No. 0521-14 ____________________________________________________________________________________________

IN THE

NEW SCOTLAND COURT OF APPEALS ____________________________________________________________________________________________

New Scotland County Department of Social Services

Respondent – Appellant,

v.

Jennifer L., Petitioner- Appellee. ____________________________________________________________________________________________

On Appeal from the State of New Scotland, Third Appellate Division ____________________________________________________________________________________________

BRIEF FOR THE RESPONDENT-APPELLANT, NEW SCOTLAND COUNTY DEPARTMENT OF SOCIAL SERVICES

Team 135

Counsel for the Respondent –Appellant

New Scotland County Department of Social Services

  ii    

QUESTIONS PRESENTED

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

there was a violation of the Americans with Disabilities Act when the New Scotland

Department of Social Services found that providing the Appellee with two additional full-

time caregivers to care solely for her child is not a reasonable accommodation.

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

living with a parent who is terminally ill and unable to provide for the child’s needs,

instead of remaining in a stable foster care home, is in the best interests of the child.

  iii    

TABLE OF CONTENTS QUESTIONS PRESENTED…………………………………………………………….…… ii TABLE OF CONTENTS……………………………………………………………….…… iii TABLE OF AUTHORITIES…………………………………………………………….….....v STATEMENT OF THE CASE…………………………………………………………..…... 1 SUMMARY OF THE ARGUMENT………………………………………………………… 5 ARGUMENT…………………………………………………………………………......…... 8 I. THE THIRD APPELLATE DIVISION INCORRECTLY DETERMINED THAT THE

DEPARTMENT OF SOCIAL SERVICES VIOLATED APPELLEE’S RIGHTS BY FAILING TO CREATE A REUNIFICATION PLAN THAT WOULD ENABLE HER TO BE REUNITED WITH HER SON ………………………………………………8

A. Appellee Is Not A Qualified Individual Within The Meaning Of The ADA And Is

Not Entitled To Reasonable Accommodation………………………………..8

1. Appellee does not meet essential eligibility requirements of the NSSSL in order to properly establish a claim under the ADA. …………………9

2. Providing two additional caretakers for Caleb would constitute a fundamental alteration to the nature of NSSSL 384-b (3). …………13

3. Providing two additional caretakers for Caleb would constitute an undue

burden under NSSSL 384-(3). ………………………………….……15

B. Providing Additional Services Would Not Cure The Plaintiff’s Parental Deficiencies. …………………………………………………………………18

C. Allowing DSS To Provide Full Time Caregivers As A Part Of Reasonable

Accommodation Will Have Deleterious Effects On Public Policy And Such Accommodation Would Override The Child’s Best Interest. …………………20

II. THE THIRD APPELLATE DIVISION INCORRECTLY DETERMINED THAT IT IS IN THE CHILD’S BEST INTERESTS TO BE REUNITED WITH HIS TERMINALLY ILL MOTHER INSTEAD OF ALLOWING HIM TO REMAIN WITH HIS FOSTER CARE FAMILY………………………………..………………………………………22 A. Appellee Is Not Entitled To Further Reunification Services Because She Is

Unable--Due To Her Medical Illness--To Presently And For The Foreseeable Future Adequately Care For Her Child. ……………………………..…...……23

  iv    

1. Further reunification services are improper because Appellee is presently

“unfit” to parent due to her terminal illness. …………………….……24

2. Further reunification services are improper because Appellee is “unfit” to parent in the foreseeable future, due to her terminal illness.……………28

B. A Best Interests Analysis Reveals That Caleb Would Be Better Served In Foster

Care. …………………………………………………………………..…………31

CONCLUSION………………………………………………………………………..…………37

  v    

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES: Blum v. Bacon, 457 U.S. 132 (1982).............................................................................................15 Cooper Indus v. Leatherman Tool Grp., 532 U.S. 424 (2001)........................................................4 First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995)......................................................4 Olmstead v. L. C. by Zimring, 527 U.S. 581 (1999)......................................................................10 PGA Tour, Inc. v Martin, 532 U.S. 661 (2001).......................................................................10, 11

Santosky v. Kramer, 455 U.S. 745 (1982)………………………………………………..….22, 23 Stanley v. Illinois, 405 U.S. 645 (1972)........................................................................................ 22 Troxel v. Granville, 530 U.S. 57 (2000)........................................................................................31 CASES: Blair v. Supreme Court of State of Wyo., 671 F.2d 389 (1982) ....................................................23 Clark v. Madden, 725 N.E.2d 100 (Ind. App. 2000).....................................................................27 Doe v. Pfrommer, 148 F3d 73 (2d Cir. 1998) ...............................................................................13

Doe v. Roe, 526 N.Y.S 2d 718 (N.Y. Sup. Ct. 1988)……………………………………………27

Eschbach v. Eschbach, 436 N.E.2d 1260 (N.Y. 1982)..................................................................32

Friederwitzer v. Friederwitzer, 432 N.E.2d 765 (N.Y. 1982) ......................................................32

Goldhaber v. Rosen, 990 N.Y.S.2d 539 (N.Y. App. Div.2d Dep’t 2014).....................................31

Guardianship of Vera T. v. Cherie T., 435 N.Y.S.2d 598 (1st Dep’t. 1981)...........................29, 30

Hatz v. Hatz, 455 N.Y.S.2d 535 (N.Y. Fam. Ct 1982) .................................................................27

Helen L. v DiDario, 46 F3d 325 (3d Cir 1995).............................................................................15

Horvatich v. Texas Dept. of Protective and Reg. Services, 78 S.W.3d 594 (Tex. App. Austin 2002)..............................................................................................................................................33 In re Interest of A.L., 2002 Iowa App. LEXIS 417 (Iowa Ct. App. Apr. 24, 2002)......................20

  vi    

In re Angel B., 659 A2d 277 (Me 1995)........................................................................................18

In re Anthony V., 12 Neb. App. 567 (2004)...................................................................................23

In re Ashanti A., 869 N.Y.S.2d 20 (N.Y. App. Div. 1st Dep’t. 2008)...........................................29

In Re Chance Jahmel B., 723 N.Y.S.2d 634 (N.Y. Fam. Ct. 2001)...................................13, 14,19

In re Jacobs 433 Mich. 24 (1989)..................................................................................................25

In re Jason Anthony S., 717 N.Y.S.2d 197 (N.Y. App. Div. 2d Dep’t. 2000)...............................24

In re J.L.W., 570 N.W.2d 778 (Iowa Ct. App. 1997).....................................................................20

In re M.H., 333 Mont 286 (2006)............................................................................................13, 35

In re Marriage of Carney, 598 P.2d 36 (Cal. 1979)......................................................................27

In re Marriage of Lang, 668 N.E.2d 285 (1996)...........................................................................27

In re Maryia R., 1997 Conn. Super. LEXIS 886 15 (1997)...........................................................16

In re P.M., 221 Ill App 3d 93 (1991).......................................................................................14, 17

In re W.W. Children, 736 N.Y.S.2d 567 (N.Y. Fam. Ct. 2001).....................................................24

In Interest of Micah Alyn R. 202 W.Va. 400 (1998)......................................................................33

In the Interest of C.B., 611 NW2d 489 (Iowa 2000)......................................................................20

J.L.L v. Madison County Dept. of Public Welfare 628 N.E. 2d 1223 (1994)................................26

J.T. v. Ark Dep’t of Human Services, 947 S.W.2d 761 (Ark. 1997)........................................14, 18

Lincoln v. Lincoln, 247 N.E.2d 659 (N.Y. 1969)...........................................................................32

Maczaczyj v. New York, 956 F Supp. 403 (WDNY 1997).............................................................19

Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F3d 144 (2d Cir. 2013)........................8, 9, 10, 13

Matter of Hime Y., 52 N.Y.2d 242 (1981)...............................................................................29, 30

Matter of Montgomery, 311 NC 101 (1984)..................................................................................25

Nielsen v Nielsen, 207 Neb 141 (1980)...................................................................................22, 25 People v. Hannah, 887 N.Y.S.2d 140 (N.Y. App. Div. 2d Dept. 2009)..................................22, 32

  vii    

Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79 (2d Cir. 2004)................................................9

S.C. Dep't of Social Services v. Mother, 375 S.C. 276 (2007)...........................................10, 13, 14

School Bd. of Nassau Cty. v. Arline, 480 U.S. 273 (1987)............................................................12

State v. Jessica M., 191 W. Va. 302, 445 S.E.2d 243 (1994)........................................................31

Weinreich v. Los Angeles Cty. Metro. Transp. Auth., 114 F.3d 976 (9th Cir. 1997)....................9

Wilkinson v. Russell, 182 F.3d 89…………………………………………………………....22, 31

Zukle v. Regents of the Univ. of Cal., 166 F3d 1041 (9th Cir. 1999)................................10, 11, 15 CONSTITUTIONAL PROVISIONS: 28 CFR 36.104…….…….…….…….………………………………………………….……….15 28 C.F.R. § 35.130…………….…….…….…….…….…….…….……….…….…….…….13, 17 42 U.S.C.A §12101….………….…….……………….…….……………..…………………….9 42 U.S.C.A § 12102……………………………………………………………………..….……9 42 U.S.C.A §12131…….…….……………….…….……………….…….……………….…9, 10 42 U.S.C.A §12132….……………….…….……………….…….………………………...…5, 9 ADOPTION OF CHILDREN- FOSTER CARE, PL 105-89, November 19, 1997 111 Stat 2115…………….…….………….…….………….…….………….…….………….……..……24 STATUTES:

NS Social Services Law 384-b………………………………...…….…5, 9, 11, 14, 16, 19, 25, 26

NY Social Services Law 384-b………………………………………………………………24, 26

SECONDARY SOURCES: 3 Leg. Rts. Child Rev. 2D § 28:2 (2d ed.)………………………...……………………..23, 26, 31 David Shade, Empowerment for the Pursuit of Happiness: Parents with Disabilities and the Americans with Disabilities Act, 16 Law & Ineq. 153 (1998)……..…….…….……….…..14, 15

 

    1                                  

STATEMENT OF THE CASE

This case arises from the termination of Petitioner-Appellee’s parental rights. Record

(“R”) at 6. Pursuant to New Scotland Social Services Law § 384-b the New Scotland Family

Court terminated Appellee’s parental rights on August 4, 2014. Appellee brought forth a claim in

the State of New Scotland Family Court asserting (1) that the New Scotland County Department

of Social Services (“DSS”) violated her rights under the American with Disabilities Act

(“ADA”) when DSS denied her rehabilitative services tailored to her individualized needs, thus

failing to allow her to reunite with her son, Caleb; and (2) that reuniting with Caleb is in the

child’s best interests. R. at 6. On January 30th, 2015 the State of New Scotland Family Court

found that the ADA was not violated and that it is in Caleb’s best interest to remain in foster

care.

On February 13, 2015, the Third Appellate Division reversed the decision of the New

Scotland Family Court, finding that (1) Jennifer’s rights under the ADA were violated when DSS

failed to provide reasonable accommodations that would allow her to be reunited with Caleb; and

(2) Caleb’s best interests are not served by remaining in foster care. Id. at 18. On February 13,

2015, DSS appealed to this Court on the following certified questions: (1) “Whether the State of

New Scotland, Third Appellate Division correctly determined that there was a violation of the

Americans with Disabilities Act when the New Scotland Department of Social Services failed to

provide the Appellee with rehabilitative services specifically tailored to her individualized needs

in order to reunite the Appellee with her child;” and (2) “Whether the State of New Scotland,

Third Appellate Division, correctly determined that living with a parent who is terminally ill

instead of remaining in foster case, is in the best interests of the child.” See Notice of Appeal.

  2    

DSS respectfully requests that this Court reverse the decision of the Third Appellate

Division and find that Appellee’s rights were not violated within the meaning of the New

Scotland Social Services Law § 384-b and the ADA. DSS also requests that this Court reverse

the decision of the Third Appellate Division and find that Caleb’s best interests are served by

remaining with his foster care family and continuing to have visitations with Appellee.

Appellee, Jennifer L., is a thirty-five year old single mother who was diagnosed with

amyotrophic lateral sclerosis (“ALS”), a terminal illness. Her condition has rapidly worsened and

at present she cannot perform everyday functions. R. at 7. Prior to her hospitalization with ALS,

Appellee was employed and resided with her son in an area with a good school district, where

she was able to earn enough money to support her and her son Caleb. Id. Due to the rapid

progression of ALS Appellee became unable to maintain her employment and subsequently lost

her home.

Appellee sought help from the New Scotland Department of Social Services (DSS) who

provided Appellee and Caleb with an apartment, in a different school district, enrolled Appellee

in the Supplemental Nutrition Assistance Program (SNAP), and provided her with Medicaid as

well as Home Energy Assistance Program (HEAP). Id at 9. Moreover, given Appellee’s rapid

loss of motor skills, DSS additionally provided her with full-time nurses to provide in home care

twelve hours a day.

As time progressed, DSS’s range of services increased and diversified. DSS paid for

Caleb to attend a full-time daycare program, including transportation to and from school. The

daycare facility additionally provided Caleb with breakfast and lunch, while a nurse prepared

dinner at home. Id. Appellee’s loss of motor skills disabled her from preparing any meals for

Caleb, making further accommodations necessary. Appellee had her nurses purchase juice boxes,

  3    

bottles of water, and snacks that were easy for Caleb to open himself. Id. Appellee’s motor skills

including the ability to walk, use her fingers and arms, and form coherent sentences became

severely impaired. Id. at 10. Ultimately, due to the rapid succession of ALS, Appellee fell and

broke her hip requiring hospitalization. She was then placed in a nursing home where all parties

believed she would remain indefinitely. It was at this time that Caleb was placed in foster care.

Id. at 10.

Caleb moved in with the Smiths, a licensed foster care family with a 7-year-old son,

named Riley. Caleb visited Appellee multiple times a week at the nursing home. Caleb and

Riley quickly developed a brotherly relationship and are currently inseparable. Id. at 10. Since

the Smiths live in the same area where Caleb previously lived, Caleb was able to return to his

original school, allowing him to reunite with old friends. Id. The Smiths are Caleb’s primary

caregivers, Mrs. Smith prepares Caleb’s meals, bathes him, provides him with clean clothes, and

cares for him when he is unwell. Id. Caleb has also joined Riley’s soccer league where the two

play together on a regular basis. Mr. Smith assists Caleb with his homework. Ultimately, both

Mr. and Ms. Smith provide a loving household for Caleb, creating much needed stability through

this period of inevitable transition. Additionally, the Smiths are supportive of Caleb’s

relationship with his mother and have been very accommodating. Caleb is able to visit her as

much as possible.

After a significant passage of time, DSS moved to terminate Appellee’s parental rights.

Appellee did not contest the termination because she was unsure whether she would ever leave

the nursing home. Id. at 11. However, after eight months of intensive services, Petitioner was

released from the nursing home and moved back into her apartment where she remains fully

dependent on comprehensive in-home care. Id. Upon her release, Appellee sought reunification

  4    

with Caleb, and requested two additional full-time caregivers, solely to care for Caleb, in an

attempt to regain custody. Id.

In assessing whether Appellee can be reunified with Caleb, DSS performed an in-home

study and also considered Appellee’s physician reports. The in-home study found that Appellee

is currently unable to care for herself, and needs a minimum of 12 hours of in-home nursing care

a day. Id. at 12. Prior to hospitalization Appellee relied on Caleb or nursing staff to perform such

ordinary tasks as answering the door or getting a glass of water. Id. If Caleb were to return to the

home Appellee would be unable to take care of Caleb’s basic needs, such as bathing or clothing

him. The assessment found that Caleb would also be unable to leave the home as Appellee

cannot take him outside nor can she supervise him. Id.

Appellee’s physician report demonstrates that Appellee will very soon be placed on a

portable ventilator, as she will need assistance breathing and will be unable to eat or speak. Id.

The report further finds that Appellee will also experience severe atrophy throughout her body

and she will ultimately lose any control over muscular function. Id. Appellee’s prognosis states

that she has six months left to live and given the terminal nature of ALS there is no chance of

recovery. Id. at 13. After the in-home study, DSS concluded that it is in Caleb’s best interest to

stay with the Smiths. Id at 14.

Courts review questions of law, including questions of statutory interpretation, de novo.

See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 939 (1995). De novo review will

allow this Court to make an independent evaluation in order to clarify the meaning of

“reasonable accommodations” and parental “unfitness” under the New Scotland Social Services

Law §384-b. See Cooper Indus v. Leatherman Tool Grp., 532 U.S. 424, 425 (2001).

  5    

SUMMARY OF THE ARGUMENT The State of New Scotland, Third Appellate Division, incorrectly determined that

Appellee’s, rights were violated under the ADA. Appellee’s request for two additional full-time

caregivers to enable reunification with Caleb is not an accommodation within the scope or

purpose of the ADA. The Third Appellate Division also incorrectly concluded that the child’s

best interests were served by removal from his current stable foster care family. It is in Caleb’s

best interests to be adopted by the Smiths and to continue visitation with Appellee.

Section §12132 provides that “no qualified individual with a disability shall, by reason of

such disability...be denied the benefits of the services, programs, or activities of a public

entity…” 42 U.S.C.A. 12132. Pursuant to this section, “[t]he ADA requires [a] public entity to

make ‘reasonable accommodations’ to allow [a] disabled person to receive services or to

participate in [its] programs.” However with respect to reunification, where additional services or

programs will not cure the parental deficiencies the ADA is not violated if accommodations are

not made. In this case, Appellee is not a qualified individual as her request for accommodations

exceed the scope of the agency’s mandate. Further, additional services will not cure her parental

deficiencies, and thus are not required. Lastly, it is not within the best interests of the child to

return to his terminally ill mother.

Appellee is not an “otherwise qualified” individual eligible to receive reasonable

accommodations. The NSSSL requires that reasonable accommodations be provided when a

positive, nurturing, parent-child relationship is possible. NSSSL 384-b (1). R. at 23. When DSS

finds that this relationship is not possible, the best interest of the child must be served. Presently,

due to her terminal illness, Appellee is unable to care for her child. Her debilitating physical

  6    

condition and rapid loss of speech makes her incapable of providing even minimal care for

Caleb.

Second, if Appellee is found to be an “otherwise qualified” individual, the services she

requests would create an undue burden on DSS and substantially alters NSSSL. By nature,

reasonable accommodations will not fundamentally alter or unduly burden public agencies. In

this case, adhering to Appellee’s request would not encourage a relationship with her son, but

would instead provide a substitute parent. DSS does not exist to provide substitute parents and

therefore providing Appellee with two full-time caregivers would fundamentally alter DSS’s

program and unduly burden the agency.

Thirdly, it is in Caleb’s best interest to remain with his foster family, rather than being

returned to his terminally ill mother. Appellee is unable to adequately care for Caleb due to her

medical illness presently and in the foreseeable future, therefore further reunification services are

not warranted. It is in his best interest to remain with his foster family while continuing visitation

with his mother. Displacing Caleb again will result in a major disruption to the life that he has

now adjusted to. The child is best served by remaining in a stable home where his basic needs

are being provided for and he will still have the ability to spend a large amount of time with his

mother.

Lastly, judicially expanding the definition of reasonable accommodations would

undermine public policy objectives. This expansion would require agencies to undergo major

transformation and reallocation of funds. It would also open the door to numerous claims within

the court where parents in same or similar situations would be entitled to receive substitute

parents. Moreover, the best interests of the child are of utmost priority and importance.

  7    

If the this court found that providing accommodations that essentially replaced a parent

with a caregiver were reasonable, then this court would be placing parental rights before the best

interests of the child. Denying Appellee the accommodations she requests, would also enforce

the legislative intent of NSSSL 384-b and allow discretion to remain within the legislature

regarding reasonable accommodation.

This court should therefore reverse the Third Appellate Division’s ruling allowing Caleb

to be adopted into his current foster care family and maintain visitation with his mother.

  8    

I. THE THIRD APPELLATE DIVISION INCORRECTLY DETERMINED THAT THE DEPARTMENT OF SOCIAL SERVICES VIOLATED APPELLEE’S RIGHTS BY FAILING TO CREATE A REUNIFICATION PLAN THAT WOULD ENABLE HER TO BE REUNITED WITH HER SON.

Petitioner-Appellee, Jennifer L.’s rights were not violated under Title II of the Americans

with Disabilities Act (hereinafter “ADA”) when the New Scotland Department of Social

Services (hereinafter “DSS”) did not provide her with two additional caretakers as a part of

reunification services. To establish a violation of Title II, a party must establish: (1) that [s]he is

a "qualified individual" with a disability; (2) that [s]he was excluded from participation in a

public entity's services; and (3) that such exclusion or discrimination was due to his [her]

disability." Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F3d 144, 153 (2d Cir. 2013). Here,

Appellee does not qualify to raise a claim under the ADA because she does not satisfy the first

element, as she is not a “qualified individual,” for three reasons: (1) Appellee does not meet the

essential eligibility requirements; (2) her request for additional services would, if granted,

“fundamentally alter” the nature of the social services program; and (3) the services requested

would create an “undue burden” for the agency. Moreover, with respect to reunification, the

ADA is not violated when accommodations are not made if additional services or programs will

not cure Appellee’s parental deficiencies.

Finally, granting Appellee’s request would have disastrous consequences for public

policy as it would override the child’s best interest, in addition to raising the level of state

involvement, costs, and responsibility beyond the intended scope of both the ADA and DSS.

This court should therefore reverse the Third Appellate Division’s finding that Appellee’s rights

were violated under the ADA when DSS did not create a reunification plan granting Appellee’s

request for two full-time caregivers.

A. Appellee Is Not A Qualified Individual Within The Meaning Of The ADA And Is Not Entitled To Reasonable Accommodation.

  9    

Appellee fails to establish she is a “qualified individual” within the meaning of the ADA

statute. Appellee does not meet the essential eligibility requirements of NSSSL §384-b as she

is unable to contribute to a positive, nurturing parent-child relationship. Even if the court found

that Appellee was capable of contributing to a positive parent-child relationship, granting

Appellee’s request would constitute a fundamental alteration of NSSSL §384-b and create an

undue burden on the New Scotland Department of Social Services.

With regard to establishing elements, neither party disputes that Appellee suffers from a

severe disability, as Appellee has been diagnosed with Amyotrophic Lateral Sclerosis

(hereinafter “ALS”), a degenerative nerve disorder that significantly inhibits muscle movement,

leaving no question to the legitimacy of her disability.1 Further, it is undisputed that Appellant is

a public entity within the scope of the ADA.2

To properly establish a claim of discrimination under the ADA, first, Appellee must

prove that [s]he is a "qualified individual" with a disability. Mary Jo C., 707 F3d at 153; Powell

v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 89 (2d Cir. 2004); Weinreich v. Los Angeles Cty.

Metro. Transp. Auth., 114 F.3d 976 978 (9th Cir. 1997).

1. Appellee does not meet essential eligibility requirements of the NSSSL in order to properly establish a claim under the ADA.

The ADA was enacted to give disabled individuals an equal opportunity to enjoy

independent living and economic self-sufficiency. 42 U.S.C.A §§ 12101 et. seq. R. at 14. Under

42 U.S.C.A. §12132, “no qualified individual with a disability shall by reason of such disability

be denied the benefits of the services, programs or activities of a public entity .” 42 U.S.C.A.                                                                                                                1  To meet the definition of a disabled person Appellee must make a threshold showing that she suffered a “physical or mental impairment that substantially limits one or more major life activities, including but not limited to caring for oneself, eating, walking, standing, speaking, communicating, and working.” 42 U.S.C.A. §§ 12102(1)(A), (2)(A). R. at 14.  2  Title II's definition section states that "public entity" includes "any State or local government," and "any department, agency, [or) special purpose district." 42 U.S.C.A §§ 12131(1)(A), (B).  

  10    

§12132, Olmstead v. L. C. by Zimring, 527 U.S. 581, 590 (1999)[emphasis added]. A qualified

individual is "an individual with a disability who, with or without reasonable modifications to

rules, policies, or practices, the removal of architectural, communication, or transportation

barriers, or the provision of auxiliary aids and services, meets the essential eligibility

requirements for the receipt of services or the participation in programs or activities provided by

a public entity." § 12131(2). S.C. Dep't of Soc. Servs. v. Mother, 375 SC 276, 286 (Ct App 2007)

[emphasis added]. A "qualified individual" is someone who meets the essential eligibility

requirements of the statute with or without reasonable accommodation. 42 U.S.C.A §12131(2).

The ADA regulations indicate that "essential eligibility requirements" are those

requirements without which the "nature" of the program would be "fundamentally alter[ed]."

Mary Jo C., 707 F3d at 158; Zukle v. Regents of the Univ. of Cal., 166 F3d 1041, 1051 (9th Cir.

1999) (The Ninth Circuit found that making further accommodations to a school program would

lower the standard and thereby fundamentally alter it.) The Second Circuit has reasoned that

essential eligibility requirements, unlike "rules, policies, [and] practices," 42 U.S.C. § 12131(2),

are not subject to reasonable modification or waiver, although the statute may indicate otherwise.

Mary Jo C. 707 F3d at 160. (The fact that the State itself waives the deadline in the enumerated

circumstances strongly suggests that the filing deadline is not "essential.")

In PGA Tour, Inc. v. Martin, the court found the accommodation requested was

reasonable and would not cause a fundamental alteration to the program. The plaintiff, a

professional golfer suffering from a circulatory disorder, asserted a violation of the ADA when

the association disallowed him from using a golf cart while competing. His request would alter

the ‘walking rule’ in which competitors must walk from hole to hole. There, under Title III of the

ADA, the Supreme Court held that the walking rule, was not an essential eligibility requirement

  11    

of the game of golf, and that making reasonable accommodation to it did not cause a

fundamental alteration to the game. The court further reasoned that the walking rule was not an

“indispensable” feature nor was it an “essential attribute” to the actual game of “shot-making.”

PGA Tour, Inc. v Martin, 532 US 661, 664 (2001).

In Zukle, a student did not meet the essential eligibility requirements of an academic

program after many reasonable accommodations were made to enable her success. The plaintiff

had a learning disability that no amount of accommodation could assist, without lowering the

standards of the program and fundamentally altering it. Therefore, she did not meet the essential

eligibility requirements necessary to participate with or without reasonable accommodation.

Zukle, 166 F3d at 1051.

Here, Appellee is not a “qualified individual” under the meaning of the ADA statute

because she cannot satisfy the essential eligibility requirements with or without reasonable

accommodations. NSSSL 384-b states that where a “positive, nurturing parent-child relationship

no longer exists, a permanent alternative should be sought for the child.” NSSSL 384-b (1). R. at

23. Further, with regard to reunification, the agency shall make “every reasonable effort to assist,

develop and encourage a meaningful relationship between the parent and child, including a

rehabilitative services plan to enable the parent and child to successfully reunite.” R. at 23-24.

The statute presents a threshold issue, which needs to be addressed prior to the court

considering whether Appellee's requests are reasonable accommodations. According to NSSSL

384-b, a parent must at least be able to contribute to a positive, nurturing parent-child

relationship or with regard to reunification, be able to contribute to a meaningful relationship

with appropriate services. Appellee does not satisfy or establish either of these requirements.

NSSSL 384-b (1). R. at 23-24

  12    

Appellee has been given a prognosis of approximately six months to live, and within

three months is expected to lose her ability to breathe on her own, eliminating her ability to

speak. The Supreme Court has held that medical testimony should be given great weight. School

Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 283 (1987) (Courts normally should defer to the

reasonable medical judgments of public health officials.) Like PGA, it can argued that the ability

to walk is not an essential attribute of parenting, however the ability to supervise, bathe, feed and

clothe a child are all essential attributes of parenting. When the physical aspects of parenting

cannot be met a parent must at least be able to provide direction or guidance vocally. Thus,

Appellee’s lack of ability to care for her child is an indispensable feature. The most basic needs

of the child render her incapable of satisfying the basic eligibility requirements.

Unfortunately, since Appellee is incapable of meeting any of the physical requirements of

parenting, her contribution to a positive, nurturing, or meaningful relationship with her child

would be vocal at best. Although Appellee has not yet lost this ability to speak, Appellee does

not meet the essential eligibility requirements of the NSSSL with or without reasonable

accommodation. DSS cannot create a rehabilitative services plan for her and Caleb to

successfully reunite because Appellee’s terminal illness prevents rehabilitation. If Appellee

cannot parent, she cannot be provided with reasonable accommodations to remedy that

inadequacy. NSSSL is clear that when a positive, nurturing relationship no longer exists, the

state must invest in the child’s best interest, and here, even with full time caregivers Appellee is

unable to contribute to a positive, nurturing, or meaningful parent-child relationship because of

her rapidly failing health. NSSSL 384-b. R. at 23 Like Zukle, Appellee cannot care for her child

with or without services.

2. Providing two additional caretakers for Caleb would constitute a fundamental alteration to the nature of NSSSL 384-b (3).

  13    

Appellee’s request for services, if granted, would cause a fundamental alteration to

NSSSL, and therefore is not a reasonable accommodation under the ADA.

The ADA does not require public entities to make fundamental alterations to their

programs. A public entity shall make reasonable modifications in policies, practices, or

procedures when the modifications are necessary to avoid discrimination on the basis of

disability, unless the public entity can demonstrate that making the modifications would

fundamentally alter the nature of the service, program, or activity. 28 C.F.R. §

35.130(b)(7)(1998); Mary Jo C., 707 F3d at 153; In re M.H., 333 Mont 286, 293, (2006) (The

District Court stated "[s]ervices were provided to these parents, but the accommodations that

would be necessary to keep these children safe would represent a fundamental alteration in

services [DPHHS] provides and, therefore, is beyond the scope of the ADA even if the Act

applied in this case). The Second Circuit has posited that the ultimate inquiry in a fundamental

alteration analysis is to determine the extent to which defendants are required by anti-

discrimination statutes to modify their programs to meet the needs of the disabled person. Doe v.

Pfrommer, 148 F3d 73, 83 (2d Cir. 1998). The court in Doe further states that the central purpose

of the ADA is to assure that disabled individuals receive “even-handed” treatment in relation to

the able-bodied. Id.

Courts can require that reasonable accommodations be provided to the parent for the

purposes of facilitating a parent-child relationship, but not to replace the parental figure with a

caretaker. In Re Chance Jahmel B., 723 N.Y.S.2d at 640. (Holding that a full-time caregiver for

developmentally disabled parents was not in the son’s best interest nor could it be reasonably

provided.); S.C. Dep’t of Social Services, 375 S.C. at 286 (Finding that the purpose of the [ADA]

was "to insure that benefits are not denied based upon a handicap," rather than "[to] provide

  14    

parental training for mentally deficient parents.) Courts need to consider whether providing

home attendants would assist in parenting the child, or whether the attendant would become a

substitute parent. Mandating attendant care for a parent who will never be able to raise his or her

child in any meaningful way is not a "reasonable modification" under the ADA, and should not

be required of a state. See David Shade, Empowerment for the Pursuit of Happiness: Parents

with Disabilities and the Americans with Disabilities Act, 16 Law & Ineq. 153, 211 (1998). In re

P.M., 221 Ill App 3d 93, 96 (1991) (Where the court held that although there were services that

might help a mother keep her baby, such as a live-in, surrogate mother, these services do not

exist and the State has no duty to create them for respondent's sole benefit.)

In In re Chance Jahmel B. the court found that extensive services were already being

provided to a father for his mental disability, and an additional full time caregiver to care for his

child could not be reasonably provided. In Re Chance Jahmel B., 723 N.Y.S.2d at 640. Courts

have found reasonable accommodation to include psychological evaluations, therapists,

prescribed medications for mental illnesses, parenting classes, and access to family therapy. J.T.

v. Ark Dep’t of Human Services, 947 S.W.2d 761, 768 (Ark. 1997), S.C. Dep’t of Social Services,

375 at 288. (Finding services such as counseling and therapy for the disabled parent to be

reasonable accommodations) Social services supplied by the state are not intended to provide

substitute parents within the home.

NSSSL 384-b (3) states that DSS must make every reasonable effort to “assist, develop

and encourage a meaningful relationship between the parent and the child even after

termination...using appropriate services to enable the child and mother to successfully reunite.”

[emphasis added] R. at 24. A plain reading of the statute allows DSS to aid in a parent and

child’s reunion, not replace parents in the event they are unable to fulfill what is required of

  15    

them. Appellee’s requested accommodations are beyond the scope of what courts have

recognized as “reasonable accommodations” under the pertinent statute and would result in a

fundamental alteration of the services provided by DSS. Although the ADA allows for

reasonable accommodation to be made to NSSSL, the ADA does not expressly grant permissive

use of full time caretakers who would essentially act as substitute parents. Therefore, Appellee’s

request for additional attendants constitutes a fundamental alteration of the Department of Social

Services statute.

3. Providing two additional caretakers for Caleb would constitute an undue burden under NSSSL 384-(3).

Appellee’s request for two additional caregivers would unduly burden New Scotland

DSS. An agency is unduly burdened when the cost of requested accommodations outweigh the

significance of the deprivation to the individual. 28 CFR 36.104; David Shade, Empowerment for

the Pursuit of Happiness: Parents with Disabilities and the Americans with Disabilities Act, 16

Law & Ineq. 153, 167.

ADA regulations identify several factors to be considered when there is an “undue

burden” defense, such as: the nature and cost of the proposed alteration, the type of work the

agency performs, effect on expenses and resources, and the overall financial resources of the

agency. 28 CFR 36.104. The Supreme Court has shown deference to state legislative statutes in

determining the scope of accommodation required for those who qualify under the ADA. Blum v.

Bacon, 457 U.S. 132, 141 (1982). ("The interpretation of [the] agency charged with the

administration of [this] statute is entitled to substantial deference.") (cited by Helen L. v.

DiDario, 46 F3d 325, 331-332 (3d Cir. 1995)). Therefore, when analyzing an undue burden

claim, the court has held that determining whether to impose court-ordered services is a fact-

sensitive inquiry, which must consider the totality of the circumstances. Zukle, 166 F.3d at 1048.

  16    

Analyzing the totality of circumstances in this case demonstrates that even after costly

accommodations, Appellee is unable to provide minimally acceptable care for Caleb. Similar to

In re Maryia, where Social Services made many attempts to engage and rehabilitate the parent,

DSS in this case has already made many efforts to accommodate Appellee in order to keep Caleb

in the home with her. See In re Maryia R., 1997 Conn. Super. LEXIS 886 (Conn. Super. Ct. Apr.

1, 1997). Prior to termination DSS provided Appellee with daycare services including

transportation and meals, in addition to dinner prepared by Appellee’s in home nurses. Even

further adaptations were made when Appellee lost more of her mobility. Appellee’s nurses

purchased bottles of water, single serve containers of orange juice, apple juice, and milk, all of

which made it possible for Caleb to serve himself without his mother, thus prolonging his stay

with her. R. at 9. The new services Appellee is requesting exceed all the prior accommodations

previously provided.

Although Appellee’s deprivation is substantial as it results in a separation from Caleb, the

cost of reunification outweighs this deprivation. In order to reunify this one family DSS would

be required to offer burdensome resources including two extra full time nurses to care for the

child, in addition to the in-home care Appellee already receives. These services are also

unsustainable for the agency, as the state would be unable to assign multiple nurses and full time

caregivers to all similar cases. Further, according to NSSSL §384-b(1)(a), the state’s first

obligation is to prevent family break-up and encourage reunification. The rest of the statute

indicates that this obligation can be outweighed by the child’s best interests when necessary, to

ensure that the child has a “normal family life” and “permanent home.” Here, granting two full

time caregivers would achieve neither goal. NSSSL §384-b(1)(a). R. at 23.

  17    

As a state funded agency, DSS does not have unlimited resources or the financial breadth

to grant parents every service requested to ensure family reunification. Due to funding

limitations, the unfortunate reality is that there will be numerous situations in which DSS will be

unable to assist parents in reuniting with their children. For example, Illinois Appellate Court

recognizes, “The sad reality is that some are less fortunate than others, so less fortunate that they,

through no fault of their own, cannot care for a child.” In re P.M., 221 Ill App 3d at 95 (1991).

The undue burdening of public agencies also takes shape in the misallocation of physical

resources. Assigning two full time caregivers to one family necessarily takes away from

resources that would otherwise be split more evenly amongst equally deserving families in need

of part time assistance. Here, this uneven allocation of resources would be used to support a

parent with a terminal illness, a parent who has no intent or ability to regain permanent custody

over her child. Providing the full-time services that Appellee requests would constitute an undue

burden on the New Scotland Department of Social Services. Therefore, Appellee does not meet

the burden of proving that she is an “otherwise qualified” individual because she does not meet

the essential eligibility requirements, her request fundamentally alters the statute, and unduly

burdens the agency.

However, even if this court found she was an “otherwise qualified” individual, Appellee

has the burden of proving the other two elements. In order to establish a valid ADA claim

Appellee must also demonstrate that she was either, excluded from participation in or denied

benefits of, some public entity’s services, programs, or activities, or was otherwise discriminated

against by the public entity by reason of her disability. 28 C.F.R. § 35.130(b)(7). Here, there is

no question that Appellee was denied benefits. However, the court requires the plaintiff to make

a showing that DSS failed to offer certain services or that it offered services that were not as

  18    

effective in affording the plaintiff equal opportunity to rehabilitate and reunify with the

plaintiff’s children on the basis of the plaintiff’s disability. In re Angel B., 659 A2d 277, 279

(Me. 1995) [emphasis added]. (The court held the parent failed to demonstrate her disability was

the reason that the Department of Human Services failed to offer her certain services, or offered

her services that were not as effective in affording her equal opportunity to rehabilitate and

reunify with her children.)

New Scotland DSS’s decision not to grant the use of two in-home caretakers in addition

to Appellee’s two nurses was clearly not a result of discrimination based on her disability. DSS

has provided Appellee with extensive accommodations in order to keep her and her son together

for as long as possible. Her disability was a factor in determining that services would not be

provided, but when a positive, nurturing parent-child relationship is no longer possible even with

accommodation from the ADA, the child’s best interests outweigh the parent’s interest.

Appellee was denied accommodation not because of her disability, but because even with the

accommodations Caleb’s best interests will not served. Therefore, Appellee has not made a

showing that the denial of full-time caregivers was as a result of discrimination based on her

disability.

B. Providing Additional Services Would Not Cure The Plaintiff’s Parental Deficiencies.

Providing two additional caretakers would not cure Appellee’s inability to engage in a

meaningful relationship, therefore even if this court found the accommodation to be reasonable,

the ADA is not violated. The court has found that where additional services or programs will not

cure the parental deficiencies, the ADA is not violated if accommodations are not made. JT v.

Ark, 947 S.W. 2d at 768. Additionally, the services that DSS is required to provide have to

address the deficiencies or inadequacies of the disabled individuals, rather than provide parenting

  19    

services. In Re Chance Jahmel B., 723 N.Y.S.2d at 640. Maczaczyj v New York, 956 F Supp.

403, 409 (WDNY 1997) (The court held that the severe nature of the plaintiff’s handicap, rather

than the defendant’s failure to offer reasonable accommodations, was limiting the plaintiff’s

ability to achieve his educational objectives).

In the present case, the record reflects that DSS has provided a breadth of services in an

attempt to meet Appellee’s disability needs. Prior to Appellee’s parental rights being terminated,

and after her diagnosis with ALS, DSS provided Caleb and Appellee with housing. R. at 9. DSS

also provided Appellee with the Supplemental Nutrition Assistance Program (SNAP), Medicaid,

and with the Home Energy Assistance Program (HEAP). Id. Appellee was provided nurses to

assist her in her home. Id. Additionally, in order to facilitate and continue Appellee’s

relationship with Caleb, DSS paid for Caleb to attend a full-time daycare program that included

transportation to and from the facility. Id. All of these services supplemented Appellee’s actual

ability to function, and is evidence of DSS’s attempts to make every reasonable effort to assist,

develop, and encourage a meaningful relationship between Appellee and her child in accordance

with NSSSL §384-b (3).

Despite Appellee’s undoubted love for her son, there no longer exists a viable parent-

child relationship between her and Caleb. DSS sent a social worker to Appellee’s home in efforts

to assess and evaluate whether a reunification plan could be created. The social worker found

that Appellee is unable to care for herself, finding that she was unable to even answer the door or

push the button on the buzzer. Appellee does not have the ability to take Caleb outside to play or

monitor his actions. R. at 12, ¶¶ 1-4. Furthermore, Appellee’s doctor reports that she will

continue to get progressively worse as time goes on, soon losing the ability to speak and breathe

on her own. Her doctor has given her a prognosis of approximately six months to live. R. at 13, ¶

  20    

7. Appellee and her son would “reunite” under the barest definition of the term, but it would not

be successful by any means, as Appellee will be bedridden and unable to speak within three of

the six months she is estimated to live.

The reunification services being requested are not being denied because a better home

exists, as the Third Appellate Division wrongly asserts. The exhaustive reunification services are

being denied because the accommodations requested are beyond the reach of the ADA’s

reasonable accommodation and Appellee is unable to parent even with the assistance of two

additional caretakers.

C. Allowing DSS To Provide Full Time Caregivers As A Part Of Reasonable Accommodation Will Have Deleterious Effects On Public Policy And Such Accommodation Would Override The Child’s Best Interest.

The NSSSL’s express intent is to provide services, which further the best interest of the

child. Providing Appellee with two additional caregivers would be in direct violation of this

intent because Caleb’s best interests are to stay in a stable and normal home

environment. Further, granting the full time caregivers would set a precedent that increases state

involvement, exceed budgets, expands the scope of services provided by DSS, and permits a

broader reading of reasonable accommodation under the ADA.

The Adoption and Safe Families Act of 1997, shifted the focus of reunification by

placing greater emphasis on the health and safety of the child, and prioritizing finding a

permanent home for a child as early as possible. In the Interest of C.B., 611 NW2d 489, 493

(Iowa 2000). At some point, the rights and needs of the child rise above the rights and needs of

the parent. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997). (Cited by In re Interest of

A.L., 2002 Iowa App. LEXIS 417, 4 (Iowa Ct. App. Apr. 24, 2002)).

The State of New Scotland Family Court makes a compelling policy argument,

articulating that forcing DSS to either provide substitute caregivers to “unfit” parents, or risk

  21    

violating the ADA, would require in-home caregivers to be provided to the detriment of the best

interests of the child. This policy argument is two-fold; it addresses both the preventable undue

burden on the Department of Social Services as well as the primacy of the child’s best interest.

A state does not violate the ADA when it makes public policy decisions based on

legitimate non-discriminatory criteria. In the present case, the State of New Scotland is denying

Appellee’s request for services for legitimate non-discriminatory reasons. The use of full-time

caregivers would cause a significant strain on the agency and its resources, and would

fundamentally alter the nature of the NSSSL. The inevitable reality of providing a full-time

caregiver is that he or she will essentially function as a foster parent while in the home. The state

already has a functioning foster care system in place. Providing additional full-time at-home

attendants would constitute an undue burden on the agency forcing it to incur additional costs

and responsibilities. Therefore, though maintaining Caleb’s foster care placement deprives

Appellee of extra time with her son, the high cost of accommodations cannot be justified when

visitations provide Appellee with a less burdensome way to spend time with Caleb.

While Appellee has an emotionally compelling case, her request is not practical.

Upholding the Third Appellate Division’s decision would make courts vulnerable to a flood of

claims from parents in the same or similar circumstances demanding entitlement to substitute

parents. Upholding Appellee’s request would lead to a slippery slope, creating an astronomic

drain on agency resources. This potential decision will undoubtedly increase budgetary needs

and cause ripple effects across other state services. The court has stressed that the legislature be

given deference to determine the scope of services, and feasibility cannot be ignored in making

this determination.

  22    

II. THE THIRD APPELLATE DIVISION INCORRECTLY DETERMINED THAT IT IS IN THE CHILD’S BEST INTERESTS TO BE REUNITED WITH HIS TERMINALLY ILL MOTHER INSTEAD OF ALLOWING HIM TO REMAIN WITH HIS FOSTER CARE FAMILY.

The Third Appellate Division incorrectly ruled that it was in the child’s best interest to

live with a terminally ill parent instead of remaining in a stable foster care home. The Supreme

Court has held that parents have a constitutionally protected liberty interest in the care, custody,

and management of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982). However, this

interest is counterbalanced by the compelling governmental interest in the protection of minor

children, particularly in circumstances where the protection is considered necessary as against

the parents themselves.” Wilkinson v. Russell, 182 F.3d 89, 104, cert. denied 528 U.S. 1155, 120

S. Ct. 1160, 145 L.Ed.2d 1072. People v. Hannah, 887 N.Y.S.2d 140, 141 (N.Y. App. Div. 2d

Dep’t. 2009) Where there is a showing of abandonment, neglect, or unfitness the State has the

right to separate parents from their children. Stanley v. Illinois, 405 U.S. 645, 652 (1972) As a

result, when a parent is unfit or has forfeited their parental rights, a court can deprive that parent

of custody. Nielson v. Nielson, 296 N.W.2d 483, 486 (Neb. 1980)

Here, remaining with his foster family is in Caleb’s best interest because Appellee is unfit

parent due to her rapidly failing health, and she is unable to presently and for the foreseeable

future adequately care for Caleb. Additionally, Appellee has forfeited her custody rights and

reunification services are warranted only in the form of visitation with her child.

Further, a best interests analysis requiring a fact specific inquiry into a number of factors,

reveals that Caleb’s foster family best serves his needs. Therefore, we respectfully request that

this court reverse the Third Appellate Division’s finding, and instead uphold the Family Court

decision, which enables Caleb to stay in a stable home, until his adoption with the Smiths is

finalized.

  23    

A. Appellee Is Not Entitled To Further Reunification Services Because She Is Unable--Due To Her Medical Illness--To Presently And For The Foreseeable Future Adequately Care For Her Child.

The State has a compelling interest in the welfare of minor children and has authority to

terminate parental rights under certain limited circumstances, pending a finding that termination

is in the best interest of the child. Blair v. Supreme Court of State of Wyo., 671 F.2d 389 (1982).

In termination of parental rights proceedings, the evidence used to support a finding of unfitness,

in order to warrant a termination, must be clear and convincing. Santosky, 455 U.S. at 753. A

“clear and convincing evidence” standard, “adequately conveys to the fact-finder the level of

subjective certainty about his factual conclusions necessary to satisfy due process. “A

determination of the precise burden equal to or greater than that standard is a matter of state law

properly left to state legislatures and state courts.” Id. at 769.

Though the procedure varies state to state, most states utilize a two-step process in

terminating parental rights. First, the State must establish at least one statutory ground for

termination by clear and convincing evidence. Once the State has met its statutory burden of

proof, parental rights must be terminated only if it is found to be in the best interest of the child.

3 Leg. Rts. Child. Rev. 2D § 28:2 (2d ed.). The statutory ground focuses on the state of the

parent in analyzing whether the parent is able to provide for the child in terms of food, care,

shelter, and availability of future provisions. In finding what is in the child’s best interests, the

state fulfills their obligation in protecting the child with respect to parental rights. 3 Leg. Rts.

Child. Rev. 2D § 28:2 (2d ed.). See In re Anthony V., 12 Neb. App. 567, 680 N.W.2d 221 (2004).

(Before parental rights may be terminated, evidence must clearly and convincingly establish the

existence of one or more statutory grounds permitting termination, in addition to a finding that

the termination is in juvenile's best interests.)

  24    

According to the Adoption and Safe Families Act of 1997, federal legislation regulating

many aspects of adoption, foster care, and parental reunification, “the child’s health and safety

shall be the paramount concern” when determining reasonable efforts to be made towards

reunifying a child with his or her parent. ADOPTION OF CHILDREN—FOSTER CARE, PL

105–89, November 19, 1997, 111 Stat 2115.

New York offers case law, which is persuasive because as addressed above, §384(b) of

New York’s Social Services Law is substantially similar to that of the New Scotland Social

Services Law. N.Y. Soc. Serv. Law §384-b (McKinney). One key difference is the addition of

“medical illness” as a statutory ground to find “unfitness” resulting in termination of parental

rights. Under New York law once a finding of unfitness based on mental illness or

developmental disability is established by clear and convincing evidence, the social services

agency is no longer required to provide reunification services. See In re Jason Anthony S., 717

N.Y.S.2d 197, 198 (N.Y. App. Div. 2d Dep’t. 2000). (Holding that reasonable efforts to reunite

family were unnecessary where mental illness was found as grounds to terminate parental rights).

In re W.W. Children holds that the respondent must prove unfitness warranting termination of

parental rights and an end to reunification services due to mental retardation (here medical

illness) by clear and convincing evidence. Additionally respondent must demonstrate that the

child would risk neglect if returned to Appellee. In re W.W. Children, 736 N.Y.S.2d 567, 578-79

(N.Y. Fam. Ct. 2001). Here that burden is easily satisfied.

1. Further reunification services are improper because Appellee is presently “unfit” to parent due to her terminal illness.

Prior to Appellee’s long term hospitalization due to her terminal illness the Department

of Social Services made comprehensive efforts to accommodate her and assist her in being able

to parent her child. DSS provided her with a plethora of benefits, full time daycare for Caleb, and

  25    

in home assistance. R. at 9. Further reasonable efforts to reunify are not required because

Appellee is unfit to parent her child now and in the foreseeable future due to her terminal illness.

As cited in the Third Appellate Division decision, a court should not deprive a parent of custody

unless it is shown that the parent is, “unfit to perform the custody duties imposed by the

relationship, or has forfeited that right.” Nielson v. Nielson, 296 N.W.2d 483, 486 (Neb. 1980).

R. at 21. Pursuant to New Scotland Social Services Law § 384-b(2)(b), terminating parental

rights can be properly granted upon a finding that a parent is “unable—due to mental or medical

illness—to presently and for the foreseeable future adequately care for the child.” New Scotland

Social Services Law §384-b(2)(b), R. at 23.

Here, Appellee was unfit at the time DSS moved to terminate rights and at present

continues to be unfit to raise her child. Appellee not only satisfies the Nielson standard,

establishing a proper finding of parental unfitness, but she voluntarily forfeited her parental

rights as well. Appellee’s voluntary forfeit of her parental rights is alone, enough to constitute a

proper termination of rights. The termination was also valid because Appellee was in the hospital

for an indefinite period of time, establishing unfitness in the present and foreseeable future, to

perform the necessary parental duties.

Although by no fault of her own, Appellee is unable to care for Caleb due to the nature of

her disability. The Third Appellate Division improperly asserted that in order to find “unfitness”

a parent must abandon her child or manifest some form of culpable behavior. On the contrary, a

parent need only be incapable of performing the basic duties necessary to adequately care for a

child. See In re Jacobs 433 Mich. 24 (1989). (Holding that it is unnecessary to show culpable

neglect in order for a court to validly exercise jurisdiction over a child under a neglect statute);

See also Matter of Montgomery, 311 NC 101 (1984). (Holding that the purpose of terminating

  26    

parental rights is not to punish parents but instead to protect the children involved); See also

J.L.L v. Madison County Dept. of Public Welfare 628 N.E. 2d 1223 (1994); (Holding that it is

not necessary to show parental fault in order to terminate rights because determining factors are

about what is in the best interest of the child).

Though it varies state to state, there are several grounds under which termination of

parental rights is widely held as warranted, including extreme parental disinterest, failure of

parent to remedy the conditions which caused the separation, extreme or repeated neglect or

abuse, parental incapacity, and extreme deterioration of the parent-child relationship. 3 Leg. Rts.

Child. Rev. 2D § 28:2 (2d ed.). In the present case Appellee is unfit to parent by reason of

incapacity. Here, by clear and convincing evidence, Appellee cannot now or in the foreseeable

future, provide adequate care for her son and therefore it is in the best interests of the child to

continue in foster care placement, where he is said to be thriving. R. at 10.

Addressing the best interests of the child with a terminally ill parent is a matter of first

impression before this court. New York Social Services Law §384 (b) provides a ground for

termination which is substantially similar to the NSSSL §384(b) stating that when, “the parent or

parents...are presently and for the foreseeable future unable, by reason of mental illness or mental

retardation, to provide proper and adequate care for a child…” N.Y. Soc. Serv. Law § 384-b

(McKinney). NSSSL §384(b) differs in that it also includes medical illness. New York cases

interpreting “unfitness” by reason of mental illness and developmental disability are instructive

because terminal illness, like developmental disability and mental illness, often times render a

parent incapable of meeting the basic requirements of parenting as a result of his or her

condition.

  27    

Additionally, often cited California Supreme Court case In re Marriage of Carney,

addresses unfitness specific to the context of physical disability. See Carney, 598 P.2d 36, See

Doe v. Roe, 526 N.Y.S. 2d 718, 726 (N.Y. Sup. Ct. 1988); Hatz v. Hatz, 455 N.Y.S.2d 535, 536

(N.Y. Fam. Ct 1982) aff’d, 468 N.Y.S.2d 943 (N.Y. App. Div. 3d Dep’t. 1983). It is

impermissible for a court to rely on a parent’s disability as prima facie evidence of parental

unfitness or as evidence of harm to the child, instead the court must view “the person with a

disability as an individual and the family as a whole.” In re Marriage of Carney, 598 P.2d 36, 42

(1979). Court must analyze the totality of the family condition to see if the parent’s disability

will have a “substantial and adverse effect on the best interest of the child.” Clark v. Madden,

725 N.E.2d 100, 105 (Ind. App. 2000). In re Marriage of Lang, 668 N.E.2d 285, 288–89 (1996).

The Carney Court used the following factors to measure substantial and adverse effects: (1)

parent’s actual and potential physical capabilities; (2) adaptability and management of disability;

(3) and other familial support. In re Marriage of Carney, 598 P.2d 36, 42. (1979).

Beginning with the first factor, Appellee’s actual and potential physical capabilities

demonstrate that she is incapable of providing for the basic needs of her son. At the time DSS

moved to terminate parental rights Appellee was in a nursing home under constant care. Prior to

hospitalization Appellee was unable to prepare meals for her son. R. at 9. Appellee was in the

process of losing motor function, use of her fingers and arms, and the ability speak. She was

unable to walk without a walker. R. at 9-10.

Currently, Appellee is out of the hospital and back at home where she is unable to care

for herself. Appellee is wheelchair bound and needs at minimum 12 hours of care per day. She

cannot answer the door, cannot bathe her son and cannot supervise him in the outdoor area where

they live, making it impossible for him to simply go outside and play. Appellee has an estimated

  28    

six months left to live and her condition is rapidly declining. According to her doctor, in

approximately 3 months she will be on a ventilator and will not be able to speak or swallow

food. She will continue to lose all control over muscular function. R. at 10.

The second factor, adaptation and management of disability, further supports a finding of

parental unfitness. Eight months after being hospitalized due to her fall, Appellee was able to

make enough progress to return home, but the reality of her disease remains. As provided above,

Appellee’s health is declining rapidly and no amount of rehabilitation will make her able to

provide adequate care for her child.

Lastly, Appellee has no familial support. R. at 8. Though prior to her hospitalization DSS

provided substantial assistance including an apartment, SNAP benefits, Medicaid, and HEAP

benefits. DSS also provided her with in-home nursing assistance, daycare for Caleb, and

transportation. Between daycare and in-home nurses all of Caleb’s meals were prepared and

provided for him as Appellee was unable. R. at 9.

When assessing the family condition as a whole, it is clear Appellee cannot meet the

basic needs of her son. DSS is not relying on Appellee’s disability as prima facie evidence of her

“unfitness.” Instead DSS has used the specific facts of this case to come to the well reasoned

conclusion that Appellee is “unfit” to raise her son, due to her individual condition and the

family condition as a whole. Appellee’s disability and subsequent total inability to meet the

basic needs of her child will have a substantial and adverse effect on the child if he is placed

back into her care.

2. Further reunification services are improper because Appellee is “unfit” to parent in the foreseeable future, due to her terminal illness.

In addition to being unable to care for her child in the present, clear and convincing

evidence establishes by the nature of her terminal illness and medical prognosis, Appellee is also

  29    

unable to care for her child in the foreseeable future. The New York Court of Appeals addressed

the issue of whether evidence was sufficient to support the finding that the mother, by reason of

mental illness, was presently and for the foreseeable future, unable to provide proper care for her

child. Matter of Hime Y., 52 N.Y.2d 242, 245 (1981). The petition in Matter of Hime Y., was also

filed under Section 384-b of the Social Services Law, and is controlling here because of its

substantial similarity to the NSSSL. Ultimately the Court in Matter of Hime Y., concluded that

though there was evidence to support present inability to parent, there was not sufficient

evidence to support the finding that the mother would not be able to parent in the foreseeable

future. There an expert testified that the parent could potentially regain the ability to parent the

child, thus remanding the case back to the lower court, indicating that professional testimony is

highly influential in assessing potential parental function. Id. at 248-249

In In Guardianship of Vera T. v. Cherie T., the New York Appellate Division sought to

define the limits of “foreseeable future.” There the court addressed the remote possibility of a

parent regaining parental fitness sometime in the future, though the mother was found to be

presently unfit by reason of repeated hospitalization and diagnosis of schizophrenia. In

Guardianship of Vera T. v. Cherie T., 435 N.Y.S.2d 598, 599 (N.Y. App. Div. 1st Dep’t. 1981)

aff'd sub nom. Vera T. Louise Wise Services v. Cherie T., 434 N.E.2d 1075 (N.Y. 1982). The

Appellate Court overruled the Family court finding that there was some remote possibility the

mother would become fit to parent again. The court further stated that a remote possibility of

recovery is, “no basis for ignoring the needs of the child.” Id. Further, even noteworthy progress

is not enough. See In re Ashanti A., 869 N.Y.S.2d 20, 21 (N.Y. App. Div. 1st Dep’t. 2008).

(Holding that while respondent had made noteworthy progress in many areas, clear and

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convincing evidence supported the finding that she was, by reason of mental illness, presently

and for the foreseeable future, unable to provide proper and adequate care for her child.)

In comparison to the circumstances in Matter of Hime Y. and In guardianship of Vera T,

the evidence before this court is clear and convincing that Appellee is not only incapable of

providing adequate care for the child in the present, but also incapable in the foreseeable future.

The present case is distinguishable from many of the cases addressing parental unfitness as a

result of mental illness, because here there is no possibility of recovery in the future. Appellee

has a terminal illness with a current prognosis stating that she has six months to live. ALS is a

condition without a cure. Appellee’s physical condition is steadily worsening, as evidenced by

the in-home study, her physician’s report, and her current physical state. As evidence of the rapid

deterioration, from the time that DSS initiated an in-home study of Appellee, to the time it was

completed, she lost the use of her right hand. R. at 12.

All parties recognize that Appellee will not recover or regain ability to adequately parent.

Instead, Appellee is asking to spend more time at home with her son. The question before this

court is whether it is in the child’s best interest to have his life once again uprooted and placed

back into the home of his terminally ill mother. This move is not only setting Caleb up for

further disruption to his normal routine, but would also add to the inevitable disruption that will

occur when Appellee succumbs to her terminal illness. It is clear that the best interests of the

child are better served by allowing him to remain in foster care and continue visitation with his

mother until his adoption. Allowing the child to remain in foster care is undoubtedly in his best

interests because it provides a stable environment for him as he transitions to a permanent home.

Therefore, due to her prognosis and current disability, Appellee is unable to care for the child

presently and in the foreseeable future.

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B. A Best Interests Analysis Establishes That Caleb Would Be Better Served In Foster Care.

It is in Caleb’s best interests to remain with the Smiths and continue visitation with his

mother. After conducting a fact specific best interests of the child analysis the potential benefits

of removing Caleb and placing him back with his terminally ill and disabled birth parent are

outweighed by the benefits of allowing the child to remain in the stable foster care home

environment where the Smiths are able to meet the emotional and physical needs of an active

five-year old boy.

Here, the record clearly establishes that Appellee is a caring parent who wants to see her

son well taken care of. Unfortunately, regardless of Appellee’s desire to parent her child, her

physical condition and future prognosis render her incapable of parenting adequately. Although

constitutionally protected, a natural parent's right to custody of his or her children is not absolute

and may be limited or terminated by the state, as parens patriae, if parent is proved unfit to be

entrusted with care of child. State v. Jessica M., 191 W. Va. 302, 445 S.E.2d 243 (1994). 3 Leg.

Rts. Child. Rev. 2D § 28:1 (2d ed.)

It is a well-established principle of law that when adjudicating custody and visitation

rights, the most important factor to be considered is the best interest of the child. Goldhaber v.

Rosen, 990 N.Y.S.2d 539, 540 (N.Y. App. Div.2d Dep’t 2014). It is also well established that

parents have a superior right to the custody of their children over non-parents. Troxel v.

Granville, 530 U.S. 57, 65-66 (2000). However, though parents enjoy a constitutionally

protected interest in their family integrity, this interest is counterbalanced by the compelling

governmental interest in the protection of minor children, particularly in circumstances where the

protection is considered necessary as against the parents themselves. Wilkinson v. Russell, 182

F.3d 89, 104 (internal citations and quotation marks omitted), cert. denied 528 U.S. 1155, 120 S.

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Ct. 1160, 145 L.Ed.2d 1072. People v. Hannah, 887 N.Y.S.2d 140, 141 (N.Y. App. Div. 2d

Dep’t. 2009. The fundamental inquiry and first concern of the court when deciding the custody

of a minor is the best interest of the child. Lincoln v. Lincoln, 247 N.E.2d 659, 660 (N.Y. 1969).

Courts are given deference when formulating the specific factors that need to be

considered when making a determination of the best interest of the child. Eschbach v. Eschbach,

436 N.E.2d 1260, 1263 (N.Y. 1982). It has been recognized that there are no absolutes in making

the best interests determination, but rather only policies designed to guide the courts in their

determinations. Friederwitzer v. Friederwitzer, 432 N.E.2d 765, 768 (N.Y. 1982) (The court held

stability in a child's life is in the child's best interests and that the prior determination reflects a

considered and experienced judgment concerning all of the factors involved.) See In Interest of

Micah Alyn R. 202 W.Va. 400 (1998) (holding that when a parent is terminally ill and unable to

care for child, such that it constitutes “abuse and neglect,” the court is warranted to look for

prospective adoptive parents as long as efforts are made to maintain a bond between the parent

and child.)

Analyzing the best interests of a child is a heavily fact specific determination and the

analysis rests on the totality of the circumstances surrounding a child’s situation. The following

factors replicate what many courts utilize to evaluate the best interests of a child for termination

of rights proceedings: (1) the desires of the child; (2) the emotional and physical needs of the

child now and in the future; (3) the emotional and physical danger to the child now and in the

future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to

assist these individuals to promote the best interest of the child; (6) the plans for the child by

these individuals or by the agency seeking custody; (7) the stability of the home or proposed

placement; (8) the acts or omissions of the parent which may indicate that the existing parent-

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child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.

Horvatich v. Texas Dept. of Protective and Reg. Services, 78 S.W.3d 594 (Tex. App. Austin

2002).

Beginning with the first factor, desires of the child, the record reflects that Caleb misses

his mother, but remains very happy living with the Smiths. R. at 10. Second, a look at the

emotional and physical needs of the child now and in the future reveal that Caleb’s needs are

better met with the Smiths. If he were reunited with his mother he would not be able to go

outside and play. Id. He wouldn’t be able to enroll in sports leagues or have play dates with other

children. However with the Smiths, Caleb has joined a soccer team and has been reunited with

his previous friends and school community. Id. There is nothing in the record that indicates that

the Smiths would not meet Caleb’s emotional needs. On the other hand, if Caleb were to return

to Appellee, he would undoubtedly be affected by Appellee’s deteriorating condition. Therefore,

it is clear that his emotional needs would be better met by living with the Smiths.

Analyzing the factor of Appellee’s parental abilities reveals that she does not have the

requisite capacity to take care of Caleb. She cannot move without assistance and will soon be

unable to speak. The record has described her as a shell with a fully functioning brain. R. at 13.

On the other hand the Smiths are readily capable of meeting Caleb’s needs and providing him

with a loving and stable home environment. The Smiths already have a son, indicating

familiarity with parenting. Further, the Smiths ensure that Caleb is properly fed, dressed,

cleaned, and completing his homework. Id. The record states that Caleb is thriving. Id. The fifth

factor inquires into the available programs designed to help promote the child’s best interest. If

Caleb were to live with Appellee, his best interests would likely be served with the programs that

were administered before he was removed. Daycare and meal services would continue, though

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other services to promote his emotional and physical growth might not be available, as they are

with the Smiths. With the Smiths, Caleb has been reunited with his old friends, joined a soccer

league, and has his meals prepared for him by someone who has an investment in his future.

Next, analysis of the sixth factor, parental plans for child, demonstrates that the best

interests are met by allowing the child to remain with the Smiths. Appellee cannot adequately

plan for the future of her child because she is dealing with the end stages of a terminal disease.

Though Appellee has made laudable efforts to meet Caleb’s needs, from recording stories to

instructing nurses to purchase snacks he can easily access, she is unable to adequately address his

present needs let alone plan for his future. Appellee is unable to plan for Caleb’s future including

his schooling, emotional, physical and psychological needs. The Smiths are equipped to plan for

Caleb’s future. They have a two parent stable home environment where they are already

parenting one child and thus are already in a position to plan for the future of Riley and Caleb.

Analyzing the stability of the foster home results in a positive assessment for Caleb. The

Smiths are a licensed foster family, which indicates they have passed a preliminary screening

process imposed by DSS. Further, the record reflects that life with the Smiths is structured. Caleb

eats breakfast in the morning, goes to school, and plays with his friends after school. Id. Ms.

Smith is reliable, as the record indicates that she is very responsive to Caleb’s needs, be it

homework, intramural activity, cleanliness, or illness. Id.

The next two factors utilized when determining best interest, address acts or omissions on

the part of the parent and reasons for those acts or omissions. Here, there are glaring omissions

by Appellee. While the failure to act is due to a disability, the truth remains that Appellee is

unable to perform many parental acts that would allow for the conclusion that her relationship

with Caleb is a proper one. Appellee cannot perform any tasks on her own, thereby making it

  35    

impossible for her to perform any tasks for Caleb outside of providing moral or encouraging

support. However while this support is very much an act and important to parenting, this ability

is soon to be an omission as Appellee’s ability to speak will vanish in a few short months. R. at

12. There is nothing about Appellee’s situation, regardless of the disheartening nature, that

indicates that her relationship with her son would be proper. The unfortunate reality of

Appellee’s situation is that she cannot parent her son without significant help, help that the state

cannot be expected to provide. Applying these factors to the child’s current family situation, it is

not in the best interest of the child to remove him from his current stable environment and place

him back with his terminally ill mother who is presently and in the future unable to meet the

child’s basic needs.

In the present situation we are respectfully asking this court to adhere to the difficult but

necessary determination that due to her terminal illness Appellee is unable to properly care for

her child and therefore because the mother’s illness threatens the safety of the child, the state

must intervene on behalf of the child’s best interests. In re M.H., the court made a similarly

difficult determination upholding termination of parental rights where accommodations

necessary to enable father to parent his child were beyond the scope of the ADA. In re M.H., 143

P.3d 103 (Mont.2006) There, the father was unable to parent within a reasonable time or the

foreseeable future and the court found that in order to be able to adequately parent his child he

would need someone in the home every minute for at least six to nine months in order to be able

to be a minimally adequate parent. Here, Appellee’s situation is markedly worse, for no amount

of time will allow her to be able to parent her child. Appellee suffers from a terminal illness and

is rapidly declining both in her physical and mental capacities. The trial court properly ruled to

  36    

keep Caleb with the Smiths, a supportive stable family environment where he is able to visit his

mother twice weekly.

  37    

CONCLUSION For the reasons stated herein, Respondent-Appellant, The New Scotland Department of

Social Services respectfully requests that this Court affirm the decision below.

Respectfully Submitted,

/s/________________________ Team 135

Counsel for the Respondent –Appellant,

New Scotland County Department of Social Services