” WITH HIS FOSTER
CARE FAMILY.
Regardless of whether the State is required to provide Jennifer L.’s demanded
modification, this Court should still determine Caleb’s placement based on his best interest. The
New Scotland legislature explicitly states that “it is consistent with the health and safety of the
child . . . to grow up with a normal family life in a permanent home and that such circumstances
offer the best opportunity for the child to develop and thrive.” N.S. SSL §384-b(1)(a)(i). It is in
Caleb’s best interest to remain with his foster care family because that provides the best
opportunity for a “normal family life,” which is why this Court should reverse the Third
Appellate Division and reinstate the decision of the New Scotland Family Court.
19
In New Scotland, parental rights may be terminated when “the parent(s) is unable –due to
his or her mental or medical illness – to presently and for the foreseeable future adequately care
for the child.” N.S. SSL § 384-b(2)(b). DSS successfully moved to terminate Jennifer L.’s
parental rights after the Family Court determined that Jennifer L. is unable, due to her medical
illness, to presently and for the foreseeable future adequately care for Caleb. (R. 10-11). New
Scotland also requires DSS to “make every reasonable effort to assist, develop, and encourage a
meaningful relationship between the parent(s) and the child, even after that parent’s rights have
been terminated.” N.S. SSL § 384-b(3).
However, when a parent’s rights are terminated, this termination “severs permanently the
legal ties between parent and child.” Fish v. Fish, 939 A.2d 1040, 1094 (Conn. 2008). Since the
parent’s rights are already terminated, there is no longer a presumption in favor of the natural
parent obtaining custody. See In re R.L.S., 820 N.E.2d 1201, 1205 (Ill. App. Ct. 2004) aff'd, 844
N.E.2d 22 (Ill. 2006) (interpreting an Illinois statute to mean that there is no parental preference
when a parent has been deemed unfit and the child is being placed with another family). Instead
of the parental preference, courts use the best interests analysis to determine proper placement of
a child. Bennett v. Jeffreys, 356 N.E.2d 277, 283 (N.Y. 1976).
Additionally, courts consider the child’s best interest to be of paramount concern in
determining the child’s placement. Clapper v. Harvey, 716 A.2d 1271, 1274 (Pa. Super. Ct.
1998). In order to protect the child, courts have created a factor-based best interest analysis. In re
Joseph W., 79 A.3d 155, 189 (Conn. Super. Ct. 2013). The best interest analysis is designed to
give courts the discretion to determine the weight of each factor on a case-by-case basis. In re
Adoption of Tachick, 210 N.W.2d 865, 873 (Wis. 1973). The relevant best interest factors
include: the stability of the home or proposed placement; the current and future physical and
20
emotional needs of the child; and the parental abilities of the individuals seeking custody. Holley
v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
Trial court decisions regarding the best interests of a child are reviewed for abuse of
discretion because of the nature and flexibility of the analysis. Davis v. Flickinger, 674 N.E.2d
1159, 1162 (Ohio 1997). The trial court abuses its discretion only when its review of the best
interests of the child is “scant or incomplete.” Pietrzak v. Schroeder, 759 N.W.2d 734, 743 (S.D.
2009). Further, if a trial court’s judgment is “supported by some competent, credible evidence”
the decision should be affirmed. C.F. Morris Co. v. Foley Constr., 376 N.E.2d 578 (Ohio 1978).
Upon review, deference is given to the trial court’s findings on the credibility of child
welfare professionals. In re Davonta V., 940 A.2d 733, 737 (Conn. 2008). The Connecticut
Supreme Court observed that "[t]he testimony of [child welfare] professionals is given great
weight . . . and the trial court is privileged to adopt whatever testimony it reasonably believes to
be credible.” Id. In this case, the Family Court received the in-home study of the DSS social
worker, and in light of what that report stated, found that it was in Caleb’s best interest to remain
with his foster care family. (R. 12-13, 17). It was not an abuse of discretion for the Family Court
to consider the social worker’s findings in its best interest analysis.
This Court should reverse the Third Appellate Division’s holding because the New
Scotland Family Court did not abuse its discretion by finding it is in Caleb’s best interest to
remain with his foster care family and continue visitation with Jennifer L. for the following three
reasons. First, stability is a significant factor in the best interests analysis because continuity is
important in a child’s life, and allowing Caleb to remain with his foster care family is the best
way to ensure stability in his life. Second, Caleb’s physical and emotional needs are best
protected by remaining with his foster care family because Jennifer L. is unable to perform even
21
the minimal parental responsibilities. Third, allowing Caleb to remain in his permanent home
with the Smiths will offer Caleb the best opportunity to develop and thrive in a “normal family,”
which is consistent with the legislature’s intent and the state’s interest in the welfare of children.
Therefore, this Court should hold that the Family Court did not abuse its discretion and reinstate
its decision that it is in Caleb’s best interest to remain with his foster care family and maintain
visitation with Jennifer L.
A. Stability is Heavily Weighted in the Best Interests Analysis Because of its
Importance in a Child’s Life, and Remaining with His Foster Care Family is the
Best Way to Maintain Stability in Caleb’s Life.
Stability in a child’s life is important and courts therefore emphasize that factor when
looking at the best interests of a child. Considering the potential for disruption to the child’s life
and the stability of the custodian’s environment is imperative to the best interests analysis when
determining whether a custodial change is appropriate. Meredith v. Meredith, 521 So. 2d 793,
796 (La. Ct. App. 1988). In this case, Caleb’s stability is best served by remaining with his foster
care family and continuing visitation with Jennifer L.
The best interest factors are generally balanced based on the factual circumstances of the
case; however, courts have weighed the stability of the child’s life heavily. Fanning v. Fanning,
717 P.2d 346, 353 (Wyo. 1986); see also In re K.C., 219 S.W.3d 924 (Tex. Ct. App. 2007).
When considering stability, courts specifically consider such things as “the relationship and
interaction of the child with the parents, the child’s adjustment to home, school, and community,
and continuity. Roth v. Haag, 834 N.W.2d 337, 341 (S.D. 2013). Stability is an important
consideration because children need “supportive, safe, predictable, structured, stable and
nurturing caregivers.” In re Joseph W., 79 A.3d at 189. The New Scotland legislature recognized
the importance of stability when it explicitly stated its desire “for the child to grow up with a
22
normal family life in a permanent home and that such circumstances offer the best opportunity
for the child to develop and thrive.” N.S. SSL § 384-b (1) (emphasis added).
Additionally, displacement of a child who has been in the custody of a nonparent may
cause psychological trauma; therefore, a child should only be moved if the “advantages of
changing custody outweigh the essential principle of continued and stable custody of children.”
Bennett, 356 N.E.2d at 283-284. Courts are hesitant to remove a child from a home where they
are thriving in a stable environment because children need continuity and some assurance of
solidity in their parental relationships. In re Hands, 553 A.2d 1171, 1178 (Del. 1989).
Courts are especially leery in changing custody arrangements when the child has bonded
with a foster care family for a long period of time. Bennett, 356 N.E.2d at 284. Courts have
recognized thirteen months as being a sufficient period of time to indicate that the child has
bonded with the custodian nonparent, and that removing the child is not in the child’s best
interests. See, e.g., In re Marriage of Levin, 102 Cal. App. 3d 981(Cal. Ct. App. 1980). In fact,
Colorado and Texas have statutes that give a nonparent standing to seek custody of a child that
they have taken care of for over six months. See Colo. Rev. Stat. § 14-10-123(b) (2012); see also
Tex. Family Code Ann. § 102.003 (2011).
The Superior Court of Connecticut found that, where parents were unable to develop
“well-adjusted, stable and independent lives of their own” because of personality disorders, they
could not provide a stable environment for their children, and therefore should not have custody.
In re Joseph W. Jr., 79 A.3d at 190. In that case, the mother was diagnosed with narcolepsy,
which interfered with her ability to maintain alertness, retain employment, and drive her children
to school. Id. at 164. The court found that the mother was neither able to provide a stable living
environment for herself nor her children, so termination of her parental rights was proper. Id. at
23
190. In another Connecticut case, In re Eden F. the Supreme Court of Connecticut found stability
where the child had a prospect of a permanent placement with his then-current foster care family
and the other option was an uncertain situation with the child’s natural parents. In re Eden F.,
741 A.2d 873 (Conn. 1999).
In this case, Jennifer L.’s ALS prevents her from being able to parent Caleb or take care
of herself independently. Similar to the parents in In re Joseph W., this prevents Jennifer L. from
providing stability for Caleb while he is in her home. Since Jennifer L.’s diagnosis, “the family
had to move from the only home Caleb had ever known,” forcing Caleb to transfer schools and
move away from his friends. (R. 9). Further, when she was hospitalized for her hip injury, Caleb
was once again relocated to a different environment. (R. 10). As Jennifer L.’s condition worsens,
she will lose the ability to move, speak, swallow and breathe. (R. 12). Living with a mother
whose condition is deteriorating in this way would disrupt the continuity of Caleb’s life. Jennifer
L. has only approximately six months to live according to her treating physician. (R. 13). Placing
Caleb with Jennifer L. will disrupt the continuity in Caleb’s life twice, first by removing him
from the Smiths and again when Jennifer L. passes away.
Caleb has resided with the Smith family for over a year, so separating him from the
Smiths to place him with his mother will considerably disrupt his stability. (See R. 10). Caleb has
developed a relationship with his foster parents, and has “gotten along remarkably well” with
Riley Smith, their seven year old son. (R. 10). Removing Caleb from his foster care family will
separate him from his school, his soccer team, his friends, and Riley, “the big brother he never
had.” Id. Remaining in the stable home the Smiths have created is in Caleb’s best interest.
24
Stability is crucial when determining a child’s placement. To maintain stability in Caleb’s
life, and therefore best protect his well-being, he should remain with the Smith family. The New
Scotland Family Court did not abuse its discretion when it concluded that to be true.
B. Caleb’s Physical and Emotional Needs are Best Provided for by Remaining with His
Foster Care Family Under the Best Interests Analysis Because the Physical
Manifestations of Jennifer L.’s Disease Prevent Her from Meeting Caleb’s Needs.
Jennifer L. cannot provide for Caleb’s physical and emotional needs at this time, or at
any time in the future, without the assistance of “two full-time caregivers who will essentially
take care of Caleb’s needs.” (R. 14-15). Courts recognize that a child’s physical and emotional
needs are a factor in determining the best interest of a child. Holley, 544 S.W.2d at 371-72; see
also Adoption of Michael H., 898 P.2d 891, 909-910 (Cal. 1995). Another significant factor that
courts consistently look at is the ability of a custodian to parent a child. Holley, 544 S.W.2d at
371-2. This Court should reverse the Third Appellate Division, and reinstate the Family Court’s
holding that it is in the best interest of Caleb’s physical and emotional needs, now and in the
future, to remain with the Smiths. The Smiths have and will provide for Caleb’s physical and
emotional needs, whereas Jennifer L. is unable to do so.
New Scotland law allows the State to terminate parental rights of a parent who is
“unable—due to his or her mental or medical illness—to presently and for the foreseeable future
adequately care for the child.” N.S. SSL §384-b(2)(b). It is therefore appropriate to consider a
parent’s physical condition when analyzing the best interests. See Arneson v. Arneson, 670
N.W.2d 904, 912 (S.D. 2003) (citing In re Marriage of Carney, 598 P.2d 36, 42 (Cal. 1979))
(recognizing that courts are permitted to consider the fact that a terminal or physical illness may
prevent a parent from parenting when conducting a best interests analysis). The New Scotland
statute is consistent with the statutes of other states. The statutes of Arizona, Colorado, and
Illinois require courts to consider the parent’s physical condition when making placement
25
decisions. See Ariz. Rev. Stat. Ann. § 25-403(A)(5) (2013); see also Colo. Rev. Stat. § 14-10-
124(1.5)(a)(V) (2014); see also 750 Ill. Comp. Stat. § 5/602(a)(5) (2010). Additionally, when a
parent’s health actively interferes in her parenting, to the child's detriment, it is in the child’s best
interest to be placed outside of the home. In re Rasheeda K. v Tawana M., 981 N.Y.S.2d 638,
638 (N.Y. Fam. Ct. 2013).
When evaluating best interests, beyond the impact of parent’s physical condition, courts
consider the child’s needs. Garska v. McCoy, 278 S.E.2d 357, 360 (W. Va. 1981). For example,
many courts use a primary caregiver analysis, which sets out factors that reflect how a parent
meets a child’s physical and emotional needs. Id. Those factors include the following:
(1) preparing and planning of meals; (2) bathing, grooming and dressing; (3)
purchasing, cleaning, and care of clothes; (4) medical care, including nursing and
trips to physicians; (5) arranging for social interaction among peers after school,
i.e., transporting to friends' houses or, for example, to girl or boy scout meetings;
(6) arranging alternative care, i.e., babysitting, day-care, etc.; (7) putting child to
bed at night, attending to child in middle of the night, waking child in the
morning; (8) disciplining, i.e., teaching general manners and toilet training; (9)
educating, i.e., religious, cultural, social, etc.; and (10) teaching elementary skills,
i.e., reading, writing and arithmetic.
Id.
Additionally, when evaluating a child’s needs, the age of the child is a significant factor
in determining their specific needs. A child, who is approaching “middle childhood” and has
started school, is facing a critical time of physical and emotional development. Positive
Parenting Tips for Healthy Child Development: Middle Childhood (6-8 years of age), Ctr. for
Disease Control and Prevention, U.S. Dep’t of Health and Human Servs.,
http://www.cdc.gov/ncbddd/childdevelopment/positiveparenting/pdfs/middlechildhood6-8.pdf
(last updated Nov. 25, 2014). Jennifer L. is unable to provide for Caleb’s physical and emotional
needs during this crucial time.
26
1. Jennifer L. is Unable to Provide for Caleb’s Physical Needs at this Time and at
any Time in the Future.
The Colorado Court of Appeals held that the trial court properly placed children with
social services because the record reflected that the mother suffered from a disease and that the
physical manifestations of her illness contributed to “an environment which was injurious to the
welfare of each child.” In re B.W., 626 P.2d 742 (Colo. App. 1981). In that case, the mother
suffered from Huntington’s disease, which is a degenerative brain disorder and a terminal illness.
See Id. at 744 (discussing the physical and psychological manifestations of Huntington’s disease,
and its effect on a child’s environment); see also What is Huntington’s Disease?, Huntington’s
Disease Soc’y of Am., http://www.hdsa.org/about/our-mission/what-is-hd.html (last visited Jan.
9, 2015) (describing symptoms associated with Huntington’s disease). Due to the physical
manifestations of her illness, the mother was incapable of caring for her children, such as
providing the necessary care to maintain the child’s health, guidance, or well-being. In re B.W.,
626 P.2d at 744.
Similarly, in the case at hand, although Jennifer L. is cognitively able to parent, the
physical manifestations of her ALS prevent her from physically being able to do so. (See R. 13).
The in-home study established that Jennifer L. is unable to care for herself, and unable to bathe
Caleb or supervise him outside. (R. 12). It also stated that “between the time the in-home study
was initiated [and] when it was completed, Jennifer ha[d] lost the use of her right hand and arm.”
Id. Presently, Jennifer L. is confined to a wheelchair and cannot move more than four steps
without assistance by a nurse, which makes her unable to respond to Caleb in time of sickness or
emergency. (R. 10). Unfortunately, Jennifer L. has only six months to live and by the end of her
life she will have been on a breathing machine, she will have lost the use of all extremities, and
will have lost the ability to control her muscles or even open her eyes. (R. 12-13). “Jennifer L.’s
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inability now and in the future to move freely prevents her from being able to perform physical
tasks in order to take care of Caleb’s needs, such as bathing, grooming, dressing and preparing
meals.
Instead of Jennifer L. providing for Caleb’s physical needs, two full-time caregivers will
be tasked with caring for him if he is placed with Jennifer L. (R. 11). Also at some point,
“Jennifer will not be able to speak,” so she will not even be able to provide verbal guidance to
Caleb or his caregivers. (R. 12). Because Jennifer L. is unable to provide for Caleb’s physical
needs, Caleb should remain with the Smiths and continue visitation with Jennifer L.
2. Jennifer L. is Unable to Provide for Caleb’s Emotional Needs Now and in the
Future.
The Family Court correctly determined that Caleb’s emotional needs would not be
fulfilled by placing Caleb with Jennifer L. In order to provide for a child’s emotional needs, a
parent has to be able to “on a continuing, day to day basis, through interaction, companionship,
interplay and mutuality, fulfill[] the child's psychological needs for [a] parent, as well as the
child's physical needs.” Joseph Goldstein et al., Before the Best Interests of the Child 31 (1st ed.
1973). The parent also needs to ensure that a child is socializing, by playing with other children,
to encourage emotional development. Positive Parenting Tips for Healthy Child Development:
Preschoolers (3-5 years of age), Ctr. for Disease Control and Prevention, U.S. Dep’t of Health
and Human Servs.,
http://www.cdc.gov/ncbddd/childdevelopment/positiveparenting/pdfs/preschoolers3-5.pdf (last
updated Nov. 25, 2014). Moreover, for purposes of a best interests analysis, the emotional bonds
with caregivers, other than the parent, should be considered when the parents’ rights have been
terminated. In re Michael B., 604 N.E.2d 122, 124 (N.Y. 1992).
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In this case, Caleb is a five-year old whose emotional needs should be considered by this
Court. Currently, Jennifer L. is unable to supervise Caleb outside of the apartment which would
prevent him from socializing with children his age. (R. 12). In the near future, Jennifer L. will
lose her motor skills completely and her ability to communicate. (R. 13). This will prevent her
from interacting with Caleb and providing him companionship.
Caleb’s emotional well-being and growth would be better served by remaining with the
Smiths, where he has been for the past year, because the Smiths can provide for Caleb’s
emotional needs. (R. 10). Mr. and Mrs. Smith “look out for [Caleb’s] general well-being. Id.
Caleb is back at his old school and back in his old neighborhood, but he now plays soccer and
has a “big brother” to look up to. Id. Caleb is thriving with the Smiths, which suggests that his
emotional needs are also well cared for in their home. Id.
The Third Appellate Division suggested that the Family Court chose “what [it] would
want Caleb to experience as a five-year-old.” (R. 20). Rather, the Family Court instead made its
placement decision by doing as the law requires, considering the physical and emotional needs of
the child. Holley, 544 S.W.2d at 371-72. Both Caleb’s physical and emotional needs are best
served by remaining with the Smiths because Jennifer L.’s physical condition inhibits her from
being able to provide for Caleb. For the foregoing reason, the Third Appellate Division’s
decision should be reversed, and the Family Court’s decision reinstated.
C. Allowing Caleb to Remain with His Foster Care Family Will Offer Him the Best
Opportunity to Develop and Thrive in a “Normal Family Life,” Consistent with the
Legislature’s Intent and the State’s Interest in the Welfare of Children.
This Court should hold that Caleb is to remain with the Smiths because this result is not
only consistent with legislative intent, but also sustains the state’s compelling interest in
protecting the health and emotional welfare of Caleb. While it has been recognized that a parent
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has a fundamental right to make decisions regarding the custody, care and control of a child,
Stanley v. Illinois, 405 U.S. 645, 651 (1972), when the parent is no longer able to make decisions
that are in the best interests of the minor child, the State has an obligation to step in as parens
patriae and make decisions that protect the health and welfare of the child. Hiller v. Fausey, 904
A.2d 875, 894 (Penn. 2006). The state’s compelling interest is grounded in the child’s
fundamental right to have the child’s best interest be the primary concern. Hiller, 909 A.2d at
879-880. The state’s goal is to provide the child with a permanent home. Santosky II v. Kramer,
455 U.S. 745,766 (1982); see also N.S. SSL § 384-b(1)(a)(i).
The New Scotland Social Services Law, which is controlling in this case, is consistent
with these concepts. The New Scotland legislature stated, “that the health and safety of the child
is of paramount importance.” N.S. SSL § 384-b(1)(a). In regards to the child, the statute provides
that the goal is to find a permanent home and the “best opportunity for the child to develop and
thrive.” Id. at§384-b(1)(a)(i).
The Third Appellate Decision failed to place the emphasis on Caleb, and instead focused
the impact on Jennifer L. The court stated that Jennifer L. will not get to “see Caleb go to prom,
graduate from high school, go to college, start his career and even marry someday and start his
own family,” which is true no matter where Caleb lives. However, Jennifer L. missing out on
those future events does not justify placing Caleb with Jennifer L. when it is not in his best
interest to do so. When a parent, due to his or her mental or medical illness, is unable to care for
their child, the state is obligated to step in and protect the interest of the helpless minor child.
Jennifer L.’s rights are further subordinated to the state’s interest in protecting Caleb’s welfare
because Jennifer L.’s parental rights have been terminated. Jennifer L. stands in no better
position than any other interested third party.
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Moreover, if Caleb is sent to live with Jennifer L., “two full-time caregivers [] will
essentially take care of Caleb’s needs,” not Jennifer L. (R. 15). Caleb will go from a happy and
active young boy that plays soccer, lives in the neighborhood that he grew up in, and in the
school that he has always been in, to living with a terminally ill parent who is unable to provide
for his needs. Caleb will lose the connection that he has with friends and the Smiths, until
Jennifer L. passes and Caleb’s entire life is again flipped on its end.
If this Court reinstates the Family Court’s decision, Caleb will still continue visitation
twice a week and every weekend so that he can maintain his relationship with Jennifer L., but be
spared the agony of watching Jennifer L. suffer and die before his eyes. Visitation will allow
Caleb to create memories with his mother, to continue the relationship with his mother, but also
allow him the stability of remaining with the Smiths. Therefore, this Court should reverse the
decision of the Third Appellate Division because it is in Caleb’s best interest to remain with his
foster care family and continue visitation with Jennifer L., which is consistent with the
legislature’s intent and the state’s interest in Caleb’s welfare.
CONCLUSION
For the foregoing reasons the Respondent-Appellant respectfully requests that this Court
reverse the Third Appellate Division’s decision and reinstate the Family Court’s decision that
DSS did not violate the ADA when it declined to provide two full time caregivers to Jennifer L.
and it is in Caleb’s best interest to remain with his foster care family.
Respectfully Submitted,
/s/
Team No. 653
Counsel for the Respondent-Appellant