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 PETITIONER-APPELLEE, JENNIFER L.

COUNSEL FOR PETITIONER-APPELLEE, TEAM 513

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................................................................................... iv

QUESTIONS PRESENTED .........................................................................................................1

STATEMENT OF THE CASE .....................................................................................................1

SUMMARY OF THE ARGUMENT ...........................................................................................4

ARGUMENT ..................................................................................................................................5

I. DSS VIOLATED THE ADA BECAUSE JENNIFER SATISFIES THE QUALIFIED INDIVIDUAL CRITERIA AND WAS DENIED REASONABLE ACCOMMODATIONS FOR SERVICES BASED ON HER DISABILITY. .....................................................................................................................5 A. Jennifer meets the qualified individual criteria because she suffers from a

disability and meets the essential eligibility requirements to receive services from DSS. .......................................................................................................6 1. Jennifer is suffering from a disability because ALS limits several

major life activities. ................................................................................................6

2. Jennifer qualifies for a successful reunification because she meets the essential eligibility requirements under the Statute. ..........................................7

B. By denying Jennifer services, DSS failed to make reasonable

accommodations that do not alter the nature of DSS nor create an undue burden. ..........................................................................................................................8 1. DSS denied its services, programs, and activities to Jennifer by not

providing a reunification plan through rehabilitative services. ........................9

2. Jennifer’s requested reunification plan neither alters the nature of the program nor imposes an undue burden on DSS. ..............................................11

a. DSS failed to show how providing Jennifer with a reunification plan

fundamentally alters the nature of the program. ...........................................12

b. DSS failed to show how providing Jennifer with a reunification plan creates an undue burden. ...............................................................................14

C. DSS discriminated against Jennifer because it denied services based on

her physical disability. ...............................................................................................16

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II. IT IS IN CALEB’S BEST INTEREST TO REUNITE WITH HIS MOTHER BECAUSE JENNIFER IS ABLE TO CARE FOR HIS NEEDS, MAINTAIN THEIR FAMILIAL RELATIONSHIP, AND SUCCEED AS A FIT PARENT. ..........................................................................................................................18 A. Jennifer is able to care for Caleb’s needs, and any emotional or physical

dangers to Caleb are minimal. ..................................................................................19 1. Jennifer is able to care for Caleb’s needs because she is emotionally

supportive, and her physical disability does not prevent Caleb from being physically active. ........................................................................................20

2. Jennifer’s ability to be a loving, nurturing parent substantially outweighs any potential emotional or physical dangers to Caleb. ..................22

B. Because Jennifer is Caleb’s natural parent, she is able to provide and

maintain the only familial relationship Caleb has ever known. ............................23

1. Caleb enjoys spending time with his mother because she provides a level of comfort and security that he has always known. .................................23

2. Jennifer has the support of assistance programs that allow her to

maintain a loving relationship and provide for her son. ..................................24

3. Caleb needs this remaining time with his mother to strengthen their emotional bond and create the memories he will carry with him in the future. ....................................................................................................................25

C. Jennifer is a fit parent because she can provide guidance and a stable

home, and she has not acted with parental misconduct through an act or omission. ......................................................................................................................26

1. Jennifer has the ability to parent Caleb with the use of domestic help

because she provides guidance through a positive, emotionally supportive relationship with her son. .................................................................26

2. Jennifer is a fit parent because she provides a stable environment

through the security of the love and attention she gives to Caleb. ..................28

3. There are no acts or omissions of abuse, abandonment, or neglect by Jennifer because she has not acted with parental misconduct. .......................29

CONCLUSION ............................................................................................................................30

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TABLE OF AUTHORITIES

Cases Ability Ctr. of Greater Toledo v. City of Sandusky, 133 F. Supp. 2d 589 (N.D. Ohio 2001) ............................................................................. 16 Alexander v. Choate, 469 U.S. 287 (1985) .................................................................................................. 8, 9, 11 AP ex rel. Peterson v. Anoka-Hennepin Indep. Sch. Dist. No. 11, 538 F. Supp. 2d 1125 (D. Minn. 2008) ............................................................................. 14 Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131 (2d Cir. 1995).................................................................................................. 9 Bragdon v. Abbott, 524 U.S. 624 (1998) ............................................................................................................ 6 Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996) ...................................................................................... 12, 16 Disabled in Action v. Bd. of Elections in the City of N.Y., 752 F.3d 189 (2d Cir. 2014).................................................................................... 9, 10, 17 Easley v. Snider, 36 F.3d 297 (3d Cir. 1994)......................................................................................... passim Fortyune v. City of Lomita, 766 F.3d 1098 (9th Cir. 2014) ............................................................................................ 3 Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998) ............................................................................................ 14 Hatz v. Hatz (“Hatz I”), 455 N.Y.S.2d 535 (Fam. Ct. 1982), aff’d, 468 N.Y.S.2d 943 .................................... 20, 21 Hatz v. Hatz (“Hatz II”), 468 N.Y.S.2d 943 (App. Div. 1983) ................................................................................. 19 Haynes v. Haynes, 286 N.W.2d 108 (Neb. 1979) ............................................................................................ 24 Heard v. Bauman,

443 S.W.2d 715 (Tex. 1969) ............................................................................................. 28

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Heather K. v. City of Mallard, Iowa, 946 F.Supp. 1373 (N.D. Iowa 1996) ................................................................................. 17 Henrietta D. v. Giuliani, 119 F. Supp. 2d 181 (E.D.N.Y. 2000) .............................................................................. 16 Herrera v. Herrera, 409 S.W.2d 395 (Tex. 1966) ............................................................................................. 23 Herschaft v. N.Y. Bd. of Elections, No. 00 CV 2748, 2001 WL 940923 (E.D.N.Y. Aug. 13, 2001) ........................... 12, 13, 16 Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) ................................................................................. 18, 19, 22 Huff v. Keely, 672 N.Y.S.2d 488 (App. Div. 1998) ................................................................................... 3 In re A.L.,

No. 02-0333, 2002 WL 700940 (Iowa Ct. App. Apr. 24, 2002) ....................................... 18 In re Chance Jahmel B., 723 N.Y.S.2d 634 (Fam. Ct. 2001) ................................................................................... 16 In re Coop, 531 N.Y.S.2d 449 (Fam. Ct. 1988) ................................................................................... 15 In re J.L.W., 570 N.W.2d 778 (Iowa Ct. App. 1997) ............................................................................. 18 In re Marriage of Carney, 598 P.2d 36 (Cal. 1979) ............................................................................................. passim In re R.D.H., No. 12-03-00390-CV, 2005 WL 1000617 (Tex. Ct. App. Apr. 29, 2005) ........... 22, 29, 30 In re W.W. Children, 736 N.Y.S.2d 567 (Fam. Ct. 2001) ................................................................................... 27 In re Waites, No. 2012-CT-00884-SCT, 2014 WL 7084766 (Miss. Dec. 11, 2014) ............................. 28 In the Interest of C.M., 526 N.W.2d 562 (Iowa Ct. App. 1994) ...................................................................... passim

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J.T. v. Ark. Dep’t of Human Servs., 947 S.W.2d 761 (Ark. 1997) ............................................................................... 6, 9, 10, 16 Kimock v. Jones, 47 A.3d 850 (Pa. Super. Ct. 2012) ........................................................................ 22, 29, 30 Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013)............................................................................................ 5, 6 Matta v. Matta,

693 N.E.2d 1063 (Mass. App. Ct. 1998) .......................................................................... 25 McElwee v. Cnty. of Orange, 700 F.3d 635 (2d Cir. 2012)................................................................................................ 8 Nielsen v. Nielsen, 296 N.W.2d 483 (Neb. 1980) ...................................................................................... 18, 26 Olmstead v. L.C. ex rel. Zimring,

527 U.S. 581 (1999) ........................................................................................ 12, 13, 14, 15 Santosky v. Kramer, 455 U.S. 745 (1982) .................................................................................................... 18, 26 Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S. 273 (1987) ...................................................................................................... 8, 11 Staron v. McDonald’s Corp., 51 F.3d 353 (2d Cir. 1995).................................................................................... 11, 12, 17 State v. Deaton, 54 S.W. 901 (Tex. 1956) ................................................................................................... 23 Stone v. Daviess Cnty. Div. of Children & Family Servs., 656 N.E.2d 824 (Ind. Ct. App. 1995) .................................................................................. 9 Strathie v. Dep’t of Transp., 716 F.2d 227 (3d Cir. 1983).............................................................................................. 11 Tennessee v. Lane,

541 U.S. 509 (2004) .......................................................................................................... 14 Tylicki v. St. Onge, 297 F. App’x 65 (2d Cir. 2008) .......................................................................................... 6

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United States v. Georgia, 546 U.S. 151 (2006) .................................................................................................... 5, 6, 7 Warnick v. Couey, 359 So. 2d 801 (Ala. Civ. App. 1978) .............................................................................. 27 Wiley v. Spratlan, 543 S.W.2d 349 (Tex. 1976) ............................................................................................. 23 !Statutes 42 U.S.C. § 12101(a)(5) (2012) .................................................................................................... 16 42 U.S.C. § 12101(a)(7) (2012) ...................................................................................................... 5 42 U.S.C. § 12101(b)(1) (2012) .................................................................................................... 16 42 U.S.C. § 12102(1)(A) (2012) ..................................................................................................... 6 42 U.S.C. § 12102(2)(A) (2012) ..................................................................................................... 6 42 U.S.C. § 12131(2) (2012) ...................................................................................................... 6, 7 42 U.S.C. § 12132 (2012) ....................................................................................................... 5, 8, 9 42 U.S.C. § 12141(2) (2012) .......................................................................................................... 5 N.S. Soc. Servs. Law § 384-b(1)(a)(ii) ......................................................................................... 23 N.S. Soc. Servs. Law § 384-b(3) .................................................................................................... 9 N.S. Soc. Servs. Law § 384-b(3)(a) ...................................................................................... 5, 7, 10 N.Y. Soc. Servs. Law § 384-b (McKinney 2014) ................................................................... 25, 28 N.Y. Soc. Servs. Law § 398-a(2)(2-a) (McKinney 2014) ............................................................ 15 Tex. Fam. Code § 161.001 (2014) ................................................................................................ 29 Regulations !28 C.F.R. § 35.130(b)(7) (2012) ....................................................................................... 5, 7, 8, 12 !28 C.F.R. § 35.130(b)(8) (2012) ................................................................................................... 12 !28 C.F.R. § 41.53 (2012) .............................................................................................................. 14

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Other Authorities About Childhood Grief, National Alliance for Grieving Children (2013), https://www.childrengrieve.org/sites/default/files/About%20Childhood %20Grief-%202013.pdf .................................................................................................... 23 Albany Cnty. Dep’t of Soc. Servs., http://www.albanycounty.com/government/

departments/departmentofsocialservices.aspx (last visited Jan. 10, 2015) ....................... 16 Ctrs. For Disease Control and Prevention, Parent Training Programs: Insight for Practitioners, 4-5 (2009), available at http://www.cdc.gov/ violenceprevention/pdf/parent_training_brief-a.pdf ................................................... 26, 27 H.R. Rep. No. 101-485(II) (1990), reprinted in 1990 U.S.C.C.A.N. 303 ...................................... 8 Linda Juszczak & Sally S. Cohen, Integrating Services to Improve Access and Outcomes for Children and Families, 2 Quinnipiac Health L.J. 33 (1998) ...................... 24

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QUESTIONS PRESENTED

I. Whether the State of New Scotland, Third Appellate Division, correctly determined that a

violation of the Americans with Disabilities Act occurred when the New Scotland County

Department of Social Services failed to provide Jennifer with rehabilitative services

specifically tailored to her needs in order to reunite Jennifer with her son, Caleb.

II. Whether the State of New Scotland, Third Appellate Division, correctly determined that

the best interests of Caleb are served by reuniting him with his terminally ill mother,

rather than remaining in foster care.

STATEMENT OF THE CASE

Caleb is a five-year-old boy who loves his mother unconditionally. R. at 9. Jennifer L.

(“Jennifer”), his mother, has always been his sole provider because Caleb’s father died in a tragic

motorcycle accident before Caleb was born. R at 8. Caleb and Jennifer have no other family. R.

at 8. Since Caleb’s birth, Jennifer has provided the best possible life by moving to a good school

district, working two jobs to support him, and spending quality time together. R. at 8.

Unfortunately, Jennifer was diagnosed with amyotrophic lateral sclerosis (“ALS”), thus,

it is of the utmost importance that she and Caleb have as much time together as possible. R. at 7,

11. Due to the nature of ALS, Jennifer is losing her physical functions and will continue to do so

until she can no longer move. R. at 7, 11, 13. Doctor Jones predicted Jennifer has

approximately six months left to live. R. at 13.

When Jennifer was first diagnosed with ALS, she made voiceover recordings of Caleb’s

favorite bedtime stories and her own favorite books for Caleb’s future enjoyment. R. at 8.

Jennifer also wrote letters for each of Caleb’s birthdays through the age of twenty-five, including

special memories from her own birthdays as well as photographs of Jennifer and Caleb together.

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R. at 8-9. Because Jennifer knew she would not have the opportunity to tell Caleb everything

she wanted him to know, she typed letters about their family, detailing stories of Caleb’s

grandparents and father. R. at 8. Jennifer did all of this to ensure Caleb would never forget his

family. R. at 9.

The progression of Jennifer’s disease made her unable to work and forced her to reach

out to the New Scotland County Department of Social Services (“DSS”) for assistance and

housing. R. at 9. The best housing DSS could provide was a second floor apartment in a Section

8 housing project. R. at 9. DSS also provided Jennifer with proper nutrition, medical assistance,

and nurses; Caleb received full-time daycare with transportation and meals, and a nurse prepared

his dinner and bought him easy open drinks. R. at 9.

As Jennifer’s motor functions worsened, her ability to walk became impaired, and she

fell down the stairs of the second floor apartment. R. at 10. She was admitted to a hospital with

a broken hip and later moved to a nursing home. R. at 10. Because it was unclear if Jennifer

would ever leave the nursing home, DSS placed Caleb in foster care and moved to terminate

Jennifer’s parental rights. R. at 10. Believing this was in Caleb’s best interest at the time,

Jennifer did not contest the termination, and the Family Court judge ordered for a termination of

her rights and for visitation twice a week and on weekends. R. at 11, 14.

DSS placed Caleb with the Smith family who have a son Caleb’s age. R. at 10.

Although he is happy with the Smiths, Caleb is also happy when he spends time with his mother

and treasures their moments together. R. at 11. Against all odds, Jennifer was released from the

nursing home. R. at 11. She went to the Smith’s house to pick up Caleb, but Mrs. Smith

informed Jennifer that her rights had been terminated, and she could not take Caleb without first

contacting DSS. R. at 11.

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In an attempt to reunite with her only son, Jennifer immediately requested two full-time

caregivers through a reunification plan. R. at 11. She believes that visitation is not in Caleb’s

best interest because the limited time together interferes with their remaining opportunities to

bond. R. at 11. When Jennifer and Caleb have time together, Caleb reads books with Jennifer

and looks to her for approval and comfort. R. at 11. DSS sent a social worker to determine if a

successful reunification plan could be created for Jennifer and Caleb. R. at 12. Although the

social worker noted Jennifer’s physical difficulties in caring for Caleb, she also found that

Jennifer is a good mom who is mentally capable and has made every unselfish decision for her

son. R. at 12-13. However, the reunification plan was denied, but the social worker’s findings

are in no way binding on this court. R. at 13.

Because DSS denied all services to reunite Jennifer with her son, she now brings a claim

against DSS, pursuant to the New Scotland Social Services Law § 384-b (“the Statute”). R. at 7.

Jennifer alleges an Americans with Disabilities Act (“ADA”) violation for failure to provide

rehabilitative services and argues it is in Caleb’s best interest to live with her. R. at 7. In this

case, the State of New Scotland Family Court found no ADA violation and that Caleb should

remain with the foster family. R. at 17. Jennifer appealed to the Third Appellate Division,

which found that DSS violated the ADA, and custody should be awarded to Jennifer. R. at 22.

DSS now challenges the Third Appellate Division’s findings in the Court of Appeals, and this

Court has jurisdiction to hear this claim. R. at 3.

A lower court’s interpretation of a Title II discrimination claim under the ADA is

reviewed de novo. Fortyune v. City of Lomita, 766 F.3d 1098, 1101 (9th Cir. 2014).

Additionally, a court reviews de novo a child’s best interests when making a legal determination

with no facts in dispute. Huff v. Keely, 672 N.Y.S.2d 488, 489 (App. Div. 1998).

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SUMMARY OF THE ARGUMENT The Third Appellate Division properly found that DSS violated the ADA when it denied

Jennifer rehabilitative services through a reunification plan. As a qualified individual, Jennifer is

entitled to receive services because she suffers from ALS and meets the essential eligibility

requirements of the Statute. Because she can successfully reunite with Caleb, Jennifer meets the

criteria for reunification.

DSS failed to make reasonable accommodations by denying Jennifer the opportunity to

successfully reunite with her only son. DSS was unable to provide evidence showing that the

nature of a reunification plan would be fundamentally altered or that an undue burden would

result if Jennifer was provided with two full-time caregivers. Jennifer was denied these services

strictly based on her physical disability and not because she is unable to care for Caleb.

Therefore, DSS violated the ADA by failing to provide accommodations.

Additionally, the lower court properly determined that Caleb’s best interests are served

by reuniting mother and son. Jennifer is the best person to provide Caleb’s emotional support,

and her disability does not negatively impact Caleb’s physical activities. The primary purpose of

the Statute is to keep families together and by denying Jennifer the right to reunite with Caleb

this family will be torn apart. Caleb treasures the time he has with Jennifer, and because of the

multitude of programs available to assist families, Caleb and Jennifer are perfectly able to

resume their prior life together.

Through reunification, Caleb will have the opportunity to prepare for his mother’s

eventual passing and to strengthen the bond he will share with her forever. The guidance and

unconditional love that Jennifer is able to provide as a natural parent is irreplaceable and cannot

be mimicked by a foster family. Although Jennifer will eventually pass, the stability she

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currently provides Caleb is important to his future emotional well-being. Because Jennifer has

never acted with parental misconduct and has only ever acted unselfishly with Caleb’s best

interests in mind, mother and son should be reunited.

ARGUMENT

I. DSS VIOLATED THE ADA BECAUSE JENNIFER SATISFIES THE QUALIFIED INDIVIDUAL CRITERIA AND WAS DENIED REASONABLE ACCOMMODATIONS FOR SERVICES BASED ON HER DISABILITY.

DSS violated the ADA by discriminating against Jennifer by denying her rehabilitative

services based on her disability. A disabled individual shall not be refused the services of a

public entity, “or be subject to discrimination by any such entity.” United States v. Georgia, 546

U.S. 151, 153 (2006) (citing 42 U.S.C. § 12132 (2012)). The core purpose of the ADA is to

ensure the “equality of opportunity, full participation, independent living, and economic self-

sufficiency” to put disabled citizens on equal footing. 42 U.S.C. § 12101(a)(7) (2012).

Under Title II of the ADA, individuals must prove they: (1) are qualified individuals; (2)

excluded from the “services, programs, or activities” of the public entity; and (3) the exclusion

was due to discrimination based on disability. Mary Jo C. v. N.Y. State & Local Ret. Sys., 707

F.3d 144, 153 (2d Cir. 2013). A qualified individual with a disability is one who meets essential

eligibility requirements to receive services set by a statute. See 42 U.S.C. § 12141(2) (2012);

Georgia, 546 U.S. at 153-54. The only requirement at issue here is whether Jennifer can be

provided a successful reunification plan. N.S. Soc. Servs. Law § 384-b(3)(a). A public entity

must make reasonable accommodations1 through its services or participation in its programs. 28

C.F.R. § 35.130(b)(7) (2012); In the Interest of C.M., 526 N.W.2d 562, 566 (Iowa Ct. App.

1994). An ADA violation occurs when a public entity denies a qualified individual benefits

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!1 Although Title II uses the term reasonable modifications, courts use the terms “modification” and “accommodation” interchangeably. See, e.g., Easley v. Snider, 36 F.3d 297, 302 (3d Cir. 1994) (referring to both modifications and reasonable accommodations with respect to the state’s action).

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because of the individual’s disability. J.T. v. Ark. Dep’t of Human Servs., 947 S.W.2d 761, 767

(Ark. 1997). Jennifer was denied reasonable accommodations for services by DSS because of

her disability; therefore, DSS violated Title II of the ADA.

A. Jennifer meets the qualified individual criteria because she suffers from a disability and meets the essential eligibility requirements to receive services from DSS.

Jennifer is a qualified individual because she suffers from ALS and satisfies the essential

eligibility requirements for rehabilitation. To receive services, a qualified individual (1) is

limited in one or more major life activities due to a disability and (2) meets the essential

eligibility requirements of the program. Georgia, 546 U.S. at 153-54; see 42 U.S.C. § 12131(2)

(2012); Mary Jo C., 707 F.3d at 165. Because Jennifer has a disability and meets the essential

eligibility requirements, Jennifer is a qualified individual.

1. Jennifer is suffering from a disability because ALS limits several major life activities.

Due to the nature of ALS, Jennifer is physically disabled and limited in performing

regular tasks. An ADA disability is “a physical or mental impairment that substantially limits

one or more major life activities.” 42 U.S.C. § 12102(1)(A) (2012); Bragdon v. Abbott, 524 U.S.

624, 630 (1998). Examples of major life activities include caring for oneself, performing manual

tasks, walking, and standing. See 42 U.S.C. § 12102(2)(A) (2012). To show an individual is

disabled under the ADA, the evidence must prove a limitation of one or more major life

activities. Mary Jo C., 707 F.3d at 165. See also Tylicki v. St. Onge, 297 F. App’x 65, 67 (2d

Cir. 2008) (finding plaintiff did not allege facts to show how his mental condition was limiting

any major life activity). It is uncontested that Jennifer is disabled because she is confined to a

wheelchair, has limited speech, and requires assistance. These limitations on her major life

activities undeniably show that Jennifer suffers from a disability recognized by the ADA.

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2. Jennifer qualifies for a successful reunification because she meets the essential eligibility requirements under the Statute.

Because Jennifer has the ability to successfully reunite with her son, she meets the

essential eligibility requirements. A qualified individual is one who “with or without reasonable

modifications to rules, policies, or practices meets the essential eligibility requirements to receive

the services or to participate in programs provided by a public entity.” Georgia, 546 U.S. at 153-

54 (citing § 12131(2)). Although a statute may have several eligibility requirements listed, not

all are necessary for an individual to receive services. § 35.130(b)(7); Easley, 36 F.3d at 303. In

order for an individual to receive services, New Scotland requires a successful reunification

between a parent and child. N.S. SSL § 384-b(3)(a) (emphasis added).

In Easley, the Third Circuit found mental alertness was an essential eligibility

requirement under the Pennsylvania statute because it was necessary to receive benefits. Easley,

36 F.3d at 303. The statute required physically disabled recipients to be mentally alert in order

to obtain attendant care services. Id. at 300. One plaintiff suffering from a head injury had

limited mobility and was unable to speak, while the other plaintiff was schizophrenic and

immobile from the waist down. Id. at 299. Because the statute was created to establish

independence and assist participants in becoming contributing members of society, mental

alertness was an essential requirement, and the plaintiffs did not qualify. Id. at 303.

In the present case, Jennifer meets the essential eligibility requirements under the Statute

because she can successfully reunite with Caleb. Jennifer’s case differs from Easley, where the

disability was a requirement; however, physical disabilities are not at issue when determining if

an individual satisfies the essential requirements of the Statute. Jennifer presents the unique

situation of having a terminal illness, altering the meaning of successful reunification because

she has approximately six months to live. Still, her eligibility allows for a nontraditional, yet

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successful reunification. When DSS considered a reunification plan for Jennifer, it should have

been created with her disability in mind. Without this type of consideration, every physically

disabled person will be discriminated against based solely on a disability.

Jennifer can successfully reunite with Caleb for her remaining months if two caregivers

are provided, which would satisfy the essential requirement of a rehabilitation program.

Caregiver assistance is all that stands between Jennifer and Caleb reuniting. Although a social

worker visited Jennifer’s home and found she was unable to provide for Caleb without additional

help, a reunification plan will correct this insufficiency. Under the Statute, DSS is required to

provide services to create a reunification plan because of Jennifer’s potential for success.

Therefore, Jennifer meets the essential eligibility requirements for a successful reunification.

B. By denying Jennifer services, DSS failed to make reasonable accommodations that do not alter the nature of DSS nor create an undue burden.

As a qualified individual, Jennifer is entitled to receive the services of DSS through

reasonable accommodations because her request of two full-time caregivers does not alter the

nature of or create an undue burden on DSS. Qualified individuals shall not be denied the

“benefits of the services, programs, or activities of a public entity.” § 12132. A public entity is

required to make reasonable accommodations to allow disabled persons to receive services or to

participate in its programs. § 35.130(b)(7); In the Interest of C.M., 526 N.W. 2d at 566;

Alexander v. Choate, 469 U.S. 287, 301 (1985).2 An accommodation is reasonable if it does not

fundamentally alter the nature of the program or impose an undue burden on the public entity.

See Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 278 n.17 (1987). The burden is on the

plaintiff to prove a reasonable accommodation should be made, then the burden shifts to the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!2 Legislative history shows that ADA reasonable accommodations should be analyzed consistently with the Rehabilitation Act. See H.R. Rep. No. 101-485(II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367; see also McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012) (finding that the standards of the Rehabilitation Act and ADA are nearly identical).

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public entity to demonstrate that the accommodation is unreasonable, alters the nature of the

program, or is an undue burden. Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir.

1995). Because DSS denied reasonable accommodations and failed to establish that providing

services would fundamentally alter the program or create an undue burden, DSS discriminated

against Jennifer.

1. DSS denied its services, programs, and activities to Jennifer by not providing a reunification plan through rehabilitative services.

DSS denied its services by failing to provide a reunification plan that would allow

Jennifer to spend her remaining months with her son. If a person is a qualified individual and is

denied the services, programs, or activities of the public entity, discrimination occurs. See §

12132; In the Interest of C.M., 526 N.W.2d. at 566. A reasonable accommodation gives an

otherwise qualified individual “meaningful access” to services sought, and the individual should

not be completely prevented from enjoying benefits. Choate, 469 U.S. at 301. The ADA

requires public entities to put forth a “meaningful effort” to rehabilitate the home and correct the

conditions which caused the removal of the child. See J.T., 947 S.W.2d at 768. Reasonable

accommodations should be made when there is the possibility to cure a parent’s inability to care

for their child. Stone v. Daviess Cnty. Div. of Children & Family Servs., 656 N.E.2d 824, 831

(Ind. Ct. App. 1995). The benefits provided by a public entity should allow individuals to fully

participate in its programs. Disabled in Action v. Bd. of Elections in the City of N.Y., 752 F.3d

189, 199 (2d Cir. 2014) (emphasis added).

New Scotland requires public entities to provide every reasonable effort to maintain a

family relationship and provide services including, but not limited to rehabilitation, visitation,

and reports of the child’s progress, regardless of whether parental rights were terminated. N.S.

Soc. Servs. Law § 384-b(3) (emphasis added). Public entities are required to provide services

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including, but not limited to, “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)(a).

The Arkansas Supreme Court found accommodations were made when the Arkansas

Department of Human Services provided benefits to a disabled mother. J.T., 947 S.W.2d at 768.

There, the plaintiff suffered from a mental disability and claimed the department did not provide

her with services to reunite with her son. Id. at 767. Reasonable accommodations were made

because the department provided therapy sessions, parenting classes, transportation, and various

casework services. Id. at 768. See also In the Interest of C.M., 526 N.W.2d at 566 (finding

reasonable accommodations were made when a “lengthy list” of services were provided to the

disabled mother).

In contrast, the Second Circuit held in Disabled in Action that an elections board did not

make reasonable accommodations because it did not make voting polls accessible to individuals

suffering from various physical disabilities. 752 F.3d at 200-01. Individuals with mobility or

visual disabilities were unable to access the polls during elections due to several barriers

obstructing ramps, entrances, and pathways. Id. at 191-93. Reasonable accommodations would

have been made if the board had satisfied its “affirmative obligations” by making the polling

locations accessible and providing workers to assist the disabled voters. Id. at 200-01.

Here, DSS failed to provide any rehabilitative services to reunite Jennifer and Caleb

because DSS merely sent a social worker to Jennifer’s apartment to investigate, and no other

steps were taken by DSS that would constitute a meaningful effort. Although DSS provided for

Jennifer’s personal needs, it failed to provide any accommodations for her to reunite with Caleb,

resembling the lack of accommodations in Disabled in Action. By providing Jennifer with two

caregivers, DSS would make reasonable accommodations that would allow Jennifer to care for

11

Caleb in accordance with J.T. These caregivers would see to Caleb’s physical needs, curing the

deficiencies noted by the social worker, while still allowing Jennifer to provide the love, care,

and attention that every child should have the opportunity to receive from his natural mother.

Although, Jennifer has some visitation rights, she has not received the required

meaningful access per Disabled in Action that should be provided to facilitate rehabilitation. In

order to comply with meaningful access as established by the Supreme Court in Choate and in

the Statute, the rehabilitative services of two caregivers should be provided so Jennifer can fully

participate in the programs of DSS. Allowing mere visitation rights is far below anything that

could amount to a meaningful effort because the current visitation is limited—both in frequency

and in length. Additionally, visitation is only one of the services DSS is required to provide

based on the Statute’s “including but not limited to” language, and here it was not provided

freely by DSS, but was ordered by the Family Court. Therefore, DSS failed to provide

meaningful access to its services for a reunification plan, and it discriminated against Jennifer

under the ADA.

2. Jennifer’s requested reunification plan neither alters the nature of the program nor imposes an undue burden on DSS.

Providing two full-time caregivers does not fundamentally alter the nature of DSS and

does not create an undue burden because this accommodation is consistent with the purpose of

DSS and is aligned with the types of services it provides. Because the ADA does not provide a

test to determine whether a modification is reasonable, courts apply a factor test. See Staron v.

McDonald’s Corp., 51 F.3d 353, 355-56 (2d Cir. 1995); Strathie v. Dep’t of Transp., 716 F.2d

227, 231 (3d Cir. 1983). An accommodation is reasonable if it: (1) does not fundamentally alter

the nature of the program; and (2) does not impose an undue burden on the public entity. See

Arline, 480 U.S. at 278 n.17; Choate, 469 U.S. at 300. The reasonableness of a modification is

12

determined on a case-by-case basis. Crowder v. Kitagawa, 81 F.3d 1480, 1486-87 (9th Cir.

1996); Staron, 51 F.3d at 356; Easley, 36 F.3d at 305. Because DSS can provide rehabilitative

services through a reunification plan without fundamentally altering the nature of its programs

and without creating an undue burden, DSS should have provided the reunification plan.

a. DSS failed to show how providing Jennifer with a reunification plan fundamentally alters the nature of the program.

Providing two full-time caregivers under a reunification plan does not fundamentally

alter the nature or purpose of DSS, but rather furthers its purpose of providing extra care to

individuals suffering from disabilities. The only time a public entity can refuse reasonable

accommodations for a qualified individual is when the accommodations “fundamentally alter the

nature of the service, program, or activity.” § 35.130(b)(7); Olmstead v. L.C. ex rel. Zimring,

527 U.S. 581, 603 (1999); Herschaft v. N.Y. Bd. of Elections, No. 00 CV 2748, 2001 WL

940923, at *5 (E.D.N.Y. Aug. 13, 2001). The reasonableness of the modification can be

analyzed in light of proposed alternatives. Crowder, 81 F.3d at 1485. “A public entity shall not

impose or apply eligibility criteria that screen out or tend to screen out an individual with a

disability . . . from fully and equally enjoying” its benefits, unless the criteria is necessary to the

nature of the program. 28 C.F.R. § 35.130(b)(8) (2012). The public entity has the burden to

show a fundamental alteration has or will occur. Olmstead, 527 U.S. at 605.

The Eastern District of New York in Herschaft found that modifications to the required

qualifications of political candidates would fundamentally alter the nature of the program. 2001

WL 940923, at *6. The plaintiff, who suffered from paranoid schizophrenia, filed a

discrimination claim against the Board of Elections because it refused to allow him additional

time to collect petition signatures to qualify as a candidate. Id. at *1. The court reasoned that

changing the time frame to collect signatures would require the board to create an entirely new

13

schedule, creating an unfair advantage over other candidates and fundamentally altering the

nature of the election process. Id. at *6. See also Easley, 36 F.3d at 305 (finding that attempting

to use surrogates to satisfy the “mentally alert” requirement of the statute would change the

nature of the program). But see Olmstead, 527 U.S. at 605-06 (reasoning that if the state had an

“effectively working plan” in place, it could deny the accommodation requests of mentally ill

patients).

Because the purpose of a reunification plan is to successfully reunite Jennifer with her

son, the nature of this program will not be fundamentally altered. Part of the purpose of DSS is

to provide assistance to those suffering from disabilities, and reunification programs are in place

to preserve and reform the familial relations between a parent and child. The accommodation of

two caregivers is different from Herschaft and Olmstead because Jennifer is not asking for a

change to the traditional rehabilitative services DSS provides, but is merely asking that a

reunification plan be provided. This case also differs from Olmstead because DSS currently

does not have a working plan in place to provide any reunification substitutes to Jennifer if

denied a reunification plan. Jennifer is only asking DSS to comply with the Statute and provide

her the ability to reunite with Caleb, which imposes no alterations to DSS or its rehabilitative

services. These caregivers are all Jennifer needs to successfully reunite with her son.

Even if this Court finds that providing two full-time caregivers is inconsistent with the

fundamental nature of DSS, other support could be provided to reunite Jennifer with Caleb and

continue her role as a parent. Other alternatives are available to provide part-time care,

especially since Caleb attends school on weekdays and participates in soccer practice. Because

providing two full-time caregivers is consistent with the nature of a reunification plan and the

purpose of DSS, this accommodation should be provided to Jennifer.

14

b. DSS failed to show how providing Jennifer with a reunification plan creates an undue burden.

A reunification plan of two full-time caregivers does not impose an undue burden

because DSS is currently providing two foster parents, and DSS provided similar services to

Jennifer before she was hospitalized. Reasonable accommodations should be made to a disabled

individual, unless it imposes “an undue hardship on the operation of its program.” 28 C.F.R. §

41.53 (2012); Olmstead, 527 U.S. at 606 n.16; Easley, 36 F.3d at 305. A public entity is not

required to “undertake measures that would impose an undue financial or administrative

burden.” Tennessee v. Lane, 541 U.S. 509, 532 (2004). When other programs offer benefits

similar to those requested by the claimant, the accommodations are viewed as reasonable and not

an undue burden upon the public entity. See, e.g., AP ex rel. Peterson v. Anoka-Hennepin Indep.

Sch. Dist. No. 11, 538 F. Supp. 2d 1125, 1142-43 (D. Minn. 2008). The public entity bears the

burden of proof to show there is an undue hardship. See Gorman v. Bartch, 152 F.3d 907, 912

(8th Cir. 1998).

In Peterson, the Minnesota District Court found when one public entity provided a

requested accommodation, it did not create an undue burden for another public entity to make the

same accommodation. 538 F. Supp. 2d at 1143. A diabetic child filed a Title II claim against a

daycare program based on the daycare’s refusal to provide accommodations, including

monitoring the child’s blood sugar and insulin pump, and administering injections. Id. at 1130-

31. The court rationalized that because other daycares and public programs were training staff to

handle these types of situations, this daycare would not suffer an undue burden by making the

same accommodation. Id. at 1142-43. But see Easley, 36 F.3d at 305 (finding the proposed

accommodations of allowing individuals with mental disabilities to receive benefits would

“create an undue and perhaps impossible burden on the State, possibly jeopardizing the whole

15

program” because the purpose was to assist with physical rather than mental disabilities).

In Olmstead, the Supreme Court of the United States found that the amount of a state’s

budget allocated to provide services to those in need is not determinative of an undue burden.

527 U.S. at 604. Two mentally disabled individuals requested less isolation and less restrictive

care from the state. Id. at 582. The Court reasoned that the undue burden analysis should not be

based on the state’s budget when considering medical care with respect to these particular

plaintiffs because it did not take into consideration the remaining disabled citizens in the

community. Id. at 604.

Providing two full-time caregivers as a rehabilitative service is not an undue burden on

DSS administratively or monetarily. Because DSS paid for Caleb’s daycare and provided a

nurse who fixed Caleb’s dinner and bought easy open drinks for him, DSS should be able to

provide two full-time caregivers without an undue burden. DSS provided these accommodations

before Jennifer was hospitalized and would likely have continued to do so had Jennifer’s parental

rights not been terminated. This is similar to Peterson because providing two caregivers does

not cause an undue burden when it is the same type of service DSS previously provided.

Although the argument can be made that there is an undue hardship placed upon DSS due

to the cost of providing two caregivers, this argument is without merit under the standard

presented in Olmstead. Currently, DSS is paying a foster family3 to care for Caleb, which is

comparable to providing the two requested caregivers. This analysis differs from that of

Olmstead because Jennifer is not looking to DSS’s ability to pay for services, but rather the fact

that it is already spending a similar amount. This connection is more ideal than the one in

Peterson because instead of looking to other public entities that have provided these types of

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!3 When a child is placed in foster care, generally the full payment is provided to the family for the cost of raising the child. See e.g., N.Y. Soc. Servs. Law § 398-a(2)(2-a) (McKinney 2014); In re Coop, 531 N.Y.S.2d 449, 452 (Fam. Ct. 1988).

16

services, DSS actually provided a similar service themselves. Here, Jennifer is not asking for

care that will extend for a lengthy amount of time. Rather, she is requesting care that will likely

only last six months. Therefore DSS failed to meet their burden of proof that undue hardship

will occur if Jennifer is provided two caregivers.

C. DSS discriminated against Jennifer because it denied services based on her physical disability.

DSS denied Jennifer a reunification plan because of her physical disability, not her

mental or emotional capability to parent her son. Congress enacted the ADA to eliminate

discrimination against individuals with disabilities. See 42 U.S.C. §§ 12101(a)(5), (b)(1) (2012);

Crowder, 81 F.3d at 1483; Ability Ctr. of Greater Toledo v. City of Sandusky, 133 F. Supp. 2d

589, 591 (N.D. Ohio 2001). Title II applies when public entities discriminate, regardless of the

entity’s intent. Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 206 (E.D.N.Y. 2000); Herschaft,

2001 WL 940923, at *2. Denying the required benefits simply because of the individual’s

disability is a violation of the ADA. J.T., 947 S.W.2d at 767. Generally, the purpose of social

service departments is to care for those who cannot care for themselves.4

Generally, courts do not find discrimination against those suffering from mental

disabilities because mental capacity is usually necessary to further the purpose of programs like

those provided by DSS. See e.g., Easley, 36 F.3d at 305 (finding reasonable accommodations

could not be made to allow a mentally disabled individual to receive services because mental

capacity was a requirement under the statute); In the Interest of C.M., 526 N.W. 2d at 566

(reasoning a reunification plan was inappropriate for a mother who suffered from a personality

disorder, due to her lack of mental capacity); In re Chance Jahmel B., 723 N.Y.S.2d 634, 639

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!4 See, e.g., Albany Cnty. Dep’t of Soc. Servs., http://www.albanycounty.com/government/departments/departmentof socialservices.aspx (last visited Jan. 10, 2015) (stating “[i]t is our mission to improve the quality of life in Albany County by helping people to help themselves, to help those incapable of acting on their own behalf and to ensure everyone has an acceptable standard of living”).

17

(Fam. Ct. 2001) (denying a caregiver to a father with a brain injury because his mental disability

prevented reunification). However, with physically disabled individuals, discrimination is

generally found because that is what programs like DSS are intended to accommodate.5

Here, DSS denied Jennifer the ability to reunite with her son merely because of her

physical disability. DSS’s decision to refuse the needed benefits was not based on the mental

and emotional state of Jennifer, but rather on the fact that Jennifer is losing her physical abilities.

Jennifer’s physical disability is different from the mental disabilities in Easley, C.M., and

Chance Jahmel B. because Jennifer is still able to parent her child, whereas a mental disability

inhibits an individual’s ability to parent. Individuals with mental disabilities are unable to

benefit from or succeed in rehabilitative services because those programs are designed to not

only improve the quality of life, but to help individuals lead a more stable life. Although DSS

may not have intended to discriminate against Jennifer, the discrimination does not have to be

deliberate as evidenced in Henrietta and Herschraft. When DSS failed to consider Jennifer’s

physical condition, DSS discriminated based on her disability.

Jennifer is still mentally able to care for Caleb, which qualifies her for reunification.

Even the social worker’s report disclosed that Jennifer was mentally capable and is a “good

mom,” but the denial of rehabilitative services focused only on Jennifer’s limited physical

abilities. Even if the doctor’s life expectancy estimation of six months is accurate, Jennifer is

still able to provide the love and emotional support that mothers provide to their children. The

caregivers will be able to see to Caleb’s needs, which is similar to hiring a nanny. The Family

Court found that Jennifer was a “capable and loving parent,” further proving that DSS’s

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!5 See, e.g., Disabled in Action, 752 F.3d at 200-01 (reasoning the board of elections had affirmative obligations to provide voting facility accommodations to individuals suffering from physical disabilities); Staron, 51 F.3d at 358 (holding restaurants could enact smoking restrictions to accommodate disabled plaintiffs suffering from smoke-sensitive allergies); Heather K. City of Mallard, Iowa, 946 F.Supp. 1373, 1375, 1378 (N.D. Iowa 1996) (finding open burning discriminates against disabled persons suffering from severe respiratory and cardiac conditions).

18

determination to deny a reunification plan was based on the disability and not on Jennifer’s

capability of being reunited as a parent.

At this time, Jennifer has full mental capacity and can still provide support for and

parenting to her only child. Jennifer is not asking for the caregivers to parent her son; rather, the

caregivers will be there to take care of her son’s physical needs. Because Jennifer is a qualified

individual with a disability who DSS discriminated against by denying rehabilitative services

through reasonable accommodations, DSS violated the ADA.

II. IT IS IN CALEB’S BEST INTEREST TO REUNITE WITH HIS MOTHER BECAUSE JENNIFER IS ABLE TO CARE FOR HIS NEEDS, MAINTAIN THEIR FAMILIAL RELATIONSHIP, AND SUCCEED AS A FIT PARENT.

Jennifer and Caleb should be reunited because Jennifer is a fit and natural parent who can

provide for Caleb’s best interests. In custody cases, the best interests of the child are of the

utmost importance because “the rights and needs of the child rise above the rights and needs of

the parent,” and the superior rights of a “fit, proper, and suitable” natural parent should prevail

over any interest that may be held by a third party.6 In re A.L., No. 02-0333, 2002 WL 700940,

at *1 (Iowa Ct. App. Apr. 24, 2002) (citing In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App.

1997)). A child cannot be removed from the custody of his parent simply because there might be

a third party who could “better provide for the child.” Nielsen v. Nielsen, 296 N.W.2d 483, 487

(Neb. 1980). Although there is no one test to determine the best interests of a child, the Supreme

Court of Texas established a set of factors to aid in this determination. See Holley v. Adams, 544

S.W.2d 367, 371-72 (Tex. 1976). This is not an exhaustive list of criteria for a best interest

analysis, but it does provide a framework for determining the best interest of the child. Id. at

372. Holley recognized nine nonexclusive factors: (1) emotional and physical needs of the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!6 “The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment, and does not evaporate simply because they . . . have lost temporary custody of their child to the State.” Santosky v. Kramer, 455 U.S. 745, 745 (1982).

19

child; (2) emotional and physical dangers to the child; (3) wishes of the child; (4) programs

available to assist with the care of the child; (5) future plans for the child; (6) abilities of the

parent seeking custody; (7) stability of the home; (8) acts or omissions by the parent; and (9)

excuses for such acts or omissions.7 Id. at 372.8

Categorically, factors one and two apply directly to caring for the child, and factors three,

four, and five relate to maintaining the child’s familial relationships. Factors six through nine

apply to the fitness of the parent who will be caring for the child. Jennifer has the burden of

proof because she is requesting a change in custody. In re Marriage of Carney, 598 P.2d 36, 39

(Cal. 1979). Utilizing the Holley factors establishes that the reunification of Jennifer and Caleb

is in the best interest of the child.

A. Jennifer is able to care for Caleb’s needs, and any emotional or physical dangers to Caleb are minimal.

Through her interactions with Caleb, Jennifer has established that she cares for his

emotional and physical needs despite her inability to be physically active. The heart of parenting

lies in the “ethical, emotional, and intellectual guidance” that a parent is able to provide for her

child. Id. at 44. Although a parent’s physical health is one factor to consider, it is rarely

dispositive. Hatz v. Hatz (“Hatz II”), 468 N.Y.S.2d 943, 944 (App. Div. 1983). Standing alone,

a disability should not eclipse other factors supporting a parent’s ability to care for their child.

Id. Whether a physical disability materially affects a parent’s potential to care for a child will

depend on the unique facts of each case. Id. It would be erroneous to assume that even if a

parent cannot participate in a physical activity, that they cannot share in such an activity to a

meaningful degree; to assume this would be to mistakenly determine that a “parent’s handicap

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!7 Because Jennifer has no “acts or omissions,” the excuse factor is not at issue. 8 The Holley factors easily divide into three categories: (1) caring for the child; (2) maintaining family relationships; and (3) parental fitness.

20

inevitably handicaps the child.” Carney, 598 P.2d at 42-43. Here, the Holley factors support the

determination that Jennifer is able to provide for both Caleb’s emotional and physical needs.

1. Jennifer is able to care for Caleb’s needs because she is emotionally supportive, and her physical disability does not prevent Caleb from being physically active.

Jennifer is able to care for Caleb by providing for his emotional needs, even though she

cannot engage in his physical activities. When a parent becomes seriously disabled, the child’s

best interests are served by adjusting to the changed circumstances brought on by the disability.

Hatz v. Hatz (“Hatz I”), 455 N.Y.S.2d 535, 537 (Fam. Ct. 1982), aff’d, 468 N.Y.S.2d at 943. A

natural parent has the ability to use such a situation to teach the child and to deal with “the

child’s feelings about himself, his relationships with others, his system of values, his standards of

conduct, and his goals and priorities in life.” Carney, 598 P.2d at 44. The source of a parent’s

emotional support is motivated by the love and concern that only natural parents have for their

child’s well-being. Id.

In Carney, the court held that parents with physical limitations should not be “deprived

of their children because of their disability.” Id. at 37. Custody was awarded to a quadriplegic

father who required live-in care to feed, bathe, and clothe him. Id. at 40-45. The court focused

on other aspects of the father’s ability to care for his child, finding “the most valuable service a

parent can render” is the ability to talk to and teach a child, even if a parent’s physical limitations

inhibit his ability to provide in other ways. Id. at 44. Because the father was unemployed, he

was available at all times to provide care and see to the upbringing of his children. Id. at 39.

The court reasoned that a parent’s disability does not affect the child’s perception of the parent;

the child simply craves love, affection, and the sympathy of the parent, all of which can be

provided while teaching the “enduring lessons on patience and tolerance” that stem from a

21

parent’s disability. Id at 44. Through these life lessons, a disabled parent can serve to influence

the imagination of the child, as well as foster the child’s independence and self-reliance. Id.

Accordingly, a parent’s inability to physically participate in the activities of children does not

preclude the children from learning and enjoying physical activities themselves. Id.

When a parent becomes seriously disabled, it is in the best interests of the child’s future

emotional needs to adjust to the life changing event of her mother’s disability. Hatz I, 455

N.Y.S.2d at 537. In Hatz I, the Family Court awarded custody to a mother who became

paraplegic in a serious car accident. Id. Living with the mother’s disability allowed the child to

appropriately learn how to handle a stressful life event, whereas leaving the situation would not

allow for this type of growth. Id.

In the present case, Caleb is learning how to handle a traumatic life event in a positive

way—by spending as much time as possible with his mother. Just as Hatz I emphasized the

importance of the child adjusting to his mother’s disability, Caleb needs this opportunity to learn

how to adjust to painful situations and ultimately enhance his future emotional growth. Jennifer

has done the best any parent could do to provide the love, affection, and sympathy a mother

should provide a son, including creating voice recordings of Caleb’s favorite books and writing

down everything she wants to tell him to ensure that his family memories will live on. Jennifer

also wrote letters with attached photographs for Caleb’s birthdays through the age of twenty-five,

which parallels the ideas in Carney, where a parent’s ability to connect with a child is the most

valuable benefit that can be provided.

Even though Jennifer’s medical prognosis is grim, much like the father’s in Carney, this

does not mean she cannot provide emotional and physical support. Caleb is able to learn, play,

and be physically active, even though Jennifer is not. To assume Caleb cannot participate in

22

those activities would essentially impute a parent’s disability onto the child. Although her

speech is limited, Jennifer is still able to emotionally share in any physical games or activities in

which Caleb participates. Like the father in Carney, Jennifer has no obligations outside of the

home and is available to support and care for Caleb at all times. Jennifer is able to see to Caleb’s

upbringing and provide the support Caleb needs to thrive.

2. Jennifer’s ability to be a loving, nurturing parent substantially outweighs any potential emotional or physical dangers to Caleb.

The emotional and physical dangers consideration of the Holley factors is not intended to

place additional scrutiny on physically disabled parents such as Jennifer. Instead, when

evaluating the emotional and physical well-being of a child, courts generally focus on a parent’s

abusive or violent conduct, frequent incarceration, drug abuse, or inadequate supervision. In re

R.D.H., No. 12-03-00390-CV, 2005 WL 1000617, at *7 (Tex. Ct. App. Apr. 29, 2005); see, e.g.,

Kimock v. Jones, 47 A.3d 850, 853 (Pa. Super. Ct. 2012) (focusing on the father’s abusive

behavior and finding it endangered the child and, therefore, reunification was not in the child’s

best interest). When there is no evidence that a parent is a danger to a child’s emotional well-

being, that child should not be taken from his parent. Holley, 544 S.W.2d at 370.

Courts dealing with similar cases are extremely reluctant to find that a parent is a danger

to the emotional well-being of a child. See generally id. For example, in Holley the court

declined to find that a mother was endangering her child’s emotional well-being, despite the fact

the mother was committed to a mental hospital, was twice-divorced, spent time in jail, declared

bankruptcy, and only sporadically spent time with her child. Id. Despite these egregious facts,

the court refused to disrupt the parent-child relationship, keeping the mother’s parental rights

intact and finding that her time with her child did not endanger the child’s well-being. Id.

Here, Jennifer does not satisfy the usual criteria of abuse, neglect, or abandonment that

23

courts consider when contemplating whether to keep a parent and child apart. This Court should

not focus on Jennifer’s physical disability, but rather on the potential damage to Caleb if he

remains in foster care. There is only an emotional danger to Caleb if he is kept from his mother.

It is possible that Caleb will always wonder if he should have been by his mother’s side or have

spent as much time with her as possible when he had the chance. Caleb already had his life

disrupted when he was taken from his mother and sent to foster care. In order to avoid a possible

lifetime of guilt and regret,9 feeling as though he abandoned his mother in her time of need,

Caleb should be reunited with Jennifer to cherish the remaining moments they have together.

B. Because Jennifer is Caleb’s natural parent, she is able to provide and maintain the only familial relationship Caleb has ever known.

It is important to maintain Caleb’s relationship with his mother because Jennifer is the

only family Caleb will ever know. The primary purpose of the Statute is to reunite families

when possible. N.S. Soc. Servs. Law § 384-b(1)(a)(ii). Separating a child and his parent “can

never be justified without the most solid and substantial reasons.” Wiley v. Spratlan, 543 S.W.2d

349, 352 (Tex. 1976) (quoting State v. Deaton, 54 S.W. 901, 903 (Tex. 1956)). When the parent-

child relationship is preserved, a presumption arises that a child’s best interests are fulfilled.

Wiley, 543 S.W.2d at 352 (citing Herrera v. Herrera, 409 S.W.2d 395, 398 (Tex. 1966)).

Reuniting Jennifer and Caleb would serve the interest of the Statute, as well as maintain the bond

between mother and son.

1. Caleb enjoys spending time with his mother because she provides a level of comfort and security that he has always known.

Consideration should be given to the fact that Caleb treasures the time he spends with his

mother. Although the “wishes of a child under the age of 14 years are not controlling,” it is a

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!9 See About Childhood Grief, National Alliance for Grieving Children (2013), https://www.childrengrieve.org/sites/ default/files/About%20Childhood%20Grief-%202013.pdf.

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factor to weigh. Haynes v. Haynes, 286 N.W.2d 108, 110 (Neb. 1979). It is unknown whether

Caleb has a preference about where to live, but Caleb cherishes the time he spends with his

mom. As his sole provider, Jennifer offered love, support, and happiness to Caleb for his entire

life. It is unlikely that a foster family has reached this level of trust and care in just a few short

months. It is important to acknowledge that Caleb enjoys spending time with his mother and

does not appear emotionally distraught by her condition.

2. Jennifer has the support of assistance programs that allow her to maintain a loving relationship and provide for her son.

Jennifer’s disability is only one consideration in determining Caleb’s best interests

because she is able to maintain a healthy and loving relationship with Caleb. Contemplating the

health or physical conditions of the parent is “of minor importance,” and any concern a court

may have regarding a parent’s disability can be overcome by showing that a parent has access to

programs which assist with the child’s needs. Carney, 598 P.2d at 42. A parent’s physical

condition is so minor because of the vast number of programs that exist to encourage and involve

children in a variety of activities they may not be able to receive directly from their parents. Id.

at 43. Even if a parent has a physical disability, there are individuals and programs available10

such as DSS and “the professional instructors available through schools, church groups,

playgrounds, camps, the Red Cross, the YMCA, the Boy Scouts, and numerous service

organizations.” Id.

In Carney, the court awarded custody to a quadriplegic father because any form of

domestic help could contribute to the upbringing of the children in areas where the father was

unable. Id. at 40, 45. The father’s girlfriend ensured a healthy environment by caring for the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!10 Government agencies and communities provide a multitude of programs to help provide for the needs of children. See Linda Juszczak & Sally S. Cohen, Integrating Services to Improve Access and Outcomes for Children and Families, 2 Quinnipiac Health L.J. 33 (1998).

25

needs of the father and looking after the children as if they were her own. Id. at 40.

Prior to Jennifer’s admittance into the nursing home, she and Caleb lived together with

the help of a nurse. DSS provided Caleb with a full-time daycare program, transportation and

meals, and the nurse provided dinner for him at home. With these services in place, Jennifer was

easily able to parent Caleb, and there was no need to remove him from her custody. As in

Carney, where the father’s girlfriend provided care to the children, DSS can provide similar care

for Caleb. The reunification plan would allow Caleb and Jennifer to return to a time where they

lived as mother and son. With the reunification plan in place, and the caretakers provided by

DSS to assist with Caleb’s physical needs, Jennifer will be able to provide the nurturing and

emotional support that are vital to Caleb’s growth.

3. Caleb needs this remaining time with his mother to strengthen their emotional bond and create the memories he will carry with him in the future.

Caleb should be reunited with his mother because time spent together supports his

emotional well-being. A “realistic and feasible” plan, providing for an “adequate, stable home

and parental care for the child” must be provided to prove that the parent has planned for the

future of the child. N.Y. Soc. Servs. Law § 384-b (McKinney 2014). Spending the maximum

amount of time with a child to prepare the child for the parent’s eventual passing is a reasonable

plan for the future of the family. Matta v. Matta, 693 N.E.2d 1063, 1063-65 (Mass. App. Ct.

1998) (finding a completely disabled mother’s “unselfish concern” for her child was enough to

grant custody, even though the time together would be used to help the child prepare for the

mother’s eventual passing).

Like the mother in Matta, Jennifer wants to spend as much time as possible with Caleb,

and this time could help Caleb be at peace with Jennifer’s eventual passing. Jennifer has always

looked after Caleb with unselfish concern, and she plans to use her time with Caleb to ingrain

26

memories that will remain with Caleb forever, which is a realistic and feasible goal for this

family. Caleb still looks to his mother for advice and comfort, and any extra time with her will

be beneficial in preparing him for a future without her. Caleb should be reunited with his mother

to give him the greatest advantage in preparing for the difficult time ahead.

C. Jennifer is a fit parent because she can provide guidance and a stable home, and she has not acted with parental misconduct through an act or omission.

Jennifer is a fit parent because her medical condition does not hinder her ability to

provide Caleb with parenting and a stable environment. A physical disability alone does not

make a parent unfit for child custody. Carney, 598 P.2d at 41-42. The right of a natural parent

“is not lightly to be set aside in favor of . . . unrelated parties, and the courts may not deprive a

parent of such custody unless he is shown to be unfit or to have forfeited his superior right to

such custody.” Nielsen, 296 N.W.2d at 484, 486; see also Santosky, 455 U.S. at 745.

Additionally, a court cannot rely solely on a physical disability as a determining factor of a

parent’s unfitness, and it may not automatically be viewed as a “probable detriment to the child.”

Carney, 598 P.2d at 42. Rather, the family unit should be viewed as a whole and the disabled

person as an individual. Id. at 44. Jennifer is able to provide the stability and guidance that are

characteristic of a fit parent.

1. Jennifer has the ability to parent Caleb with the use of domestic help because she provides guidance through a positive, emotionally supportive relationship with her son.

Jennifer is able to raise and nurture Caleb through the use of emotional support. Two of

the most important components of parenting are emotional communication and positive child-

interaction.11 The moral and emotional support a parent provides is the crux of parenting and it

informs a child’s formative years more than any physical acts, like the parent’s ability to take the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!11 Ctrs. For Disease Control and Prevention, Parent Training Programs: Insight for Practitioners, 4-5 (2009), available at http://www.cdc.gov/violenceprevention/pdf/parent_training_brief-a.pdf.

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child places. Carney, 598 P.2d at 44. Parents are able to care for their children even if the

parents’ care is accompanied by assistance from a state recognized agency. In re W.W. Children,

736 N.Y.S.2d 567, 581 (Fam. Ct. 2001). When parent develops a physical disability, it does not

mean that the parent’s ability to love and care for the child has changed. Warnick v. Couey, 359

So. 2d 801, 803 (Ala. Civ. App. 1978). See Carney, 598 P.2d at 40, 44 (finding that a wheelchair

bound father had the ability to parent his children because he could talk to them, provide

emotional support, foster their imaginations, and engage them in learning while someone else

took care of their physical needs).

According to the Parent Training study conducted by the Centers for Disease Control

and Prevention (“CDC”), the most successful parent-child outcomes in a parent training program

came from the parents who provided their children emotional support and positive interactions.12

Researchers in the study analyzed parent training programs and discovered the majority of

successful programs utilized two similar components: (1) emotional communication skills, which

includes active listening, helping children recognize their feelings and emotions, and

appropriately expressing and dealing with emotions; and (2) positive child-interaction skills,

such as offering positive attention and enthusiasm for the child, as well as encouraging positive

play and creativity.13

The instant case is similar to Carney because Jennifer is also wheelchair bound but able

to provide parenting to her son through the use of domestic help for his physical needs. Jennifer

is still able to provide the emotional and mental support that the father in Carney was able to

provide to his children. The CDC did not recognize physical components of parenting as leading

to the most successful parent and child relationships. Instead, Jennifer fosters Caleb’s

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!12 Ctrs. For Disease Control and Prevention, Parent Training Programs: Insight for Practitioners, 5, 7 (2009), available at http://www.cdc.gov/violenceprevention/pdf/parent_training_brief-a.pdf. 13 Id. at 4-5.

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imagination by reading with him, and Caleb looks to Jennifer for parental approval and love,

which are two of the components of the most successful parents and children, according to the

CDC. Jennifer has opted out of experimental drugs and treatments so that she and Caleb can

bond and grow in their time together. Jennifer has done everything to ensure that she is able to

properly parent Caleb when they spend time together.

2. Jennifer is a fit parent because she provides a stable environment through the security of the love and attention she gives to Caleb.

As a fit parent, Jennifer has always provided Caleb with a loving, caring, and stable

environment. There are several ways to provide a stable environment, including the stability that

is provided through the security of love and attention from a natural parent. Carney, 598 P.2d at

44. Only when there is undeniable evidence of “abandonment, desertion, or unfitness on the part

of the parent,” will the natural parent lose custody. In re Waites, No. 2012-CT-00884-SCT, 2014

WL 7084766, at *5 (Miss. Dec. 11, 2014). When a parent can no longer provide a good home

for her child and makes other arrangements for him she has not abandoned her child;

abandonment only occurs when a parent intends to forego her obligations as a parent and fails to

visit or communicate with the child, even when the parent is able to do so. N.Y. SSL § 384-b;

Heard v. Bauman, 443 S.W.2d 715, 719 (Tex. 1969) (emphasis added).

In Heard, the Supreme Court of Texas found that when a mother temporarily secured a

home for the children that was better than what she could provide, she was caring for the

children in the best possible way. 443 S.W.2d at 719. The natural mother was financially unable

to care for her children so she arranged for the children to reside with their grandparent. Id. The

court did not find any evidence to establish that the mother intended anything other than a

temporary home while she got her finances under control. Id. See also Carney, 598 P.2d at 44

(finding that the father’s ability to mentor and support his children, while fostering independence

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and self-reliance, provided the stable home the children needed).

Jennifer did not contest DSS terminating her parental rights because she was told she

would be unable to return home. However, like Heard, Jennifer was providing for her son in the

best way she knew how. There is no indication Jennifer would have permanently terminated her

rights if she believed she would leave the nursing home. She was simply doing what she thought

was best for Caleb. It was in Caleb’s best interests to live with a foster family temporarily, and it

does not make Jennifer’s home an unstable environment. Additionally, Jennifer attempted to

pick up Caleb as soon as she left the nursing home, showing, per the Statute, that she did not

abandon Caleb. Jennifer always has and will provide a stable home for Caleb.

3. There are no acts or omissions of abuse, abandonment, or neglect by Jennifer because she has not acted with parental misconduct.

Because there is no indication that Jennifer has ever acted with violent or abusive

behavior, she has not committed any act that courts consider an “act or omission” that would

endanger Caleb. Parental misconduct and the acts or omissions of parents negatively affect the

emotional well-being of children and often allow for courts to terminate parental rights. Tex.

Fam. Code § 161.001 (2014); R.D.H., 2005 WL 1000617 at *7. Causing the death or serious

injury of a child, using controlled substances to endanger the health of a child, and being the

cause of a child born with alcohol or drug dependency issues are considered acts or omissions

under the Texas Statute. § 161.001. Parents further endanger the emotional well-being of their

children when the parents are physically abusive and the children run away or attempt to injure

themselves in order to avoid spending time with the parents. Kimock, 47 A.3d at 853.

In R.D.H., the court found that neglecting a child, not providing supplies for a child,14

and knowingly allowing a child to remain in a dangerous situation were reasons to disallow !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!14 Examples of supplies are any provisions that are necessary for a child’s care, including items such as clothing or diapers. R.D.H., 2005 WL 1000617, at *6.

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parental custody. R.D.H., 2005 WL 10000617, at *17. The parents of a four-year-old were

deprived of their parental rights when they abused their child, used controlled substances around

him and left him in with a person who endangered his emotional and physical well-being. Id. at

*1, 7, 17.

Also, the Superior Court of Pennsylvania found in Kimock that when a child ran away

and injured herself to avoid contact with her abusive father, reunification was no longer in the

child’s best interest. 47 A.3d at 853. The court gave the father two opportunities to reunite with

his daughter, even after the father verbally and physically abused the child. Id. at 851-53. The

court reasoned that at the point when the child is physically ill or causes danger to herself,

reunification no longer satisfies the best interest standard. Id. at 853.

In the present case, Jennifer has only acted with Caleb’s best interests in mind. She

intentionally entered Caleb into foster care when she was in a nursing home to ensure that he was

in a safe environment. This case is distinguished from R.D.H., where the parents knowingly

placed their son in conditions that endangered his physical and emotional well-being. There is

also no indication that Jennifer is verbally or physically abusive toward Caleb, like the father in

Kimock. However, unlike the child in Kimock, who was physically ill at the thought of spending

time with her father, Caleb enjoys the time he spends with his mother. Jennifer’s actions differ

greatly from those of a parent who engages in any of the acts or omissions that courts recognize

as being endangering to a child’s welfare. Jennifer has only ever acted in Caleb’s best interests.

CONCLUSION

For the reasons stated above, this Court should affirm the Third Appellate Division.