Index No. 0521-14

_______________

IN THE

New Scotland Court of Appeals

____________________

New Scotland County Department of Social Services,

Respondent-Appellant,

v.

Jennifer L.,

Petitioner-Appellee.

____________________

On Appeal from the

State of New Scotland,

Third Appellate Division

____________________

BRIEF FOR THE RESPONDENT-APPELLANT

____________________

ORAL ARGUMENT REQUESTED

Team No. 653

Counsel for the Respondent-Appellant,

New Scotland County Department of Social Services

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ................................................................................................................. i

TABLE OF AUTHORITIES ......................................................................................................... iii

QUESTION PRESENTED ..............................................................................................................1

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

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

ARGUMENT ...................................................................................................................................6

I. THE THIRD APPELLATE DIVISION ERRONEOUSLY CONCLUDED THAT THE

NEW SCOTLAND DEPARTMENT OF SOCIAL SERVICES VIOLATED THE

AMERICANS WITH DISABILITIES ACT BY DECLINING TO PROVIDE THE

SPECIFIC MODIFICATION, TWO FULL TIME CAREGIVERS, WHICH JENNIFER

L. DEMANDED ..................................................................................................................6

A. Jennifer L. Does Not Have a Title II Claim Because Providing Two Full-Time

Caregivers is an Unreasonable Modification that is Insufficient to Satisfy the

Essential Eligibility Requirement of N.S. SSL § 384-B, that the Parent be Able to

Adequately Care for the Child. ................................................................................8

1. Jennifer L. Cannot Satisfy the Essential Eligibility Requirement of N.S.

SSL § 384-b, that the Parent be Able to Adequately Care for the Child. ....9

2. Jennifer L.’s Requested Modification is Unreasonable Because Providing

Two Full-time Caregivers Requires Waiving the Essential Eligibility

Requirement. ..............................................................................................11

B. Jennifer L.’s Demand for Two Full-Time Caregivers is a Fundamental Alteration,

Which Would Require DSS to Create a New Service that Provides Proxy

Parents. ...................................................................................................................13

C. DSS, Consistent with the Policy Reflected in N.S. SSL § 384-b, Provided Jennifer

L. with Meaningful Access to Caleb......................................................................15

II. THE THIRD APPELLATE DIVISION ERRONEOUSLY CONCLUDED THAT IT IS

IN CALEB’S BEST INTEREST TO BE PLACED WITH JENNIFER L., WHEN HE IS

CURRENTLY LIVING A “NORMAL FAMILY LIFE” WITH HIS FOSTER CARE

FAMILY. ..........................................................................................................................18

ii

A. Stability is Heavily Weighted in the Best Interests Analysis Because of its

Importance in a Child’s Life, and Remaining with His Foster Care Family is the

Best Way to Maintain Stability in Caleb’s Life. ....................................................21

B. Caleb’s Physical and Emotional Needs are Best Provided for by Remaining with

His Foster Care Family Under the Best Interests Analysis Because the Physical

Manifestations of Jennifer L.’s Disease Prevent Her from Meeting Caleb’s

Needs. ....................................................................................................................24

1. Jennifer L. is Unable to Provide for Caleb’s Physical Needs at this Time

and at any Time in the Future ....................................................................26

2. Jennifer L. is Unable to Provide for Caleb’s Emotional Needs Now and in

the Future ...................................................................................................27

C. Allowing Caleb to Remain with His Foster Care Family Will Offer Him the Best

Opportunity to Develop and Thrive in a “Normal Family Life,” Consistent with

the Legislature’s Intent and the State’s Interest in the Welfare of

Children..................................................................................................................28

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

iii

TABLE OF AUTHORITIES

Cases: Pages

United States Supreme Court

Alexander v. Choate, 469 U.S. 287 (1985). ...................................................................................15

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) ...........................................................14, 15

Santosky II v. Kramer, 455 U.S. 745 (1982). .................................................................................29

Stanley v. Illinois, 405 U.S. 645 (1972) ...................................................................................28, 29

Tennessee v. Lane, 541 U.S. 509 (2004) ........................................................................................15

Federal Court

Castellano v. City of New York, 946 F. Supp. 249 (S.D. N.Y. 1996) ............................................12

Easley by Easley v. Snider, 36 F.3d 297 (3d Cir. 1994) ........................................................ passim

Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995) ............................................................................7

Mary Jo C. v. N. Y. State and Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013). ........................7, 9, 12

McElwee v. Cnty. Of Orange, 700 F.3d 635 (2d Cir. 2012). ...........................................................7

Pottgen v. Mo. State High Sch. Activities Ass’n, 40 F.3d 926 (8th Cir. 1994) ....................9, 11, 12

Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79 (2d Cir. 2004) ................................................13

Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003). .....................................................................13

Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976 (9th Cir. 1997) .................................8

State Court

Adoption of Michael H., 898 P.2d 891 (Cal. 1995) .......................................................................24

Arneson v. Arneson, 670 N.W.2d 904 (S.D. 2003). .......................................................................24

Bennett v. Jeffreys, 356 N.E.2d 277 (N.Y. 1976). ...................................................................19, 22

Clapper v. Harvey, 716 A.2d 1271 (Pa. Super. Ct. 1998) .............................................................19

iv

C.F. Morris Co. v. Foley Constr., 376 N.E.2d 578 (Ohio 1978) ...................................................20

Davis v. Flickinger, 674 N.E.2d 1159 (Ohio 1997). ......................................................................20

Fish v. Fish, 939 A.2d 1040 (Conn. 2008) ....................................................................................19

Garska v. McCoy, 278 S.E.2d 357 (W. Va. 1981). ........................................................................25

Hiller v. Fausey, 909 A.2d 875 (Penn. 2006) ................................................................................29

Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) ...........................................................19, 20, 24, 28

In re Adoption of Tachick, 210 N.W.2d 865 (Wis. 1973). .............................................................19

In re B.W., 626 P.2d 742 (Colo. App. 1981)..................................................................................26

In re Chance Jahmel B., 187 Misc.2d 626 (N.Y. Fam. Ct. 2001). ................................................12

In re Davonta V., 940 A.2d 733 (Conn. 2008). .............................................................................20

In re Eden F., 741 A.2d 873 (Conn. 1999) ....................................................................................23

In re Hands, 553 A.2d 1171 (Del. 1989). ......................................................................................22

In re J.B.S., 863 P.2d 1344 (Wash. 1993). .....................................................................................17

In re Joseph W., 79 A.3d 155 (Conn. Super. Ct. 2013). ..............................................19, 21, 22, 23

In re K.C., 219 S.W.3d 924 (Tex. Ct. App. 2007). ........................................................................21

In re Marriage of Levin, 102 Cal. App. 3d 981 (Cal. Ct. App. 1980). ..........................................22

In re Michael B., 604 N.E.2d 122 (N.Y. 1992)..............................................................................27

In re R.L.S., 820 N.E.2d 1201 (Ill. App. Ct. 2004) ........................................................................19

In re Rasheeda K. v Tawana M., 981 N.Y.S.2d 638 (N.Y. Fam. Ct. 2013). .................................25

In re Sumey, 621 P.2d 108 (Wash. 1980). .....................................................................................17

In re Welfare of A.J.R., 896 P.2d 1298 (Wash. Ct. App. 1995). ..............................................14, 16

Meredith v. Meredith, 521 So.2d 793 (La. Ct. App. 1988). ...........................................................21

Pietrzak v. Schroeder, 759 N.W.2d 734 (S.D. 2009).....................................................................20

v

Roth v. Haag, 834 N.W.2d 337 (S.D. 2013) ..................................................................................21

Stone v. Daviess Cnty. Div. of Children and Family Serv., 656 N.E.2d 824

(Ind. Ct. App. 1995) ...........................................................................................................14, 16, 17

Statutes:

Federal Provisions

29 U.S.C. § 794 (2012) ....................................................................................................................7

42 U.S.C. § 12131 (2012) ................................................................................................................8

42 U.S.C. § 12132 (2012). ....................................................................................................7, 8, 15

State Provisions

750 Ill. Comp. Stat. § 5/602 (2010) ...............................................................................................25

Ariz. Rev. Stat. Ann. § 25-403 (2013). ..........................................................................................25

Colo. Rev. Stat. § 14-10-123 (2012). .............................................................................................22

Colo. Rev. Stat. § 14-10-124 (2014). .............................................................................................25

N.S. SSL § 384-b ................................................................................................................... passim

Tex. Family Code Ann. § 102.003 (2011). ....................................................................................22

Regulations:

28 C.F.R. § 35.130(b)(7) (2014) ........................................................................................11, 13, 15

Secondary Sources

Joseph Goldstein et al., Before the Best Interests of the Child (1st ed. 1973). ..............................27

Positive Parenting Tips for Healthy Child Development: Middle Childhood (6-8 years of age),

Ctr. for Disease Control and Prevention, U.S. Dep’t of Health and Human Servs.,

http://www.cdc.gov/ncbddd/childdevelopment/positiveparenting/pdfs/middlechildhood6-8.pdf

(last updated Nov. 25, 2014) ..........................................................................................................25

Positive Parenting Tips for Healthy Child Development: Preschoolers (3-5 years of age), Ctr. for

Disease Control and Prevention, U.S. Dep’t of Health and Human Servs.,

http://www.cdc.gov/ncbddd/childdevelopment/positiveparenting/pdfs/preschoolers3-5.pdf (last

updated Nov. 25, 2014) ..................................................................................................................27

vi

What is Huntington’s Disease?, Huntington’s Disease Soc’y of Am.,

http://www.hdsa.org/about/our-mission/what-is-hd.html (last visited Jan. 9, 2015) .....................26

1

QUESTIONS PRESENTED

I. Under the Americans with Disabilities Act, did the Department of Social Services

appropriately decline Jennifer L.’s demand for two full-time caregivers, when she did not

meet the essential eligibility requirement under the New Scotland law and the demand

would fundamentally alter the nature of the services currently provided.

II. Under New Scotland law, did the Family Court correctly decide that it is in Caleb’s best

interest to remain with his foster care family, when placing him with Jennifer L. would

create instability and she is unable to provide for his physical and emotional needs.

STATEMENT OF THE CASE

Statement of Facts

The New Scotland County Department of Social Services (“DSS”) currently has custody

over five year-old Caleb after intervening on his behalf when Jennifer L., his mother, was placed

in a rehabilitative nursing home after breaking her hip. (R. 10). DSS was involved in Caleb’s life

the year prior to this incident. (R. 9). That year was an “especially difficult” one for Caleb. Id.

During that year, Caleb had to “move away from the only home that [he] had ever known” after

Jennifer L. was fired from her jobs and lost their home in foreclosure. Id. Caleb was “forced” to

transfer schools and leave his friends in the middle of the school year. Id.

During that time, DSS assisted Caleb and Jennifer L. by finding them an apartment in the

State of New Scotland. Id. DSS also paid for Caleb to attend a full-time daycare program that

provided him transportation between his home and his school. Id. Caleb ate both his breakfast

and lunch while at this program. Id. Since Jennifer L., who was diagnosed with amyotrophic

lateral sclerosis (“ALS”), was becoming “less and less stable on her feet,” her DSS-provided

nurse made dinner for Caleb. (R. 7, 9).

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As Jennifer L.’s disease progressed, Caleb was “forced to deal with Jennifer’s loss of

motor function.” (R. 9). Even with the assistance of a walker, Jennifer L. could only move three

or four steps before falling. (R. 10). On January 1, 2014, Jennifer L. fell down the stairs of her

apartment building and broke her hip. Id. At that time, DSS placed Caleb with a licensed foster

care family because Jennifer L., his sole custodian, was transferred to a nursing home. (R. 8, 10).

When Jennifer L.’s nursing home stay appeared to become permanent, DSS initiated a

proceeding to terminate Jennifer L.’s parental rights. (R. 6). Jennifer L. did not contest the

termination of her parental rights and the New Scotland Family Court subsequently terminated

Jennifer L.’s parental rights on August 4, 2014. (R. 11). Caleb has remained with his foster care

family, the Smiths, since January 2014. (R. 10).

Caleb is “thriving in his current living situation” Id. Since the Smiths live in the same

school district where Caleb initially grew up, Caleb has been able to “continue a normal life” by

returning to his previous school and reuniting with his friends. Id. Additionally, Mrs. Smith takes

care of Caleb by preparing his meals, making sure he is bathed, ensuring he wears clean clothes,

and caring for him when he is sick. Id. Mr. Smith helps Caleb with his homework. Id. The

Smith’s seven-year-old son, Riley, is the “big brother” that Caleb never had. Id. Caleb and Riley

“do everything together.” Id. They eat together, go to school together, and play together after

school. Id. They are also enrolled in the same local soccer league. Id. Moreover, the Smiths take

Caleb to visit Jennifer L. twice a week and every weekend. Id. The Smiths intend to adopt Caleb

after Jennifer L. passes away. (R.13).

According to Jennifer. L.’s physician, she has roughly six months to live. Id. Jennifer L.

was released from the nursing home and into her nurse’s care in September of 2014. (R. 11).

After her release, a DSS social worker met with Jennifer L. to determine if a reunification plan

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could be created. (R. 12). The in-home study established that Jennifer L. “is unable to care for

herself” and needs a registered nurse for at least twelve hours a day. Id. Jennifer L. is in a

wheelchair and her symptoms render her physically unable to move within the apartment. (R.

13). In three months, Jennifer L. will be placed on a portable ventilator, at which point she will

be unable to speak or swallow food. (R. 12). Her muscles will severely weaken and atrophy. Id.

Jennifer L. has already lost the use of her right hand and arm. Id. Jennifer L.’s use of her

extremities and control of her muscular functions will continue to worsen until she is unable to

move at all. Id. Additionally, the social worker found that Jennifer L. cannot bathe Caleb and she

cannot supervise Caleb while he plays outside. Id. The social worker recommended that “it is in

Caleb’s best interest” to remain with the Smith family and continue the current visitation

arrangement with Jennifer L. (R. 13).

Procedural History

Petitioner-Appellee, Jennifer L. brought this action in the New Scotland Family Court

claiming that DSS, Respondent-Appellant, violated her rights under the Americans with

Disabilities Act (“ADA”) by declining to provide her with the two full-time caregivers, and

claiming that reunification would be in Caleb’s best interest. Id. On January 30, 2015, the New

Scotland Family Court granted DSS’s Motion for Summary Judgment and found that (1) DSS

did not violate the ADA when it declined to provide two full-time caregivers for Caleb in order

to reunify Jennifer L. and Caleb, and (2) it is Caleb’s best interest to remain in his foster care

family. (R. 17). Jennifer L. then appealed the Family Court’s decision to the Third Appellate

Division of New Scotland. (R. 4). On February 13, 2015, the State of New Scotland, Third

Appellate Division, reversed the Family Court’s decision on both issues. (R. 22). On the same

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day, DSS filed a timely appeal of the Third Appellate Division’s decision, and the Third

Appellate Division granted the appeal on both issues. (R 5).

SUMMARY OF THE ARGUMENT

This Court should reverse the holding of the Third Appellate Division because under the

ADA, DSS appropriately declined the demand by Jennifer L. for two full-time caregivers. In

order to establish discrimination under Title II of the ADA, Jennifer L. must demonstrate that she

is a “qualified individual with a disability” and that she requested a reasonable modification of

the public entity’s services. Even if Jennifer L. establishes those elements, DSS can show that

Jennifer L.’s requested modification was a fundamental alteration of the services provided by

DSS.

First, Jennifer L. has failed to establish a Title II claim because she is not a “qualified

individual with a disability.” Since Jennifer L. does not satisfy the essential eligibility

requirement set by New Scotland law, that the parent be adequately able to take care of the child,

she is not considered a qualified disabled individual under the ADA. Jennifer L.’s physical

limitations, as a result of her ALS, preclude her from sufficiently taking care of Caleb.

Furthermore, Jennifer L.’s requested modification, two full-time caregivers, is unreasonable on

its face because the essential eligibility requirement is that Jennifer L. be able to take care of the

child, not that the caregivers be able to take care of the child. Thus, even if DSS provided

Jennifer L. with two full-time caregivers, Jennifer L. would still not satisfy the essential

eligibility requirement.

Second, DSS has demonstrated that the requested modification is a fundamental

alteration of the services currently provided by DSS. Providing two full-time caregivers would

shift the focus of DSS’s services from providing assistance to improve parenting skills, to

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providing proxy parents. Since DSS does not currently provide proxy parents, DSS would be

forced to create a new service in order to fulfill Jennifer L.’s request. This would be an undue

burden on the state because the state has a responsibility to provide its services evenhandedly.

Third, consistent with New Scotland law, DSS provided Jennifer L. with meaningful access to

Caleb by setting up a visitation arrangement. DSS appropriately chose to prioritize Caleb’s needs

in denying Jennifer L.’s requested reunification plan. In light of these considerations, DSS did

not violate the ADA because Jennifer L.’s request unreasonably modified and fundamentally

altered the services offered by DSS.

Additionally, this Court should reverse the holding of the Third Appellate Division and

reinstate the holding of the Family Court, because it is in Caleb’s best interest to remain with his

foster care family. In determinations made after parental rights have been terminated, as is the

case here, the sole consideration is the best interests of the child involved. The relevant best

interests factors that should be weighed by the Court are the stability of the child and the ability

of the parent to provide for the child’s physical and emotional needs. The outcome of the best

interest analysis, allowing Caleb to remain with his foster care family, is consistent with the New

Scotland legislature’s intent and the state’s interest in a child’s welfare.

First, stability is vital to a child’s life and is therefore weighed heavily in the best

interests analysis. It is in Caleb’s best interest to maintain stability in his life by allowing him to

remain with the Smith family. Remaining with the Smith family will prevent disruption in

Caleb’s life when he is placed back with Jennifer L. and then again displaced when she passes

away. Caleb lives a stable life with the Smiths and thrives in that environment.

Second, Caleb’s physical and emotional needs are best protected by remaining with his

foster care family, because Jennifer L. is unable to provide for Caleb’s physical and emotional

6

needs. It is appropriate to consider the physical abilities of the parent, when analyzing whether

they can provide for a child. In order to provide for a child’s physical and emotional needs, a

parent must be able to perform minimal parental responsibilities. Because Jennifer L. is unable to

provide for her own physical needs, she is also incapable of parenting Caleb, while the Smith

family has been providing for Caleb’s physical and emotional needs for the past year.

Finally, allowing Caleb to remain in the Smith’s stable home protects Caleb’s health and

emotional welfare thereby satisfying the state’s obligation to protect the minor child. Further,

this placement aligns with the New Scotland legislature’s intent to provide a child with a

“normal family life in a permanent home.” A parent’s fundamental right to parent is subordinate

to the state’s interest in protecting the welfare of its children. The best interests analysis focuses

on Caleb’s welfare and not Jennifer L.’s interests, which is consistent with what the state is

intended to protect.

For the foregoing reasons, this Court should reverse the Third Appellate Division and

reinstate the Family Court’s holding that DSS did not violate the ADA when it declined to

provide two full-time caregivers and it is in Caleb’s best interest to remain with his foster care

family.

ARGUMENT

I. THE THIRD APPELLATE DIVISION ERRONEOUSLY CONCLUDED THAT THE

NEW SCOTLAND DEPARTMENT OF SOCIAL SERVICES VIOLATED THE

AMERICANS WITH DISABILITIES ACT BY DECLINING TO PROVIDE THE

SPECIFIC MODIFICATION, TWO FULL TIME CAREGIVERS, WHICH

JENNIFER L. DEMANDED.

The Third Appellate Division erroneously concluded that the New Scotland Department

of Social Services violated the Americans with Disabilities Act by declining to provide two full-

time caregivers as part of the rehabilitative services Jennifer L. requested in order to regain

7

custody of Caleb, her son. Title II of the ADA states that “no qualified individual with a

disability shall, by reason of such disability . . . be denied the benefits of the services, programs,

or activities of a public entity . . . .” 42 U.S.C. § 12132 (2012). Congress enacted Title II of the

ADA to expand the reach of § 504 of the Rehabilitation Act’s non-discrimination provisions to

state and local governments. Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir. 1995). Section 504

of the Rehabilitation Act states that “[n]o otherwise qualified individual with a disability…shall,

solely by reason of her or his disability, be excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance.” 29 U.S.C. § 794(a) (2012). Since the “standards adopted by the two statutes

are nearly identical,” courts use the same analysis for both statutes. McElwee v. Cnty. of Orange,

700 F.3d 635, 640 (2d Cir. 2012). Questions of law should be reviewed under a de novo standard

of review. Mary Jo C. v. N. Y. State and Local Ret. Sys., 707 F.3d 144, 151 (2d Cir. 2013). Under

the standards adopted by the ADA and the Rehabilitation Act, Jennifer L.’s request for two full-

time caregivers is unreasonable.

In this case, under the ADA, DSS properly declined Jennifer L’s demand for the

following three reasons. First, Jennifer L. does not have a Title II claim because, under New

Scotland Social Services Law § 384-(b) (hereinafter “N.S. SSL”), she does not meet the essential

eligibility requirement that the parent be able to adequately care for the child. Second, Jennifer

L.’s demand for two full-time caregivers is a fundamental alteration, which would require DSS

to create a new service that provides proxy parents. Third, DSS acted consistently with the policy

reflected in N.S. SSL § 384-b by providing Jennifer L. with meaningful access to Caleb.

Therefore, this Court should reverse the Third Appellate Division and find that DSS did not

8

violate the ADA when it declined to provide two full-time caregivers because Jennifer L. is

unable to adequately care for Caleb.

A. Jennifer L. Does Not Have a Title II Claim Because Providing Two Full-Time

Caregivers is an Unreasonable Modification that is Insufficient to Satisfy the

Essential Eligibility Requirement of N.S. SSL § 384-B, that the Parent be Able to

Adequately Care for the Child.

Jennifer L. does not have a Title II claim because the purpose of N.S. SSL § 384-b, to

protect the “health and safety of the child” by providing a “normal family life in a permanent

home,” cannot be fulfilled when Jennifer L. is unable to adequately care for the child because of

her medical illness. In order to demonstrate a violation of Title II of the ADA, Jennifer L. must

show: she is a “qualified individual with a disability;” she was denied the benefits of a public

entity’s services, programs or activities; and she was denied those benefits because of her

disability. Weinreich v. L. A. Cnty. Metrop. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997); See

42 U.S.C. § 12132. The ADA defines “qualified individual with a disability,” as “an individual

with a disability who, with or without reasonable modifications . . . meets the essential eligibility

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

a public entity.” 42 U.S.C. § 12131 (2012) (emphasis added).

To determine whether a public entity’s services discriminate in violation of the ADA, the

court must analyze two factors: (1) whether the disabled individual meets the services’ stated

requirements regardless of his/her disability, and (2) whether a reasonable accommodation would

allow the disabled individual to receive the benefits of the public entity’s services. Easley by

Easley v. Snider, 36 F.3d 297, 302 (3d Cir. 1994). In this case, the services offered by DSS are

not discriminatory for the following two reasons. First, Jennifer L. cannot satisfy the essential

eligibility requirement of N.S. SSL § 384-b because she cannot adequately care for Caleb due to

her physical limitations. Second, Jennifer L.’s requested modification is unreasonable because it

9

requires waiving the essential eligibility requirement that the parent be able to adequately care

for the child.

1. Jennifer L. Cannot Satisfy the Essential Eligibility Requirement of N.S. SSL §

384-b, that the Parent be Able to Adequately Care for the Child.

Jennifer L. is not a “qualified individual with a disability,” thus she has no Title II claim,

because she does not meet the essential eligibility requirement of N.S. SSL § 384-b. Title II of

the ADA was intended only to protect disabled individuals who potentially could satisfy the

essential eligibility requirements of a program or activity. See, e.g., Pottgen v. Mo. State High

Sch. Activities Ass’n, 40 F.3d 926, 930 (8th Cir. 1994) (noting that since no reasonable

accommodation existed to allow disabled individual to meet essential eligibility requirement of

program, there was no protection under § 504 of the Rehabilitation Act). The “essential

eligibility requirement” determination is not an individualized inquiry; rather, courts determine

whether an eligibility requirement is essential by assessing the significance of the requirement to

the program at issue. Mary Jo C., 707 F.3d at 157. Courts look to the services actually offered by

the public entity to establish the essential nature of the program. Easley, 36 F.3d at 303.

When the purpose of the “eligibility requirement” is of significant importance to the

public entity’s service or program, courts conclude the eligibility requirement is essential. See,

e.g., Pottgen, 40 F.3d at 929-30 (Eighth Circuit holding that age limit is an essential eligibility

requirement because purpose of the age limit, to reduce the competitive advantage for teams with

older athletes, protect younger athletes, dissuade students from postponing their education, and

prevent coaches from “red-shirting” student athletes, was of “immense importance” in any

interscholastic sports program). The Third Circuit, in Easley, examined the actual services

offered pursuant to the Pennsylvania Attendant Care Services Act, which allowed physically

disabled but mentally alert individuals to live in their own homes rather than in institutions.

10

Easley, 36 F.3d at 299, 302. The court determined that personal control was essential to the

program because the disabled individual was required to do tasks and make choices, such as

interviewing, hiring, and firing attendants. Id. at 300. The court noted that every model of the

attendant care services offered by the state demonstrated that the program beneficiaries retained

personal control. Id. at 303. Because the goal of the program was to exercise personal control,

the court concluded that the physically disabled individual had to be mentally alert in order to

fulfill the program’s goal. Id. at 304. Thus, the court held that mental alertness was an essential

eligibility requirement for the physically disabled individuals to receive the benefits of the state’s

attendant care services. Id.

In this case, the “eligibility requirement” is that the parent must be able to adequately

care for the child. The purpose of this requirement, as noted in N.S. SSL § 384-b(1)(a), is to both

protect the “health and safety of the child” and to provide the child a “ normal family life in a

permanent home.” N.S. SSL § 384-b(1)(a). New Scotland law authorizes DSS to utilize different

services to encourage a relationship between parent and child, such as creating a rehabilitative

services plan, arranging visitation, and informing the parent of the child’s development. N.S.

SSL § 384-b(3). DSS, however, is not required to provide a requested rehabilitative services plan

to the disabled parent if doing so would be contrary to the legislature’s intent. Examining the

services offered by DSS, as the Third Circuit did in Easley, establishes that the essential nature

of the program is to encourage a relationship between parent and child, but only to the extent that

the child is healthy, safe, and raised in a “normal family life.”

Jennifer L. does not meet the essential eligibility requirements because she is physically

unable to adequately care for Caleb. DSS's in-home study and findings show that Jennifer L. is

unable, due to her ALS, to take care of herself and needs in-home care by a registered nurse. (R.

11

12). Furthermore, Jennifer L.’s ALS is progressing. Id. In approximately three months she will

be unable to speak or swallow food, and muscles throughout her body will severely weaken and

atrophy. Id. Jennifer L. has already lost the use of her right hand and arm, and she will eventually

lose the use of all her extremities, as well as lose control over muscular functions. Id. Prior to her

hospitalization, Jennifer L. was unable to make food for Caleb or take him to school. (R. 9). At

this point, she cannot bathe Caleb, or even supervise him if he leaves the apartment. (R. 12).

According to her physician, Jennifer L. has approximately six months to live. (R. 13). During the

next six months, Jennifer L. will be unable to feed Caleb, bathe him, and supervise him outside

of the apartment. Id. Also, she will lose the ability to speak to him or physically interact with

him. Id. Jennifer L.’s physical limitations prevent her from taking care of her own well-being,

and also preclude her from adequately caring for a five-year old child. Thus, Jennifer L. does not

meet the essential eligibility requirement that the parent be able to adequately care for the child.

2. Jennifer L.’s Requested Modification is Unreasonable Because Providing Two

Full-time Caregivers Requires Waiving the Essential Eligibility Requirement.

Jennifer L.’s requested modification is unreasonable on its face because providing two

full-time caregivers requires waiving the essential eligibility requirement of N.S. SSL § 384-b,

that the parent be able to adequately care for the child. The Title II regulations require public

entities to “make reasonable modifications in policies, practices, or procedures when the

modifications are necessary to avoid discrimination on the basis of disability . . . .” 28 C.F.R. §

35.130(b)(7) (2014). Essential eligibility requirements, unlike “rules, policies, [and] practices,”

cannot be reasonably modified or waived because that would constitute an impermissible

fundamental alteration to the public entity’s services, programs, or activities. Pottgen, 40 F.3d at

930.

12

To determine if a requested modification is “reasonable” there must be a fact-specific,

case-by-case inquiry. Mary Jo C., 707 F.3d 144, 153 (2d Cir. 2013) (quoting Staron v.

McDonald’s Corp., 51 F.3d 353, 356 (2d Cir. 1995)). In making such a determination, courts

should consider factors such as “the effectiveness of the modification in light of the nature of the

disability in question.” Id. Although determining whether a modification is reasonable and

whether an eligibility requirement is essential is generally a fact-specific analysis, “certain

eligibility requirements of a program by their nature are essential and any alteration unreasonable

as a matter of law.” Castellano v. City of New York, 946 F. Supp. 249, 254 (S.D. N.Y.1996).

When there are no reasonable modifications that would allow the disabled individual to

satisfy the essential eligibility requirements of the program, public entities are not required to

waive the essential eligibility requirements in order to comply with Title II. See Pottgen, 40 F.3d

at 930. The Eighth Circuit in Pottgen concluded that no reasonable accommodation existed

where a learning-disabled individual could not satisfy the essential eligibility requirement, an age

limit, for the interscholastic sports program. Id. Similarly, in In re Chance Jahmel B., the New

York Family Court determined that the only possible accommodation, a full-time caregiver for

the child and supervision services for the father, could not reasonably be provided. In re Chance

Jahmel B., 187 Misc. 2d 626, 632 (N.Y. Fam. Ct. 2001). In that case, the court noted that the

parent’s condition, due to a brain injury, meant that “the usual parent counseling or training” for

reunification purposes would not be sufficient. Id.

Jennifer L. demanded that DSS provide two full-time caregivers to take care of Caleb. (R.

11). However, even if DSS provides two full-time caregivers, Jennifer L.’s requested

modification is unreasonable on its face because it does not help Jennifer L. satisfy the

requirement. Instead, her modification allows the two full-time caregivers to adequately take care

13

of Caleb. In order for Jennifer L. to satisfy the necessary requirement that she, herself, be able to

adequately care for Caleb, DSS would have to waive the essential eligibility requirement, which

is an unreasonable modification. Therefore, this Court should reverse the Third Appellate

Division and find that Jennifer L. did not establish that she is a “qualified individual with a

disability,” a necessary element of a Title II claim, because she cannot satisfy the essential

eligibility requirement of N.S. SSL § 384-b, with or without a modification.

B. Jennifer L.’s Demand for Two Full-Time Caregivers is a Fundamental Alteration,

Which Would Require DSS to Create a New Service that Provides Proxy Parents.

DSS did not violate the ADA by declining Jennifer L.’s demand because providing two

full-time caregivers would require DSS to create a new service that changes the focus of its

current services from helping parents learn to be good parents to actually providing proxy

parents. A public entity is not required to make “an accommodation at all if the requested

accommodation ‘would fundamentally alter the nature of the service, program, or activity.’”

Powell v. Na. Bd. of Med. Exam’rs, 364 F.3d 79, 88 (2d Cir. 2004) (quoting 28 C.F.R. §

35.130(b)(7)). Additionally, the language of Title II indicates that “public entities are not

required to create new programs that provide heretofore unprovided services” to help disabled

individuals. Townsend v. Quasim, 328 F.3d 511, 518 (9th Cir. 2003).

There is a fundamental alteration to a public entity’s services when the disabled

individual’s requested modification changes the whole focus of the existing program. The Third

Circuit in Easley held that the use of surrogates, to satisfy the mental alertness eligibility

requirement, was a fundamental alteration because the focus would shift from providing aid to

help the disabled individual, to providing a proxy to actually make the decisions on behalf of the

disabled individual. Easley, 36 F.3d at 305. Additionally, the court noted a fundamental

14

alteration exists where the “proposed alteration would create a program that the state never

envisioned.” Id.

Further, where the requested modification creates an undue burden on the state, it is

evidence of a fundamental alteration. In Olmstead v. L.C. ex rel. Zimring, the United States

Supreme Court held that mental illness is a disability and community placement is appropriate

when, among other factors, the “placement can be reasonably accommodated, taking into

account the resources available to the State and the needs of the others with mental disabilities.”

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587 (1999). In that case, the plaintiffs were two

women, who were diagnosed with mental illnesses, and clinical assessments indicated both

plaintiffs should be treated in a community based setting rather than an institutional setting. Id. at

593. The Court concluded, in analyzing a fundamental alterations defense, the lower court should

consider the cost of providing the care to the litigants, the range of services provided to others

with disabilities, and the state’s duty to equitably provide services, all within the context of the

state’s resources. Id. at 597.

In this case, New Scotland law provides that DSS may “assist, develop, and encourage” a

relationship between parent and child by “creating a rehabilitative services plan with appropriate

services to enable the child and his or her parent(s) to successfully reunite.” N.S. SSL § 384-b(3).

Courts have considered “appropriate services” to include instructions on the basics of parenting,

charts, and parenting classes. See Stone v. Daviess Cnty. Div. of Children and Family Serv., 656

N.E.2d 824, 830 (Ind. Ct. App. 1995); see also In re Welfare of A.J.R., 896 P.2d 1298, 1302

(Wash. Ct. App. 1995). Jennifer L. did not request such services, but instead requested two full-

time caregivers to take care of Caleb. (R. 11). Similar to Easley, if DSS were to provide two full-

time caregivers, the entire focus of the rehabilitative services would change. The focus would

15

shift from DSS providing assistance to parents in order to help them become better parents, to

DSS actually providing substitute parents. This would also require DSS to create a new service,

which is a fundamental alteration of the current services provided. Two full-time caregivers is

not the equivalent of the “appropriate services” provided by DSS because it does not help the

parent fulfill his or her parental duties, but rather adds two extra parents into the equation.

Furthermore, providing two full-time caregivers fundamentally alters the services

provided by DSS because of the financial burden on the state. The Supreme Court in Olmstead

recognized that the state could consider the cost of providing care, the types of services provided

to other disabled individuals, and the state’s responsibility to evenhandedly provide services.

Thus, this Court should not consider Jennifer L.’s request as a standalone request, but rather view

it in the context of similar requests from similarly situated disabled parents. DSS must provide its

services with an even hand. Therefore, this Court should reverse the Third Appellate Division

and find that DSS did not violate the ADA because Jennifer L.’s requested modifications

fundamentally altered the services provided by DSS.

C. DSS, Consistent with the Policy Reflected in N.S. SSL § 384-b, Provided Jennifer L.

with Meaningful Access to Caleb.

DSS provided Jennifer L. meaningful access to Caleb by satisfying the requirements of

N.S. SSL § 384-b. Under the ADA, the public entity must make “reasonable modifications” to

allow disabled individuals to receive the services provided by a public entity. See 42 U.S.C. §

12132; see also 28 C.F.R. § 35.130(b)(7). A public entity must provide qualified disabled

individuals with “meaningful access” to the benefits offered by the public entity. Alexander v.

Choate, 469 U.S. 287, 301 (1985). “Meaningful access” does not mean that a public entity is

required to “employ any and all means to make” services accessible. Tennessee v. Lane, 541 U.S.

509, 531 (2004).

16

New Scotland law provides that “every reasonable effort” must be made “to assist,

develop and encourage a meaningful relationship between the parent(s) and child . . . .” N.S. SSL

§ 384-b(3). According to the statute, this “reasonable effort” can be satisfied in numerous ways,

including but not limited to: “(a) creating a rehabilitative services plan with appropriate services

to enable the child and his or her parent(s) to successfully reunite; or (b) making suitable

visitation arrangements so the parent(s) can visit with the child; or (c) informing the parent(s) at

appropriate intervals of the child’s progress, development and health.” Id. (emphasis added).

The Indiana Court of Appeals in Stone v. Daviess County Division of Children and

Family Services concluded that the disabled parents had been provided sufficient services to help

them overcome their parenting deficiencies. Stone, 656 N.E.2d at 830. Due to the mother’s

cognitive limitations, she was provided charts and pictures to understand the children’s

nutritional needs. Id. at 831. Also, due to the parents’ inability to read and understand written

information, instructors showed videos and read materials to the parents during parenting classes.

Id. Similarly, the Washington Court of Appeals in In re Welfare of A.J.R. rejected an ADA claim

that the state had not offered sufficient services that addressed the parents’ special needs as

developmentally disabled parents. In re Welfare of A.J.R., 896 P.2d at 1302. The state had left

pictorial instructions on the refrigerator, used visual rather than literary aids to teach the parents

in a parenting class, and provided daily lessons on basic hygiene, cooking, and child care. Id.

The court found that the state had provided services that were modified to accommodate the

parents’ disabilities. Id.

In the case at bar, Jennifer L.’s difficulties are not easily remedied through charts and

instructions. DSS did provide Jennifer L. meaningful access to a rehabilitative services plan by

conducting an in-home study in order to determine whether a reunification plan was possible. (R.

17

12). However, DSS findings demonstrated that Jennifer L. was physically unable to adequately

care for five-year old Caleb at that time. Id. Further, the findings showed that Jennifer L.’s

condition would continue to deteriorate, thus indicating that Jennifer L. would be unable to care

for Caleb in the future. Id. It was only after making that determination that DSS decided to

explore other avenues to encourage a relationship between Jennifer L. and Caleb. (R. 13).

Although DSS declined to provide two full-time caregivers, creating such a reunification

plan was not the only manner to fulfill the statute’s mandate. New Scotland law also states that

DSS may “assist, develop and encourage a meaningful relationship” between parent and child by

“making suitable visitation arrangements” or “informing the parent[s] at appropriate intervals of

the child’s progress, development and health.” N.S. SSL § 384-b(3). DSS has provided Jennifer

L. with meaningful access to DSS services by arranging visitation between Jennifer L. and

Caleb. Caleb’s foster care family, the Smiths, bring Caleb to visit Jennifer L. twice a week and

every weekend. (R. 11). Jennifer L. not only has a suitable visitation arrangement, but also the

opportunity to gauge Caleb’s progress, development, and health multiple times a week.

Moreover, consistent with the policy reflected in N.S. SSL § 384-b, DSS prioritized the

needs of Caleb above the needs of Jennifer L. when determining that the requested reunifications

service could not be provided. Although parents have “a fundamental liberty and privacy interest

in the care and custody of their children,” the State has a duty to protect the child when parental

actions conflict with the mental or physical health of the child. In re J.B.S., 863 P.2d 1344, 1348

(Wash. 1993); In re Sumey, 621 P.2d 108, 110 (Wash. 1980). There is “a minimum level of care"

every child has a right to, “regardless of the special needs or limited abilities of its parents.”

Stone, 656 N.E.2d at 831.

18

In this case, DSS’s in-home study and findings clearly indicated that Jennifer L. would be

unable to physically care for Caleb. The requested modification, two full-time caregivers, would

not allow Jennifer L. to take on more parental responsibilities, but instead would introduce two

new parents into Caleb’s life. Since Jennifer L.’s prognosis indicates that she only has six

months left to live, introducing two co-parents at this point means Caleb will lose Jennifer L. and

the two new co-parents when he is returned to his foster care family in six months. (R. 13). At

this point in time, Caleb has already connected with the Smiths and their son, Riley, and Caleb is

also able to visit with Jennifer L. numerous times each week. (R. 9). DSS appropriately chose to

prioritize Caleb’s needs in denying Jennifer L.’s requested reunification plan. Therefore, this

Court should reverse the Third Appellate Division and find that DSS acted consistently with both

the ADA and the N.S. SSL § 384-b by declining Jennifer L.’s requested modification because

two full-time caregivers is an unreasonable modification that fundamentally alters the services

currently provided by DSS.

II. THE THIRD APPELLATE DIVISION ERRONEOUSLY CONCLUDED THAT IT IS

IN CALEB’S BEST INTEREST TO BE PLACED WITH JENNIFER L., WHEN HE

IS CURRENTLY LIVING A “NORMAL FAMILY LIFE” WITH HIS FOSTER

CARE FAMILY.

Regardless of whether the State is required to provide Jennifer L.’s demanded

modification, this Court should still determine Caleb’s placement based on his best interest. The

New Scotland legislature explicitly states that “it is consistent with the health and safety of the

child . . . to grow up with a normal family life in a permanent home and that such circumstances

offer the best opportunity for the child to develop and thrive.” N.S. SSL §384-b(1)(a)(i). It is in

Caleb’s best interest to remain with his foster care family because that provides the best

opportunity for a “normal family life,” which is why this Court should reverse the Third

Appellate Division and reinstate the decision of the New Scotland Family Court.

19

In New Scotland, parental rights may be terminated when “the parent(s) is unable –due to

his or her mental or medical illness – to presently and for the foreseeable future adequately care

for the child.” N.S. SSL § 384-b(2)(b). DSS successfully moved to terminate Jennifer L.’s

parental rights after the Family Court determined that Jennifer L. is unable, due to her medical

illness, to presently and for the foreseeable future adequately care for Caleb. (R. 10-11). New

Scotland also requires DSS to “make every reasonable effort to assist, develop, and encourage a

meaningful relationship between the parent(s) and the child, even after that parent’s rights have

been terminated.” N.S. SSL § 384-b(3).

However, when a parent’s rights are terminated, this termination “severs permanently the

legal ties between parent and child.” Fish v. Fish, 939 A.2d 1040, 1094 (Conn. 2008). Since the

parent’s rights are already terminated, there is no longer a presumption in favor of the natural

parent obtaining custody. See In re R.L.S., 820 N.E.2d 1201, 1205 (Ill. App. Ct. 2004) aff'd, 844

N.E.2d 22 (Ill. 2006) (interpreting an Illinois statute to mean that there is no parental preference

when a parent has been deemed unfit and the child is being placed with another family). Instead

of the parental preference, courts use the best interests analysis to determine proper placement of

a child. Bennett v. Jeffreys, 356 N.E.2d 277, 283 (N.Y. 1976).

Additionally, courts consider the child’s best interest to be of paramount concern in

determining the child’s placement. Clapper v. Harvey, 716 A.2d 1271, 1274 (Pa. Super. Ct.

1998). In order to protect the child, courts have created a factor-based best interest analysis. In re

Joseph W., 79 A.3d 155, 189 (Conn. Super. Ct. 2013). The best interest analysis is designed to

give courts the discretion to determine the weight of each factor on a case-by-case basis. In re

Adoption of Tachick, 210 N.W.2d 865, 873 (Wis. 1973). The relevant best interest factors

include: the stability of the home or proposed placement; the current and future physical and

20

emotional needs of the child; and the parental abilities of the individuals seeking custody. Holley

v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

Trial court decisions regarding the best interests of a child are reviewed for abuse of

discretion because of the nature and flexibility of the analysis. Davis v. Flickinger, 674 N.E.2d

1159, 1162 (Ohio 1997). The trial court abuses its discretion only when its review of the best

interests of the child is “scant or incomplete.” Pietrzak v. Schroeder, 759 N.W.2d 734, 743 (S.D.

2009). Further, if a trial court’s judgment is “supported by some competent, credible evidence”

the decision should be affirmed. C.F. Morris Co. v. Foley Constr., 376 N.E.2d 578 (Ohio 1978).

Upon review, deference is given to the trial court’s findings on the credibility of child

welfare professionals. In re Davonta V., 940 A.2d 733, 737 (Conn. 2008). The Connecticut

Supreme Court observed that "[t]he testimony of [child welfare] professionals is given great

weight . . . and the trial court is privileged to adopt whatever testimony it reasonably believes to

be credible.” Id. In this case, the Family Court received the in-home study of the DSS social

worker, and in light of what that report stated, found that it was in Caleb’s best interest to remain

with his foster care family. (R. 12-13, 17). It was not an abuse of discretion for the Family Court

to consider the social worker’s findings in its best interest analysis.

This Court should reverse the Third Appellate Division’s holding because the New

Scotland Family Court did not abuse its discretion by finding it is in Caleb’s best interest to

remain with his foster care family and continue visitation with Jennifer L. for the following three

reasons. First, stability is a significant factor in the best interests analysis because continuity is

important in a child’s life, and allowing Caleb to remain with his foster care family is the best

way to ensure stability in his life. Second, Caleb’s physical and emotional needs are best

protected by remaining with his foster care family because Jennifer L. is unable to perform even

21

the minimal parental responsibilities. Third, allowing Caleb to remain in his permanent home

with the Smiths will offer Caleb the best opportunity to develop and thrive in a “normal family,”

which is consistent with the legislature’s intent and the state’s interest in the welfare of children.

Therefore, this Court should hold that the Family Court did not abuse its discretion and reinstate

its decision that it is in Caleb’s best interest to remain with his foster care family and maintain

visitation with Jennifer L.

A. Stability is Heavily Weighted in the Best Interests Analysis Because of its

Importance in a Child’s Life, and Remaining with His Foster Care Family is the

Best Way to Maintain Stability in Caleb’s Life.

Stability in a child’s life is important and courts therefore emphasize that factor when

looking at the best interests of a child. Considering the potential for disruption to the child’s life

and the stability of the custodian’s environment is imperative to the best interests analysis when

determining whether a custodial change is appropriate. Meredith v. Meredith, 521 So. 2d 793,

796 (La. Ct. App. 1988). In this case, Caleb’s stability is best served by remaining with his foster

care family and continuing visitation with Jennifer L.

The best interest factors are generally balanced based on the factual circumstances of the

case; however, courts have weighed the stability of the child’s life heavily. Fanning v. Fanning,

717 P.2d 346, 353 (Wyo. 1986); see also In re K.C., 219 S.W.3d 924 (Tex. Ct. App. 2007).

When considering stability, courts specifically consider such things as “the relationship and

interaction of the child with the parents, the child’s adjustment to home, school, and community,

and continuity. Roth v. Haag, 834 N.W.2d 337, 341 (S.D. 2013). Stability is an important

consideration because children need “supportive, safe, predictable, structured, stable and

nurturing caregivers.” In re Joseph W., 79 A.3d at 189. The New Scotland legislature recognized

the importance of stability when it explicitly stated its desire “for the child to grow up with a

22

normal family life in a permanent home and that such circumstances offer the best opportunity

for the child to develop and thrive.” N.S. SSL § 384-b (1) (emphasis added).

Additionally, displacement of a child who has been in the custody of a nonparent may

cause psychological trauma; therefore, a child should only be moved if the “advantages of

changing custody outweigh the essential principle of continued and stable custody of children.”

Bennett, 356 N.E.2d at 283-284. Courts are hesitant to remove a child from a home where they

are thriving in a stable environment because children need continuity and some assurance of

solidity in their parental relationships. In re Hands, 553 A.2d 1171, 1178 (Del. 1989).

Courts are especially leery in changing custody arrangements when the child has bonded

with a foster care family for a long period of time. Bennett, 356 N.E.2d at 284. Courts have

recognized thirteen months as being a sufficient period of time to indicate that the child has

bonded with the custodian nonparent, and that removing the child is not in the child’s best

interests. See, e.g., In re Marriage of Levin, 102 Cal. App. 3d 981(Cal. Ct. App. 1980). In fact,

Colorado and Texas have statutes that give a nonparent standing to seek custody of a child that

they have taken care of for over six months. See Colo. Rev. Stat. § 14-10-123(b) (2012); see also

Tex. Family Code Ann. § 102.003 (2011).

The Superior Court of Connecticut found that, where parents were unable to develop

“well-adjusted, stable and independent lives of their own” because of personality disorders, they

could not provide a stable environment for their children, and therefore should not have custody.

In re Joseph W. Jr., 79 A.3d at 190. In that case, the mother was diagnosed with narcolepsy,

which interfered with her ability to maintain alertness, retain employment, and drive her children

to school. Id. at 164. The court found that the mother was neither able to provide a stable living

environment for herself nor her children, so termination of her parental rights was proper. Id. at

23

190. In another Connecticut case, In re Eden F. the Supreme Court of Connecticut found stability

where the child had a prospect of a permanent placement with his then-current foster care family

and the other option was an uncertain situation with the child’s natural parents. In re Eden F.,

741 A.2d 873 (Conn. 1999).

In this case, Jennifer L.’s ALS prevents her from being able to parent Caleb or take care

of herself independently. Similar to the parents in In re Joseph W., this prevents Jennifer L. from

providing stability for Caleb while he is in her home. Since Jennifer L.’s diagnosis, “the family

had to move from the only home Caleb had ever known,” forcing Caleb to transfer schools and

move away from his friends. (R. 9). Further, when she was hospitalized for her hip injury, Caleb

was once again relocated to a different environment. (R. 10). As Jennifer L.’s condition worsens,

she will lose the ability to move, speak, swallow and breathe. (R. 12). Living with a mother

whose condition is deteriorating in this way would disrupt the continuity of Caleb’s life. Jennifer

L. has only approximately six months to live according to her treating physician. (R. 13). Placing

Caleb with Jennifer L. will disrupt the continuity in Caleb’s life twice, first by removing him

from the Smiths and again when Jennifer L. passes away.

Caleb has resided with the Smith family for over a year, so separating him from the

Smiths to place him with his mother will considerably disrupt his stability. (See R. 10). Caleb has

developed a relationship with his foster parents, and has “gotten along remarkably well” with

Riley Smith, their seven year old son. (R. 10). Removing Caleb from his foster care family will

separate him from his school, his soccer team, his friends, and Riley, “the big brother he never

had.” Id. Remaining in the stable home the Smiths have created is in Caleb’s best interest.

24

Stability is crucial when determining a child’s placement. To maintain stability in Caleb’s

life, and therefore best protect his well-being, he should remain with the Smith family. The New

Scotland Family Court did not abuse its discretion when it concluded that to be true.

B. Caleb’s Physical and Emotional Needs are Best Provided for by Remaining with His

Foster Care Family Under the Best Interests Analysis Because the Physical

Manifestations of Jennifer L.’s Disease Prevent Her from Meeting Caleb’s Needs.

Jennifer L. cannot provide for Caleb’s physical and emotional needs at this time, or at

any time in the future, without the assistance of “two full-time caregivers who will essentially

take care of Caleb’s needs.” (R. 14-15). Courts recognize that a child’s physical and emotional

needs are a factor in determining the best interest of a child. Holley, 544 S.W.2d at 371-72; see

also Adoption of Michael H., 898 P.2d 891, 909-910 (Cal. 1995). Another significant factor that

courts consistently look at is the ability of a custodian to parent a child. Holley, 544 S.W.2d at

371-2. This Court should reverse the Third Appellate Division, and reinstate the Family Court’s

holding that it is in the best interest of Caleb’s physical and emotional needs, now and in the

future, to remain with the Smiths. The Smiths have and will provide for Caleb’s physical and

emotional needs, whereas Jennifer L. is unable to do so.

New Scotland law allows the State to terminate parental rights of a parent who is

“unable—due to his or her mental or medical illness—to presently and for the foreseeable future

adequately care for the child.” N.S. SSL §384-b(2)(b). It is therefore appropriate to consider a

parent’s physical condition when analyzing the best interests. See Arneson v. Arneson, 670

N.W.2d 904, 912 (S.D. 2003) (citing In re Marriage of Carney, 598 P.2d 36, 42 (Cal. 1979))

(recognizing that courts are permitted to consider the fact that a terminal or physical illness may

prevent a parent from parenting when conducting a best interests analysis). The New Scotland

statute is consistent with the statutes of other states. The statutes of Arizona, Colorado, and

Illinois require courts to consider the parent’s physical condition when making placement

25

decisions. See Ariz. Rev. Stat. Ann. § 25-403(A)(5) (2013); see also Colo. Rev. Stat. § 14-10-

124(1.5)(a)(V) (2014); see also 750 Ill. Comp. Stat. § 5/602(a)(5) (2010). Additionally, when a

parent’s health actively interferes in her parenting, to the child's detriment, it is in the child’s best

interest to be placed outside of the home. In re Rasheeda K. v Tawana M., 981 N.Y.S.2d 638,

638 (N.Y. Fam. Ct. 2013).

When evaluating best interests, beyond the impact of parent’s physical condition, courts

consider the child’s needs. Garska v. McCoy, 278 S.E.2d 357, 360 (W. Va. 1981). For example,

many courts use a primary caregiver analysis, which sets out factors that reflect how a parent

meets a child’s physical and emotional needs. Id. Those factors include the following:

(1) preparing and planning of meals; (2) bathing, grooming and dressing; (3)

purchasing, cleaning, and care of clothes; (4) medical care, including nursing and

trips to physicians; (5) arranging for social interaction among peers after school,

i.e., transporting to friends' houses or, for example, to girl or boy scout meetings;

(6) arranging alternative care, i.e., babysitting, day-care, etc.; (7) putting child to

bed at night, attending to child in middle of the night, waking child in the

morning; (8) disciplining, i.e., teaching general manners and toilet training; (9)

educating, i.e., religious, cultural, social, etc.; and (10) teaching elementary skills,

i.e., reading, writing and arithmetic.

Id.

Additionally, when evaluating a child’s needs, the age of the child is a significant factor

in determining their specific needs. A child, who is approaching “middle childhood” and has

started school, is facing a critical time of physical and emotional development. Positive

Parenting Tips for Healthy Child Development: Middle Childhood (6-8 years of age), Ctr. for

Disease Control and Prevention, U.S. Dep’t of Health and Human Servs.,

http://www.cdc.gov/ncbddd/childdevelopment/positiveparenting/pdfs/middlechildhood6-8.pdf

(last updated Nov. 25, 2014). Jennifer L. is unable to provide for Caleb’s physical and emotional

needs during this crucial time.

26

1. Jennifer L. is Unable to Provide for Caleb’s Physical Needs at this Time and at

any Time in the Future.

The Colorado Court of Appeals held that the trial court properly placed children with

social services because the record reflected that the mother suffered from a disease and that the

physical manifestations of her illness contributed to “an environment which was injurious to the

welfare of each child.” In re B.W., 626 P.2d 742 (Colo. App. 1981). In that case, the mother

suffered from Huntington’s disease, which is a degenerative brain disorder and a terminal illness.

See Id. at 744 (discussing the physical and psychological manifestations of Huntington’s disease,

and its effect on a child’s environment); see also What is Huntington’s Disease?, Huntington’s

Disease Soc’y of Am., http://www.hdsa.org/about/our-mission/what-is-hd.html (last visited Jan.

9, 2015) (describing symptoms associated with Huntington’s disease). Due to the physical

manifestations of her illness, the mother was incapable of caring for her children, such as

providing the necessary care to maintain the child’s health, guidance, or well-being. In re B.W.,

626 P.2d at 744.

Similarly, in the case at hand, although Jennifer L. is cognitively able to parent, the

physical manifestations of her ALS prevent her from physically being able to do so. (See R. 13).

The in-home study established that Jennifer L. is unable to care for herself, and unable to bathe

Caleb or supervise him outside. (R. 12). It also stated that “between the time the in-home study

was initiated [and] when it was completed, Jennifer ha[d] lost the use of her right hand and arm.”

Id. Presently, Jennifer L. is confined to a wheelchair and cannot move more than four steps

without assistance by a nurse, which makes her unable to respond to Caleb in time of sickness or

emergency. (R. 10). Unfortunately, Jennifer L. has only six months to live and by the end of her

life she will have been on a breathing machine, she will have lost the use of all extremities, and

will have lost the ability to control her muscles or even open her eyes. (R. 12-13). “Jennifer L.’s

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inability now and in the future to move freely prevents her from being able to perform physical

tasks in order to take care of Caleb’s needs, such as bathing, grooming, dressing and preparing

meals.

Instead of Jennifer L. providing for Caleb’s physical needs, two full-time caregivers will

be tasked with caring for him if he is placed with Jennifer L. (R. 11). Also at some point,

“Jennifer will not be able to speak,” so she will not even be able to provide verbal guidance to

Caleb or his caregivers. (R. 12). Because Jennifer L. is unable to provide for Caleb’s physical

needs, Caleb should remain with the Smiths and continue visitation with Jennifer L.

2. Jennifer L. is Unable to Provide for Caleb’s Emotional Needs Now and in the

Future.

The Family Court correctly determined that Caleb’s emotional needs would not be

fulfilled by placing Caleb with Jennifer L. In order to provide for a child’s emotional needs, a

parent has to be able to “on a continuing, day to day basis, through interaction, companionship,

interplay and mutuality, fulfill[] the child's psychological needs for [a] parent, as well as the

child's physical needs.” Joseph Goldstein et al., Before the Best Interests of the Child 31 (1st ed.

1973). The parent also needs to ensure that a child is socializing, by playing with other children,

to encourage emotional development. Positive Parenting Tips for Healthy Child Development:

Preschoolers (3-5 years of age), Ctr. for Disease Control and Prevention, U.S. Dep’t of Health

and Human Servs.,

http://www.cdc.gov/ncbddd/childdevelopment/positiveparenting/pdfs/preschoolers3-5.pdf (last

updated Nov. 25, 2014). Moreover, for purposes of a best interests analysis, the emotional bonds

with caregivers, other than the parent, should be considered when the parents’ rights have been

terminated. In re Michael B., 604 N.E.2d 122, 124 (N.Y. 1992).

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In this case, Caleb is a five-year old whose emotional needs should be considered by this

Court. Currently, Jennifer L. is unable to supervise Caleb outside of the apartment which would

prevent him from socializing with children his age. (R. 12). In the near future, Jennifer L. will

lose her motor skills completely and her ability to communicate. (R. 13). This will prevent her

from interacting with Caleb and providing him companionship.

Caleb’s emotional well-being and growth would be better served by remaining with the

Smiths, where he has been for the past year, because the Smiths can provide for Caleb’s

emotional needs. (R. 10). Mr. and Mrs. Smith “look out for [Caleb’s] general well-being. Id.

Caleb is back at his old school and back in his old neighborhood, but he now plays soccer and

has a “big brother” to look up to. Id. Caleb is thriving with the Smiths, which suggests that his

emotional needs are also well cared for in their home. Id.

The Third Appellate Division suggested that the Family Court chose “what [it] would

want Caleb to experience as a five-year-old.” (R. 20). Rather, the Family Court instead made its

placement decision by doing as the law requires, considering the physical and emotional needs of

the child. Holley, 544 S.W.2d at 371-72. Both Caleb’s physical and emotional needs are best

served by remaining with the Smiths because Jennifer L.’s physical condition inhibits her from

being able to provide for Caleb. For the foregoing reason, the Third Appellate Division’s

decision should be reversed, and the Family Court’s decision reinstated.

C. Allowing Caleb to Remain with His Foster Care Family Will Offer Him the Best

Opportunity to Develop and Thrive in a “Normal Family Life,” Consistent with the

Legislature’s Intent and the State’s Interest in the Welfare of Children.

This Court should hold that Caleb is to remain with the Smiths because this result is not

only consistent with legislative intent, but also sustains the state’s compelling interest in

protecting the health and emotional welfare of Caleb. While it has been recognized that a parent

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has a fundamental right to make decisions regarding the custody, care and control of a child,

Stanley v. Illinois, 405 U.S. 645, 651 (1972), when the parent is no longer able to make decisions

that are in the best interests of the minor child, the State has an obligation to step in as parens

patriae and make decisions that protect the health and welfare of the child. Hiller v. Fausey, 904

A.2d 875, 894 (Penn. 2006). The state’s compelling interest is grounded in the child’s

fundamental right to have the child’s best interest be the primary concern. Hiller, 909 A.2d at

879-880. The state’s goal is to provide the child with a permanent home. Santosky II v. Kramer,

455 U.S. 745,766 (1982); see also N.S. SSL § 384-b(1)(a)(i).

The New Scotland Social Services Law, which is controlling in this case, is consistent

with these concepts. The New Scotland legislature stated, “that the health and safety of the child

is of paramount importance.” N.S. SSL § 384-b(1)(a). In regards to the child, the statute provides

that the goal is to find a permanent home and the “best opportunity for the child to develop and

thrive.” Id. at§384-b(1)(a)(i).

The Third Appellate Decision failed to place the emphasis on Caleb, and instead focused

the impact on Jennifer L. The court stated that Jennifer L. will not get to “see Caleb go to prom,

graduate from high school, go to college, start his career and even marry someday and start his

own family,” which is true no matter where Caleb lives. However, Jennifer L. missing out on

those future events does not justify placing Caleb with Jennifer L. when it is not in his best

interest to do so. When a parent, due to his or her mental or medical illness, is unable to care for

their child, the state is obligated to step in and protect the interest of the helpless minor child.

Jennifer L.’s rights are further subordinated to the state’s interest in protecting Caleb’s welfare

because Jennifer L.’s parental rights have been terminated. Jennifer L. stands in no better

position than any other interested third party.

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Moreover, if Caleb is sent to live with Jennifer L., “two full-time caregivers [] will

essentially take care of Caleb’s needs,” not Jennifer L. (R. 15). Caleb will go from a happy and

active young boy that plays soccer, lives in the neighborhood that he grew up in, and in the

school that he has always been in, to living with a terminally ill parent who is unable to provide

for his needs. Caleb will lose the connection that he has with friends and the Smiths, until

Jennifer L. passes and Caleb’s entire life is again flipped on its end.

If this Court reinstates the Family Court’s decision, Caleb will still continue visitation

twice a week and every weekend so that he can maintain his relationship with Jennifer L., but be

spared the agony of watching Jennifer L. suffer and die before his eyes. Visitation will allow

Caleb to create memories with his mother, to continue the relationship with his mother, but also

allow him the stability of remaining with the Smiths. Therefore, this Court should reverse the

decision of the Third Appellate Division because it is in Caleb’s best interest to remain with his

foster care family and continue visitation with Jennifer L., which is consistent with the

legislature’s intent and the state’s interest in Caleb’s welfare.

CONCLUSION

For the foregoing reasons the Respondent-Appellant respectfully requests that this Court

reverse the Third Appellate Division’s decision and reinstate the Family Court’s decision that

DSS did not violate the ADA when it declined to provide two full time caregivers to Jennifer L.

and it is in Caleb’s best interest to remain with his foster care family.

Respectfully Submitted,

/s/

Team No. 653

Counsel for the Respondent-Appellant