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 RESPONDENT-APPELLANT, NEW SCOTLAND COUNTY DEPARTMENT OF SOCIAL SERVICES

Team 968 Counsel for Respondent-Appellant, New Scotland County Department of Social Services

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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 declined to provide a terminally ill parent with rehabilitative services as part of a reunification plan.

II. Whether the State of New Scotland, Third Appellate Division, correctly determined that living with a terminally ill parent, instead of remaining with a foster family, was in the best interests of the child.

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TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................................ ii

TABLE OF AUTHORITIES ........................................................................................................v

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

SUMMARY OF THE ARGUMENT ...........................................................................................3

ARGUMENT ..................................................................................................................................4

I. THE THIRD APPELLATE DIVISION INCORRECTLY DETERMINED THAT DSS VIOLATED THE ADA BECAUSE PETITIONER-APPELLEE WAS NOT A QUALIFIED INDIVIDUAL FOR REHABILITATIVE SERVICES, DSS DID PROVIDE FREQUENT VISITATION, AND HER REQUESTED ACCOMMODATION WAS UNREASONABLE .................................4 A. Petitioner-Appellee is not a “qualified individual with a disability”

because she does not meet the essential eligibility requirements for participation in rehabilitative services provided through a reunification program ........................................................................................................................5

B. If Petitioner-Appellee is a “qualified individual with a disability,” DSS

did not exclude her from participation in DSS services because she was granted visitation when rehabilitative services were not possible ...........................8

C. If Petitioner-Appellee was excluded from services, DSS did not discriminate based on Petitioner-Appellee’s disability because the requested accommodation was unreasonable ...........................................................9

1. Petitioner-Appellee’s request for the accommodation is unreasonable

because it would fundamentally alter the rehabilitative nature of the DSS reunification program .................................................................................10

2. Petitioner-Appellee’s request for the accommodation is unreasonable

because it would impose an undue financial and administrative burden on DSS .....................................................................................................13

II. THE THIRD APPELLATE DIVISION INCORRECTLY DETERMINED

THAT CALEB SHOULD BE REUNITED WITH THE PETITIONER-APPELLEE BECAUSE SHE IS AN UNFIT PARENT AND IT IS NOT IN CALEB’S BEST INTEREST ................................................................................................16

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A. Petitioner-Appellee is an unfit parent because her physical limitations adversely affect Caleb’s well-being, and she cannot provide a proper and safe living condition for her son ................................................................................17

1. Petitioner-Appellee is unfit because her physical limitations inflict an

adverse effect on Caleb’s well-being ..................................................................18

2. Petitioner-Appellee is unfit because she cannot provide a safe and stable environment for her son ...........................................................................20

B. It is within Caleb’s best interests to remain with the foster family, even if

Petitioner-Appellee is a fit parent .............................................................................21

1. Caleb’s physical safety cannot be maintained by the Petitioner-Appellee because of her own physical limitations .............................................22

2. Caleb’s social development would be hindered by living with

Petitioner-Appellee because her physical limitations confine him to the home ................................................................................................................24

3. Caleb’s interest in his emotional and psychological well-being cannot be developed by living with his mother because her condition is unstable .................................................................................................................25

CONCLUSION ............................................................................................................................27

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TABLE OF AUTHORITIES

Cases Ability Ctr. of Greater Toledo v. City of Sandusky, 133 F. Supp. 2d 589 (N.D. Ohio 2001) ....................................................................................... 4 A.W. v. T.D., 79 A.3d 1045 (N.J. Super. Ct. Ch. Div. 2013) .................................................................... 18, 19 B.S. v. Cullman Cnty. Dep’t of Human Res., 865 So. 2d 1188 (Ala. Civ. App. 2003) .............................................................................. 13, 14 Colbert v. Int’l Sec. Bureau Inc., 437 N.Y.S.2d 360 (App. Div. 1981) ........................................................................................... 8 Dep’t of Human Servs. v. M.K., 306 P.3d 763 (Or. Ct. App. 2013) ............................................................................................. 14 Dintruff v. McGreevy, 316 N.E.2d 716 (N.Y. 1974) ..................................................................................................... 25 Easley by Easley v. Snider, 36 F.3d 297 (3d Cir. 1994)................................................................................................ 3, 4, 10 Eschbach v. Eschbach, 436 N.E.2d 1260 (N.Y. 1982) ............................................................................................. 19, 22 Estroff v. Chatterjee, 660 S.E.2d 73 (N.C. Ct. App. 2008) ..................................................................................... 3, 16 Fish v. Fish, 939 A.2d 1040 (Conn. 2008) .................................................................................................... 25 Fla. Bar v. Clement, 994 F. Supp. 878 (E.D. Mich. 1998) ........................................................................................... 5 Fobar v. City of Dearborn Heights, 662 So. 2d 690 (Fla. 1995).......................................................................................................... 5 Gotham v. Gotham, 477 N.Y.S.2d 788 (App. Div. 1984) ................................................................................... 18, 25 Hatz v. Hatz, 468 N.Y.S.2d 943 (App. Div. 1983) .................................................................................. passim

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Haynes v. Haynes, 286 N.W.2d 108 (Neb. 1979) .................................................................................................... 21 Herrera v. Herrera, 409 S.W.2d 395 (Tex. 1966) ..................................................................................................... 21 In re Adoption/Guardianship Nos. J9610436 & J9711031, 796 A.2d 778 (Md. 2002) ........................................................................................................ 11 In re Chance Jahmel B., 723 N.Y.S.2d 634 (Fam. Ct. 2001) ..................................................................................... 11, 12 In re Christina L., 4 Cal. Rptr. 2d 680 (Ct. App. 1992) ...................................................................................... 6, 11 In re Dependency of H.W., 961 P.2d 963 (Wash. Ct. App. 1998) ........................................................................................ 11 In re Diamond H., 98 Cal. Rptr. 2d 715 (Ct. App. 2000). ........................................................................................ 6 In re Doe, 60 P.3d 285 (Haw. 2002) ............................................................................................................ 6 In re Doe, 58 P.3d 78 (Haw. Ct. App. 2002) ............................................................................... 6, 7, 11, 12 In re Guardianship of Estelle, 875 N.E.2d 515 (Mass. App. Ct. 2007) ........................................................................ 16, 17, 22 In re Guardianship of Williams, 869 P.2d 661 (Kan. 1994) ........................................................................................................ 17 In re Jaden E., 177 Cal. Rptr. 3d 876 (Ct. App. 2014) ................................................................................. 6, 10 In re Marriage of Carney, 598 P.2d 36 (Cal. 1979) ............................................................................................... 18, 19, 25 In re Marriage of Hruby, 748 P.2d 57 (Or. 1987) .......................................................................................... 16, 17, 22, 24 In re Marriage of Stopher, 767 N.E.2d 925 (Ill. App. Ct. 2002) ............................................................................. 19, 22, 23

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In re Nicholas B., 106 Cal. Rptr. 2d 465 (Ct. App. 2001) ........................................................................................ 8 In re N.K., 99 S.W.3d 295 (Tex. App. 2003) ....................................................................................... passim In re Precious J, 50 Cal. Rptr. 2d 385 (Ct. App. 1996) ...................................................................................... 8, 9 In re Welfare of A.J.R., 896 P.2d 1298 (Wash. Ct. App. 1995). ......................................................................... 10, 11, 12 In re Z.J., 236 P.3d 2 (Mont. 2010) ........................................................................................................... 11 In the Interest of C.M., 526 N.W.2d 562 (Iowa Ct. App. 1994). ...................................................................................... 4 In the Interest of J.L.W., 570 N.W.2d 778 (Iowa Ct. App. 1997). .................................................................................... 22 In the Interest of S.D., 980 S.W.2d 758 (Tex. App. 1998) ............................................................................... 17, 20, 25 Kiman v. N.H. Dep’t of Corr., 451 F.3d 274 (1st Cir. 2006) ...................................................................................................... 5 K.J. v. Tuscaloosa Cnty. Dep’t of Human Res., 13 So. 3d 971 (Ala. Civ. App. 2008) .......................................................................................... 6 Maxfield v. Maxfield, 452 N.W.2d 219 (Minn. 1990) .................................................................................................. 25 McPherson v. Mich. High Sch. Athletic Ass’n, 119 F.2d 453 (6th Cir. 1997). .................................................................................................. 10 Midnight Sessions, Ltd. v. Philadelphia, 945 F.2d 667 (3d Cir. 1991)........................................................................................................ 3 Nielson v. Nielson, 296 N.W.2d 483 (Neb. 1980). ............................................................................................. 17, 18 N.R. v. State Dep’t of Human Res., 606 So. 2d 161 (Ala. Civ. App. 1992). ....................................................................................... 6

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Obey v. Degling, 337 N.E.2d 601 (N.Y. 1975 ..................................................................................................... 25 Olmstead v. L.C. ex rel Zimring, 527 U.S. 581 (1999) ............................................................................................................ 13, 14 Roden v. Colburn, 522 So. 2d 290, 292 (Ala. Civ. App. 1988) .............................................................................. 17 Rodenberg-Roberts v. KinderCare Learning Ctrs., Inc., 896 F. Supp. 921 (D. Minn. 1995) ..................................................................................... 11, 14 Santiago v. Henderson, 996 N.Y.S.2d 686 (App. Div. 2014). ...................................................................... 16, 17, 18, 21 Smith v. Smith, 578 So. 2d 1342 (Ala. Civ. App. 1991) .................................................................................... 19 Stone v. Daviess Cnty. Div. of Children and Family Servs., 656 N.E.2d 824 (Ind. Ct. App. 1995) .......................................................................................... 6 Toledo v. Sanchez, 454 F.3d 24 (1st Cir. 2006). ..................................................................................................... 13 Weinreich v. Los Angeles Cnty. Metro. Transp. Auth., 114 F.3d 976 (9th Cir. 1997). ................................................................................................ 5, 8 Statutes 42 U.S.C. § 12132 (2012) ............................................................................................................... 4 42 U.S.C. § 12131(2) (2012) .......................................................................................................... 5 28 C.F.R. § 35.130(b)(7) ........................................................................................................... 4, 10 Cal. Welf. & Inst. Code § 361.2 (West 2014) ................................................................................. 6 N.S. SSL § 384-b(1)(a)(i) ............................................................................................................. 20 N.S. SSL § 384-b(3) ....................................................................................................................... 8 Other Authorities Albany County Department of Social Services,

http://www.albanycounty.com/government/departments/departmentofsocialservices.ax (last visited Jan. 15, 2015). ....................................................................................................... 10

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Children’s Understanding of Death, Hospice, https://www.hospicenet.org/html/understand.html (last visited Jan. 11, 2015). ....................... 25

Patricia Sorenson, FY14 DHS Budget: What is at Stake for Low-Income Families?, Michigan League for Public Policy (April 2013), http://www.mlpp.org/fy14-dhs-

budget-what-is-at-stake-for-low-income-families .................................................................... 14 Philip F. Schuster II, Constitutional and Family Law Implications of the Sleeper and

Troxel Cases: A Denouement for Oregon’s Psychological Parent Statute?, 3 Willamette L. Rev. 549, 557-78 (2000) ........................................................................... 16, 22 Social-Emotional Development in Young Children, Michigan Department of Community

Health 8 (2003), http://www.michigan.gov/documents/Social_Emotional_ Development_in_Young_Children_Guide_88553_7.pdf ......................................................... 24 Talking To Children About Death, Hospice,

https://www.hospicenet.org/html/talking.html (last visited Jan. 11, 2015) .............................. 27

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STATEMENT OF THE CASE Statement of Facts

After Jennifer L. (“Petitioner-Appellee”) was diagnosed with amyotrophic lateral

sclerosis (“ALS”), her physical condition deteriorated; speaking, walking, and using her fingers

and arms became extremely difficult and painful. R. at 9-10, 13. After experiencing a fall, her

condition worsened and Petitioner-Appellee was hospitalized. R. at 10. The incident resulted in

an extended hospital stay and prolonged care in a nursing home for approximately eight months.

R. at 10-11. Because of the uncertainty of her condition, and the rapidly deteriorating nature of

ALS, the Petitioner-Appellee had her parental rights in her five-year-old son, Caleb, terminated.

R. at 7, 10-11. The Petitioner-Appellee did not contest the termination. R. at 11. The New

Scotland County Department of Social Services (“DSS”) placed Caleb with a loving foster

family, who provided Caleb the opportunity to return to his old school, enroll in a soccer league,

and enjoy the company of an older brother he never had. R. at 10. The foster family has

continued to provide for Caleb’s basic needs, which include meals, baths, and care when he is

sick. R. at 10.

Upon her discharge from the nursing home, the Petitioner-Appellee returned home to the

care of her nurse and sought to regain custody and reunite with Caleb. R. at 11. Pursuant to the

New Scotland Social Services Law (“New Scotland Statute”), the Petitioner-Appellee sought

rehabilitative services through a reunification plan from DSS. R. at 11. Because of her limited

physical abilities caused by ALS, the Petitioner-Appellee specifically requested two full-time

caregivers to care for Caleb’s needs, in addition to the personal nurse DSS had already provided

to the Petitioner-Appellee. R. at 11. After a complete study within the Petitioner-Appellee’s

home, DSS determined that a reunification plan could not be created that would enable

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Petitioner-Appellee and her son to live together and denied her request for rehabilitative services.

R. at 12-13. However, DSS did provide Petitioner-Appellee with visitation services, and the

foster family ensures that Caleb is able to visit her at least twice during the week and every

weekend. R. at 10. In denying rehabilitative services, DSS further decided that it was not in

Caleb’s best interests to return to Petitioner-Appellee’s care. R. at 13. At the time of the in-

home study, the Petitioner-Appellee was wheelchair bound and her condition was rapidly

deteriorating, with a prognosis of six months left to live. R. at 12-13. Doctors further predicted

that her illness would soon render her unable to speak or swallow food, let alone provide for

Caleb’s needs. R. at 12, 16. Meanwhile, Caleb has remained with the foster family, who have

plans to adopt him. R. at 13.

Procedural History

On August 4, 2014, the Petitioner-Appellee brought a lawsuit against DSS, separate from

the parental rights termination proceedings. R. at 6. Petitioner-Appellee alleged that § 12132 of

Title II of the Americans with Disabilities Act (“ADA”) was violated when DSS did not provide

her the rehabilitative services she requested. R. at 7, 15. Petitioner-Appellee also challenged

DSS’s determination that it was in Caleb’s best interests to remain in the custody of the foster

family. R. at 7. The New Scotland Family Court found that DSS had not violated the ADA,

because Petitioner-Appellee’s request for two full-time caregivers was unreasonable. R. at 15-

17. The court also determined that it was in Caleb’s best interests to remain with the foster

family. R. at 17. On appeal in the Third Appellate Division, the court reversed, holding that

DSS violated the ADA because it failed to provide a reunification plan for Petitioner-Appellee

and that custody should be awarded to Petitioner-Appellee. R. at 22. DSS timely appealed to

this Court on February 13, 2015. R. at 5.

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Standards of Review

In determining whether a public entity failed to provide reasonable accommodations, as

required under the ADA, the court exercises a de novo judicial standard of review. See Easley

by Easley v. Snider, 36 F.3d 297, 300 (3d Cir. 1994) ("[T]he court exercises a plenary standard

of review when applying legal precepts to undisputed facts."); Midnight Sessions, Ltd. v.

Philadelphia, 945 F.2d 667, 671 n.1 (3d Cir. 1991). While questions of fact are reviewed under

an abuse of discretion standard in custody proceedings, in determining whether those factual

findings support the lower court’s use of law, the standard of review is de novo.1 Estroff v.

Chatterjee, 660 S.E.2d 73, 77 (N.C. Ct. App. 2008).

SUMMARY OF THE ARGUMENT

The Third Appellate Division incorrectly determined that DSS violated Title II of the

ADA (“Title II”). DSS did not violate the ADA because Petitioner-Appellee is not a “qualified

individual with a disability.” A qualified individual must be able to benefit from rehabilitative

services in order to be eligible to receive such services from DSS, which Petitioner-Appellee is

unable to do. DSS was not required to provide rehabilitative services, therefore the failure to do

so does not violate the ADA. Further, visitation was provided where rehabilitative services were

not possible. Even if the Petitioner-Appellee were a qualified individual who had been excluded

from DSS’s services, DSS did not discriminate based on her disability by failing to provide her

requested accommodations because her request was unreasonable. Therefore, Title II of the

ADA was not violated.

The Third Appellate Division also incorrectly determined that it was in Caleb’s best

interests to be reunited with Petitioner-Appellee. Being reunited with Petitioner-Appellee is not

in Caleb’s best interests because Petitioner-Appellee is an unfit parent. She is an unfit parent 1 In the present case, the facts are not in dispute. R. at 7.

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because her physical condition limits her ability to provide the physical care and safe home

environment that Caleb needs. However, even if Petitioner-Appellee is a fit parent, Caleb’s best

interests are not served by being reunited with her because Petitioner-Appellee cannot provide

for Caleb’s physical, social, or emotional and psychological well-being. DSS appreciates the

sensitive nature of this case, however the law requires DSS to make a decision with Caleb’s

interest at heart. Therefore, Caleb should remain in the care of the foster family. DSS

respectfully requests that this Court reverse the Third Appellate Division.

ARGUMENT

I. THE THIRD APPELLATE DIVISION INCORRECTLY DETERMINED THAT DSS VIOLATED THE ADA BECAUSE PETITIONER-APPELLEE WAS NOT A QUALIFIED INDIVIDUAL FOR REHABILITATIVE SERVICES, DSS DID PROVIDE FREQUENT VISITATION, AND HER REQUESTED ACCOMMODATION WAS UNREASONABLE.

The Third Appellate Division incorrectly determined that DSS violated the ADA by not

providing Petitioner-Appellee with rehabilitative services because Petitioner-Appellee is not

qualified for participation in those rehabilitative services and her requested accommodation is

unreasonable. Congress passed Title II to ensure that “qualified individuals with a disability” are

not discriminated against by a public entity and are not excluded from participation in, or the

benefits of, a public entity’s services, programs, or activities. 42 U.S.C. § 12132 (2012); see also

Ability Ctr. of Greater Toledo v. City of Sandusky, 133 F. Supp. 2d 589, 591 (N.D. Ohio 2001).

In order to avoid discrimination based on disability, a public entity must make “reasonable

modifications in policies, practices, or procedures” within programs or services offered by a

public entity. 28 C.F.R. § 35.130(b)(7) (2012); see also Easley, 36 F.3d 297 at 303.2

To establish a claim for a violation under Title II, a plaintiff must demonstrate the

2 Although the statutory language of Title II refers to “modifications,” many courts use the term “modifications” interchangeably with “accommodations.” See, e.g., In the Interest of C.M., 526 N.W.2d 562, 566 (Iowa Ct. App. 1994) (using the term “accommodation” when directly referencing Title II).

  5

following: (1) that he or she is a “qualified individual with a disability;” (2) who was excluded

from participation in, or was denied the benefits of, services, programs, or activities of a public

entity; and (3) that such exclusion, denial of benefits, or discrimination was the result of the

individual’s disability. See Weinreich v. Los Angeles Cnty. Metro. Transp. Auth., 114 F.3d 976,

978 (9th Cir. 1997). Here, DSS did not violate the ADA by declining to provide Petitioner-

Appellee with rehabilitative services because she failed to establish that she is a “qualified

individual with a disability,” she was provided visitation as an alternative, and her request for

two full-time caregivers was unreasonable.

A. Petitioner-Appellee is not a “qualified individual with a disability” because she does not meet the essential eligibility requirements for participation in rehabilitative services provided through a reunification program.

Petitioner-Appellee is not qualified for participation in rehabilitative services offered

through a reunification program because she cannot meet the essential eligibility requirements

for such services. To support a claim under Title II, a plaintiff must first establish that they are a

“qualified individual with a disability.” See Weinreich, 114 F.3d at 978. A “qualified individual

with a disability” is an individual with a disability who, with or without reasonable

accommodations by a public entity, “meets the essential eligibility requirements for the receipt of

services or the participation in programs or activities provided by a public entity.” § 12131(2).3

In determining qualified individual status, it is necessary to consider “a case-by-case analysis of

the disabled person and . . . the benefit he or she seeks.” Fla. Bar v. Clement, 662 So. 2d 690,

700 (Fla. 1995). If a court finds that the plaintiff is not a “qualified individual with a disability,”

the Title II claim fails. See Fobar v. City of Dearborn Heights, 994 F. Supp. 878, 882 (E.D.

3 ADA precedent establishes ALS as a disability under the ADA. See generally Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 282-290 (1st Cir. 2006) (finding the plaintiff with ALS did have a disability as required to bring a Title claim). Therefore, it is not in dispute that Petitioner-Appellee’s diagnosis of ALS constitutes a disability under the ADA.

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Mich. 1998).

Social services providers may offer programs to parents seeking to reunite with their

children through a specifically tailored reunification plan made up of various rehabilitative

services. See Stone v. Daviess Cnty. Div. of Children and Family Servs., 656 N.E.2d 824, 830-

31 (Ind. Ct. App. 1995). These programs generally include classes and training programs

intended to remedy any parental deficiencies. See K.J. v. Tuscaloosa Cnty. Dep’t of Human

Res., 13 So. 3d 971, 973 (Ala. Civ. App. 2008) (reunification plan provided counseling, therapy

sessions, and parenting-skills training); In re Diamond H., 98 Cal. Rptr. 2d 715, 718-19 (Ct. App.

2000) (reunification plan provided anger management and domestic violence classes). To be

eligible for rehabilitative services offered as part of a reunification plan, the individual must be

able to benefit from the rehabilitative services; the individual must personally gain the ability to

adequately care for his or her child. See In re Doe, 58 P.3d 78, 86-90 (Haw. Ct. App. 2002),

overruled on other grounds by In re Doe, 60 P.3d 285 (Haw. 2002).

A central goal of reunification programs is facilitating permanent parental custody. See

In re Jaden E., 177 Cal. Rptr. 3d 876, 885-86 (Ct. App. 2014) (citing Cal. Welf. & Inst. Code §

361.2 (West 2014)) (“[R]eunification services will be offered only for the purpose of facilitating

permanent parental custody of the child.”). A reunification program is not successful unless the

parent can achieve the intended result of gaining the ability to care for his or her child long-term.

See In re Christina L., 4 Cal. Rptr. 2d 680, 687 (Ct. App. 1992) (discussing the necessary

objective of a reunification plan which is to lead to the reestablishment and continuation of a

normal family relationship). Where reunification services cannot cure the parental deficiencies

and the parent’s conduct is unlikely to change in the future, the social services provider is not

required to provide services at all. See N.R. v. State Dep’t of Human Res., 606 So. 2d 161, 162-

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63 (Ala. Civ. App. 1992).

In In re Doe, two mentally disabled parents brought a Title II claim when they were

denied one full-time parental supervisor as part of a reunification program. 58 P.3d at 86-90.

The court found that the parents could not meet the first requirement of a Title II claim because

they were not “qualified individuals with a disability.” Id. at 86-88. The court determined that

neither parent was eligible for reunification services because they were not capable, even with

the assistance of a reasonable reunification services plan, of adequately caring for their child due

to their disabilities. Id.

Although, in the present case, Petitioner-Appellee’s parental rights were terminated based

on an abandonment theory, the underlying cause of the abandonment was Petitioner-Appellee’s

inability to care for Caleb due to the circumstances related to her terminal illness. While

Petitioner-Appellee’s situation was caused through no fault of her own, based on her physical

and mental limitations resulting from ALS, Petitioner-Appellee is unable to care for Caleb

without the assistance of others, indicating the presence of parental deficiencies. While two full-

time caregivers may enable Petitioner-Appellee to parent Caleb better than she could on her own,

this does not render her eligible for rehabilitative services. Petitioner-Appellee must have the

ability, on her own, to completely care for her son on a permanent basis.

Similar to In re Doe, DSS is not required to provide reunification services because

Petitioner-Appellee’s inability to adequately care for her son stems from the nature of her

disability, which although unfortunate, cannot be rehabilitated in such a way as to cure her

individual parental deficiencies. Petitioner-Appellee cannot partake in any classes, trainings,

programs, or other standard rehabilitative reunification services that would restore her ability to

parent her son and achieve the permanency that is central to reunification. Instead of her

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parental skills improving, Petitioner-Appellee’s ability to care for her son will rapidly decline as

her illness progresses, which is contradictory to the entire purpose of reunification rehabilitative

efforts. Petitioner-Appellee is not a “qualified individual with a disability” because she is not

eligible for rehabilitative services based on her inability to benefit from any of the programs

offered through reunification plans.

B. If Petitioner-Appellee is a “qualified individual with a disability,” DSS did not exclude her from participation in DSS services because she was granted visitation when rehabilitative services were not possible.

Even if this Court finds that Petitioner-Appellee is a qualified individual, she was not

denied from participation in, or the benefits of, DSS services because she was offered visitation

when rehabilitative services were, neither required, nor suitable, for Petitioner-Appellee. After

establishing that the plaintiff is a qualified individual, the plaintiff must show that he or she “was

excluded from participation in or was denied the benefits of services, programs, or activities of a

public entity.” See Weinreich, 114 F.3d at 978. The New Scotland Statute gives DSS the option

of providing parents rehabilitative services, visitation, or progress reports on the child’s

development, in an attempt to encourage a meaningful relationship between the parent and child.

N.S. SSL § 384-b(3) (emphasis added). When reunification through rehabilitation is not

possible, visitation can be utilized as an alternative, as a way of maintaining a relationship

between the biological parent and child. See In re Nicholas B., 106 Cal. Rptr. 2d 465, 475 (Ct.

App. 2001) (noting that visitation is important when actual physical custody of the child does not

occur); In re Precious J., 50 Cal. Rptr. 2d 385, 394-95 (Ct. App. 1996). Common principles of

statutory interpretation indicate that “the word ‘or’ as used in a statute is a disjunctive particle

indicating an alternative and it often connects a series of words or propositions presenting a

choice of either.” Colbert v. Int’l Sec. Bureau Inc., 437 N.Y.S.2d 360, 369 (App. Div. 1981).

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In In re Precious J., the court found that where a traditional reunification plan is

unsuitable, visitation services may be utilized. 50 Cal. Rptr. 2d at 394-95. A mother who was

incarcerated could not partake in successful reunification and instead was entitled to visitation

with her child as an alternative. Id. at 394-95. The court noted the importance of visitation in the

absence of a reunification plan and discussed that the child would benefit from visitation because

visitation still facilitated a continuing relationship with the mother. Id.

Based on the language of the New Scotland Statute, evidenced by the use of the

disjunctive “or,” DSS was not required to specifically provide rehabilitative services to

Petitioner-Appellee. DSS did not arbitrarily deny Petitioner-Appellee rehabilitative services, but

rather conducted a thorough study of the home environment, complete with an extensive

evaluation by a social worker that determined rehabilitative services were not possible. DSS did

provide visitation, which was the best alternative given the situation. Similar to the incarcerated

mother in In re Precious J., Petitioner-Appellee’s unfortunate situation is unsuitable for a

reunification plan, yet she is still able to enjoy the benefits of frequent visitation, which the

current schedule provides at a minimum of twice during the week and every weekend. The New

Scotland Statute offers DSS a variety of options for encouraging familial relationships, and

therefore, DSS was not specifically required to provide rehabilitative services and did not

exclude Petitioner-Appellee from any program or service that she was entitled to receive. Thus,

Petitioner-Appellee also fails to satisfy the second element of a Title II claim.

C. If Petitioner-Appellee was excluded from services, DSS did not discriminate based on Petitioner-Appellee’s disability because the requested accommodation was unreasonable.

Petitioner-Appellee also fails to satisfy the third element because, even if this Court finds

that Petitioner-Appellee is a “qualified individual with a disability” who had been excluded from

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DSS’s services, DSS did not discriminate against Petitioner-Appellee based on her disability

because her request for two full-time caregivers was unreasonable. To satisfy the final prong of

a Title II claim, the plaintiff must establish that a public entity’s actions were based on the

plaintiff’s disability by demonstrating that the public entity could have provided reasonable

accommodations, but refused to do so. See McPherson v. Mich. High Sch. Athletic Ass’n, 119

F.2d 453, 460 (6th Cir. 1997). However, if a disabled individual requests an accommodation that

is unreasonable, a public entity has the right to refuse the accommodation. See § 35.130(b)(7).

An accommodation is unreasonable if it (1) fundamentally alters “the essential nature of the

program or (2) imposes an undue burden or hardship in light of the overall program.” See

Easley, 36 F.3d at 303. DSS did not violate Title II by denying Petitioner-Appellee’s request for

caregivers because DSS is not required to provide an accommodation that would fundamentally

alter the nature of DSS rehabilitative services or impose an undue financial burden on DSS.

1. Petitioner-Appellee’s request for the accommodation is unreasonable because it would fundamentally alter the rehabilitative nature of the DSS reunification program.

DSS was not required to grant Petitioner-Appellee’s unreasonable request for two full-

time caregivers because to do so would fundamentally alter the rehabilitative nature of the DSS

reunification program. Rehabilitative services are intended to offer a helping hand to families in

a time of need and to provide temporary assistance to help parents pull through difficult family

situations.4 Rehabilitative services are not permanent services. In re Jaden E., 177 Cal. Rptr. at

885-86. Accommodations that would fundamentally alter the nature of the public entity’s

services or programs are considered unreasonable and a public entity is not required to provide

unreasonable accommodations. § 35.130(b)(7) (2012); see In re Welfare of A.J.R., 896 P.2d

4 The mission of social services providers is to help “people help themselves.” Albany County Department of Social Services, http://www.albanycounty.com/government/departments/departmentofsocialservices.aspx (last visited Jan. 15, 2015).

  11

1298, 1300 (Wash. Ct. App. 1995). Although what constitutes a fundamental alteration will

differ based on the context of the services or program, courts have found that a minimal

alteration to the existing program does not constitute a fundamental alteration, and is therefore, a

reasonable accommodation. See In re Z.J., 236 P.3d 2, 5 (Mont. 2010); In re

Adoption/Guardianship Nos. J9610436 & J9711031, 796 A.2d 778, 787 (Md. 2002).

Reasonable accommodations, within the context of reunification programs, are generally

granted in the form of specialized instructors, trainings within the home, or altered teaching

methods that are better suited for the specific needs of disabled parents. See In re Dependency of

H.W., 961 P.2d 963, 967 (Wash. Ct. App. 1998); In re Christina L., 4 Cal. Rptr. 2d at 689.

Unreasonable accommodations are programs that fundamentally alter the nature of a program,

requiring a complete change in the program rather than a simple adjustment. See Rodenberg-

Roberts v. KinderCare Learning Ctrs., Inc., 896 F. Supp. 921, 926 (D. Minn. 1995) (finding that

one-on-one child care could not be provided without fundamentally altering the nature of the

group child care program); In re Chance Jahmel B., 723 N.Y.S.2d 634, 632 (Fam. Ct. 2001).

Various courts have found that full-time care or supervision cannot be reasonably granted under

a reunification program because to do so would alter the rehabilitative nature of such programs.

See In re Doe, 58 P.3d 78 at 86-90; In re Chance Jahmel B., 723 N.Y.S.2d at 639-40 (noting that

the mentally impaired father’s request for one full-time caregiver could not be reasonably

provided, as reunification programs provide simple counseling and training, not full-time care).

In In re Welfare of A.J.R., the court found that alterations to a standard parenting class

were reasonable accommodations. 896 P.2d at 1300-03. Two developmentally disabled parents

requested an alteration to the standard parenting classes in the form of one-on-one, in-home

parental training sessions, complete with specialized teaching methods, conducted by an

  12

instructor specially trained to work with developmentally disabled adults. Id. at 300-03. The

court reasoned that such services were reasonable because they could easily be provided by

simple modifications to existing classes at a minimal expense. Id. at 1300. However, in Doe, the

court found that a full-time parental supervisor was not a reasonable accommodation. 58 P.3d at

86-90. After the parental rights of two mentally disabled parents were terminated based on their

inability to care for their child, the parents requested full-time parenting supervision in hopes

that, with the guidance of the parental supervisor, they could provide the safe home environment

that was necessary for reunification. Id. at 80-85. The Doe court found the request for full-time

parenting supervision was unreasonable as an accommodation because it would “change the

nature of the services” provided by the social services department. Id. at 90; see also In re

Chance Jahmel B., 723 N.Y.S.2d at 639-40.

While reunification plans are commonly tailored to the specific needs of parents seeking

to reunite with their children, in the present case Petitioner-Appellee requests measures far

exceeding what is reasonable. In Doe, the request for only one full-time parental supervisor was

deemed unreasonable; here, Petitioner-Appellee requests two full-time caregivers who provide a

level of care that is significantly greater than that of a supervisor. If DSS were to grant

Petitioner-Appellee’s request, it would alter the nature of the services by transforming the

reunification program from a rehabilitative program into a full-blown child-rearing program,

which already exists as a separate program in the form of the foster care system. Providing

caregivers to parents as part of a reunification plan is meant to improve parenting skills, not to

remove all responsibility from the parent to correct the conditions that resulted in the child’s

removal. Essentially, the caregivers become substitute parents.

The reasonable accommodations granted in In re Welfare of A.J.R., including the

  13

alterations to standard parenting classes, did not require the creation of a separate and distinct

service offered only to the disabled. Providing caregivers as part of a reunification plan would

require DSS to essentially create an entirely new and separate program, one that is fundamentally

different from common rehabilitative reunification services, such as counseling or training

courses. DSS is designed to provide temporary rehabilitative assistance. If Title II were

interpreted to require DSS to provide full-time caregivers to raise the children of parents who

legally are unable to care for their children, then Title II defeats the purpose of a system designed

to help parents become self-sufficient in raising their children. Further, this interpretation would

require that other disabled individuals receive the same accommodations, and the goal to

maintain family stability without government assistance would be undermined. DSS cannot

reasonably accommodate Petitioner-Appellee’s request for two-full time caregivers because to

do so would compromise the rehabilitative nature of the services provided through a

reunification program.

2. Petitioner-Appellee’s request for the accommodation is unreasonable because it would impose an undue financial and administrative burden on DSS.

Petitioner-Appellee’s request for two full-time caregivers is further unreasonable because

it would impose an undue financial and administrative burden on DSS. There is no bright line

rule for determining whether a requested accommodation is reasonable in the context of

reunification programs, but courts have found that an accommodation is not reasonable if it

would impose an undue financial or administrative burden on the public entity’s limited financial

and administrative resources. See Olmstead v. L.C. ex rel Zimring, 527 U.S. 581, 597 (1999);

Toledo v. Sanchez, 454 F.3d 24, 39 (1st Cir. 2006). It is important to consider the burden the

plaintiff’s request will impose on the public entity. See B.S. v. Cullman Cnty. Dep’t of Human

  14

Res., 865 So. 2d 1188, 1196 (Ala. Civ. App. 2003). The court must also consider the effect that

request will have on the range of other services the public entity provides to other individuals

and the obligation to distribute all services equitably. See Olmstead, 527 U.S. at 597. Social

services providers often have a limited allocated budget for reunification programs, as well as

limited human resources, that would be significantly impeded if they were required to provide

full-time caregivers.5 In terms of reunification programs, the undue burden analysis requires

courts to “consider the totality of the circumstances, including both the costs associated with

providing services and whether the parent is likely to benefit from services in a way that would

increase the chances of family reunification.” Dep’t of Human Servs. v. M.K., 306 P.3d 763,

767 (Or. Ct. App. 2013).

In Cullman County, the court found that a mother was not entitled to rehabilitative

services because, regardless of the number of services and resources provided, she could never

reunite with her child. 865 So. 2d at 1196-97. The mentally disabled mother sought

reunification services, but was denied when two experts assessed the mother’s capabilities and

found that she would not benefit from any rehabilitative services because she could never

“master the necessary skills to successfully parent on her own.” Id. at 1196. The court

recognized that providing the mother with services would place an undue financial and

administrative burden on an agency “already struggling with its duty to rehabilitate those parents

and reunite those families who can be aided by its assistance.” Id. (emphasis added).

In the present case, DSS would experience an undue financial burden if required to

provide Petitioner-Appellee with two full-time caregivers to raise Caleb until he is able to raise

5 See Rodenberg-Roberts, 896 F. Supp. at 926-27 (discussing the presence of an undue financial and administrative burden in providing one child with a one-on-one supervisor despite the company’s $2.4 million first quarter net income); see, e.g., Patricia Sorenson, FY14 DHS Budget: What is at Stake for Low-Income Families?, Michigan League for Public Policy (April 2013), http://www.mlpp.org/fy14-dhs-budget-what-is-at-stake-for-low-income-families (characterizing the budget for strengthening and reunifying families as “woefully inadequate”).

  15

himself. Similar to the mother in Cullman County, Petitioner-Appellee is unable to successfully

rehabilitate and reunite with Caleb and DSS should not be required to spend an exorbitant

amount of money on two full-time caregivers for one single parent, especially when that parent

will never achieve reunification. Social services providers have finite resources and spending

these precious resources on someone that, unfortunately, cannot be rehabilitated, inherently

equates to taking funds to support someone else’s chance at a successful reunification with his or

her child. Specifically, the financial burden would be extensive in light of the fact that DSS

would be required to pay, not only for two-full time caregivers for Petitioner-Appellee, but also

for other disabled parents who request caregivers to retain custody of their children. This request

would require a significant expenditure, far exceeding the cost for traditional reunification group

trainings and classes.

Typical counseling or training courses are open to many parents, whereas specialized

full-time caregivers would tend to one single family in a large demographic of families requiring

DSS services. Such an accommodation would require a change in the budget completely,

especially in consideration of DSS’s commitment to provide other varying services to other

individuals, and would likely require DSS to shift funds away from its other obligations and

other families. DSS would be required, not only to absorb the financial costs of paying for

Petitioner-Appellee’s two full-time caregivers, but also would be required to absorb the cost of

supplying similar accommodations to other disabled parents.

Because the requested accommodation placed an undue financial and administrative

burden on DSS, it is unreasonable. Accordingly, DSS’s denial of rehabilitative services did not

constitute discrimination based on Petitioner-Appellee’s disability. While DSS sympathizes with

the difficult position that the Petitioner-Appellee is in, and acknowledges that it is through no

  16

fault of her own, Petitioner-Appellee has not succeeded in establishing the elements required to

prove an ADA violation. The Third Appellate Division erred when it determined that DSS

violated the ADA when DSS did not provide Petitioner-Appellee with rehabilitative services

through a reunification program.

II. THE THIRD APPELLATE DIVISION INCORRECTLY DETERMINED THAT CALEB SHOULD BE REUNITED WITH THE PETITIONER-APPELLEE BECAUSE SHE IS AN UNFIT PARENT AND IT IS NOT IN CALEB’S BEST INTEREST.

The Third Appellate Division incorrectly determined that Caleb should be reunited with

his mother because she is an unfit parent. However, even if this Court determines that Petitioner-

Appellee is fit, custody should be granted to DSS because Caleb’s interests are best served by

remaining with the foster family. The “best interest of the child” standard allows the court to

consider custody disputes with the child’s interests outweighing the parent’s interests. In re

Guardianship of Estelle, 875 N.E.2d 515, 519 (Mass. App. Ct. 2007). Historically, the parents’

legal interests outweighed the child’s interests, however the law has developed to prioritize the

interests of the child above those of the parent.6 In re Marriage of Hruby, 748 P.2d 57, 60-62

(Or. 1987).

While courts generally only apply the best interest standard in custody disputes between

natural parents, when the dispute is between a natural parent and an unrelated nonparent, courts

supplement the best interest standard by also considering the parent’s abilities to care for the

child. Hruby, 748 P.2d at 63; Estroff, 660 S.E.2d at 75. In a parent-nonparent custody dispute,

the parent’s ability to provide care is analyzed before the best interests of the child are addressed.

Santiago v. Henderson, 996 N.Y.S.2d 686, 687 (App. Div. 2014). If the court determines a

6 See Philip F. Schuster II, Constitutional and Family Law Implications of the Sleeper and Troxel Cases: A Denouement for Oregon’s Psychological Parent Statute?, 36 Willamette L. Rev. 549, 557-78 (2000) (providing the nation’s legal history of court standards in child custody disputes).

  17

parent is unfit, the analysis ends and the best interests of the child would not be addressed. Id.

While preference for custody is given to the natural parent over a third party, courts may

award a third party custody if there is proof of the natural parent’s inability to provide for the

child. Id.; Hruby, 748 P.2d at 63; Nielson v. Nielson, 296 N.W.2d 483, 488 (Neb. 1980). In

determining the natural parent’s ability to provide, the courts consider the parent’s fitness. See

Roden v. Colburn, 522 So. 2d 290, 292 (Ala. Civ. App. 1988); Nielson, 296 N.W.2d at 488. See

generally In re Guardianship of Williams, 869 P.2d 661 (Kan. 1994) (finding that custody of a

child may be granted to the natural parent if the parent is not found to be unfit, and if there is no

permanent relinquishment of parental rights). Petitioner-Appellee is an unfit parent because she

cannot provide the proper care or a safe living condition for Caleb, and this Court should not

grant her custody. But, even if this Court finds that Petitioner-Appellee is a fit parent, Caleb’s

best interests are served by remaining with his foster family.

A. Petitioner-Appellee is an unfit parent because her physical limitations adversely affect Caleb’s well-being, and she cannot provide a proper and safe living condition for her son.

Petitioner-Appellee is an unfit parent because her physical limitations have an adverse

effect on Caleb’s well-being and she cannot provide a safe home environment. Being an unfit

parent does not mean that the person is not a “good” parent, but rather speaks to the person’s

ability to provide physical care and a proper living situation for the child. Estelle, 875 N.E.2d at

519; In the Interest of S.D., 980 S.W.2d 758, 763 (Tex. App. 1998).7 A parent’s physical

limitation or disability alone will not render that parent unfit; the physical limitation must cause a

negative effect on the child’s well-being. See Hatz v. Hatz, 468 N.Y.S.2d 943, 944 (App. Div.

1983). Further, the parent must provide the child with a home that is safe and stable. In re N.K.,

7 The term “fitness” does not speak to the nature of the parent, but rather “is a standard by which we measure the circumstances within the family as they affect the child’s welfare.” Estelle, 875 N.E.2d at 519 (emphasis added).

  18

99 S.W.3d 295, 301 n.9 (Tex. App. 2003). These factors are evaluated under a totality of the

circumstances, with no single factor determinative of a parent’s fitness. Gotham v. Gotham, 477

N.Y.S.2d 788, 790 (App. Div. 1984). The burden of proving that the natural parent is unfit rests

with the nonparent making the claim. Santiago, 996 N.Y.S.2d at 687. Because Petitioner-

Appellee’s physical limitations adversely affect Caleb’s well-being and she is unable to provide

a safe home, she is an unfit parent.

1. Petitioner-Appellee is unfit because her physical limitations inflict an adverse effect on Caleb’s well-being.

The Petitioner-Appellee is not a fit parent because her physical limitations negatively

affect Caleb’s well-being. Parenthood requires the performance of certain duties for, and on

behalf of, children, including the ability to provide physical care and support to the child.

Nielson, 296 N.W.2d at 488. While physical care is normally just a factor to consider, in

situations where a parent is physically disabled or limited it becomes a more weighted

consideration in determining a parent’s fitness, although it cannot be the sole reason for the

denial of custody. In re Marriage of Carney, 598 P.2d 36, 42 (Cal. 1979); see also A.W. v. T.D.,

79 A.3d 1045, 1048 (N.J. Super. Ct. Ch. Div. 2013) (holding that a court cannot rest its custody

determination solely on a person’s disability). Further, courts cannot consider the physical

“condition as prima facie evidence of the person’s unfitness as a parent.” Carney, 598 P.2d at

42. Instead, the person’s physical limitations will be examined to determine the effect they may

have on the child’s best interests. Id. There must be proof that the condition substantially

prevents the disabled parent from being able to satisfactorily function as the child’s caretaker.

A.W., 79 A.3d at 1048.

The court considers various factors to determine how a parent’s physical limitations will

affect a child’s well-being, including the parent’s actual physical capabilities, as well as the

  19

parent’s adaptation to, and management of, the physical limitation. Carney, 598 P.2d at 42; see

also Smith v. Smith, 578 So. 2d 1342, 1343 (Ala. Civ. App. 1991); Hatz, 468 N.Y.S.2d at 944.

If the court finds that the parent’s physical limitations have a substantial and adverse effect on

the child’s emotional and intellectual development, or the physical condition is unstable, then the

parent is unfit. A.W., 79 A.3d at 1047-48; Eschbach v. Eschbach, 436 N.E.2d 1260, 1263 (N.Y.

1982); see also In re Marriage of Stopher, 767 N.E.2d 925 (Ill. App. Ct. 2002) (awarding custody

to a disabled mother, as there was no evidence of danger to the child as a result of her disability).

In Carney, the court held that a quadriplegic father could retain custody of his children

because his physical disability was well-managed and did not affect the children’s well-being.

598 P.2d at 42-44. Although disabled, the father was still fairly mobile, including the ability to

drive a van, and was capable of having positive interactions with his children. Id. The court

focused on the father’s abilities to interact and manage his disability when awarding custody,

emphasizing that the children were not adversely affected by his condition and were provided

with a safe and emotionally stable home. Id. at 41-43; see also A.W., 79 A.3d at 1047-48

(finding the children’s well-being and emotional stability was of paramount importance in

determining the custodial rights of a terminally ill mother).

In the present case, Petitioner-Appellee’s physical abilities are limited, as she is

wheelchair-bound. While she has adapted to this lifestyle, she is unable to manage it, unlike the

father in Carney. ALS is a degenerative disease that will continuously worsen. This is

distinguishable from Carney where the physical conditions of the father, although severe, were at

least stable and were not going to directly result in his death. Further, Carney was still able to

adequately care for his children, including meaningful interactions that enhanced the children’s

emotional well-being. While Petitioner-Appellee does have some interaction with her son, it is

  20

limited in scope as her abilities to speak and hug her son are hampered. Soon, she will become

completely bedridden, leading to far less interaction between mother and child. Even her ability

to speak will fade, rendering her unable to offer words of comfort to Caleb as he watches her

health rapidly decline. The situation is unstable and dangerous. If Petitioner-Appellee is unable

to control her own body, she cannot control the whims of a curious five-year-old boy. Caleb

would be adversely affected by living with the Petitioner-Appellee because she is unable to

provide for him physically, and therefore, she is an unfit parent.

2. Petitioner-Appellee is unfit because she cannot provide a safe and stable environment for her son.

Petitioner-Appellee is not a fit parent because her living situation does not qualify as a

safe home. A parent must be able to provide a living situation that is appropriate for a child,

which includes a safe and permanent home. In re N.K., 99 S.W.3d at 301 n.9 (finding that

exposing a child to loss, injury, or otherwise jeopardizing the child’s well-being was

endangerment). A “life of uncertainty and instability” can seriously affect the physical and

emotional well-being of a child, and a parent must be able to provide a home that offers a sense

of permanence. In the Interest of S.D., 980 S.W.2d at 763. Further, in drafting the New

Scotland Statute, the legislature emphasized the importance of a “permanent home” that offers

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

The court in In re N.K. held that if a parent could not provide a safe environment for a

child, then parental rights would be terminated. 99 S.W.3d at 300-01. There, a mother was in

and out of jail for drug use and illegal activity, which often caused her children to be left

unattended and in dangerous living situations. Id. at 299-300. The court terminated the mother’s

rights because she had endangered her children, focusing not on her misconduct, but rather the

effect her misconduct had on her children’s well-being. Id. at 300.

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While the instant case does not involve parental misconduct as In re N.K., there are

similar safety issues apparent. Petitioner-Appellee’s home is not a safe environment for a five-

year-old because she cannot monitor his activities properly due to her physical limitations. She

is not able to keep up with a child, nor able to dispense proper medical care if the need arose.

Leaving a child unattended for extensive lengths of time constitutes endangerment. Here, while

the circumstances are different, the result is similar to that in In re N.K. because Petitioner-

Appellee cannot supervise her child at every moment of the day due to her physical limitations.

A five-year-old, like Caleb, requires parental supervision at all times and Petitioner-Appellee is

physically unable to provide that. Additionally, because Petitioner-Appellee’s disease is

unpredictable, she cannot offer a stable environment to raise Caleb. While being stricken with

such a debilitating disease is not Petitioner-Appellee’s fault nor within her control, it does create

an unstable living situation for raising a young boy. Caleb’s interests are at stake, and placing a

five-year-old in a home with limited, to no, supervision and an unstable sickly mother, is not

within his best interests. Petitioner-Appellee’s health does not allow for her to provide a stable

and safe home, which is not a proper living environment for Caleb.

B. It is within Caleb’s best interests to remain with the foster family, even if Petitioner-Appellee is a fit parent.

Even if Petitioner-Appellee is deemed fit to parent, the best interest of the child standard

requires Caleb remain with his foster family. In analyzing parent-nonparent custody disputes,

courts first evaluate the natural parent’s fitness and abilities to care for the child. Santiago, 996

N.Y.S.2d at 687. If a parent is declared unfit, the analysis ends, and custody would be placed

with the third party. Id. However, in instances where the parent is determined to be fit, the next

step would be to analyze the best interests of the child. Id.; see also Haynes v. Haynes, 286

N.W.2d 108, 109-10 (Neb. 1979); Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex. 1966)

  22

(implementing the best interest of the child standard to determine custody between the parent and

grandparents when the parent was deemed fit). The laws are formed to protect children’s

interests over the interests of their parents. In the Interest of J.L.W., 570 N.W.2d 778, 781 (Iowa

Ct. App. 1997).

The best interest standard is closely related to the parental fitness test, with “different

degrees of emphasis on the same factors.” See Estelle, 875 N.E.2d at 518-19. While the best

interest of the child standard varies somewhat among jurisdictions, all jurisdictions utilize the

same major factors.8 Some of the most important factors considered by the court for a child’s

best interests include (1) physical safety, (2) social development, and (3) emotional and

psychological well-being. See Stopher, 767 N.E.2d at 928; Hatz, 468 N.Y.2d at 944; Eschbach,

436 N.E.2d at 1263. If a parent cannot provide minimum requirements for the child, then the

child’s best interest will not be served. Hruby, 748 P.2d at 62 (“[T]he custodial right of a natural

parent is not superior to a minimum level of welfare for children.”). Petitioner-Appellee is

unable to provide for Caleb’s best interests, and Caleb should remain with the foster family.

1. Caleb’s physical safety cannot be maintained by the Petitioner-Appellee because of her own physical limitations.

Caleb’s interests are not served with Petitioner-Appellee because she cannot provide an

environment that is safe for a five-year-old. A court evaluates the quality of the parent’s home

environment to ensure it is safe for a child. Eschbach, 436 N.E.2d at 1263. A living situation

that would expose the child to injury does not serve the child’s best interests. In re N.K., 99

S.W.3d at 300. The parent must be able to keep the child safe and aid the child if an accident or

injury were to occur. Stopher, 767 N.E.2d at 928-31.

In Stopher, the court found that awarding custody to a developmentally challenged

8 Schuster, supra note 6, at 602-12, 602 n.199.

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mother was within the child’s best interests. 767 N.E.2d at 932-33. The mother had an

extremely low I.Q., but was able to provide the basic needs for her young child. Id. at 927-28.

Despite her mental limitations, the court granted the mother custody because she was still able to

adequately provide for her child by “keep[ing] him safe from harm” and other dangers. Id.

While Petitioner-Appellee has the best intentions of providing a safe home for Caleb, she

is unable to do so. Her disease has impaired her physical movements within the house, leaving

Caleb alone and unsupervised during various times as she is unable to check in on him. This

case is distinguished from Stopher, where the mother could attend to her young child’s physical

needs. In the present case, if Caleb fell and injured himself, Petitioner-Appellee would be unable

to react or help him. The essential tasks of parenthood cannot be adequately provided by

Petitioner-Appellee; meals, bathing, and applying band-aids are all outside of her capabilities.

Even if two full-time caregivers were provided by DSS, Caleb would still be in an unsafe

environment if a caregiver called in late, went home early, or if Caleb hurt himself getting out of

bed in the middle of the night when only Caleb and his mother are at home. This is not a living

situation that supports Caleb’s physical well-being and needs.

The mother in Stopher may have been limited mentally, but she was at least able to care

for herself. Here, Petitioner-Appellee can barely take care of her own physical needs, let alone

those of Caleb. In comparing the environment provided by Petitioner-Appellee with that of the

foster family, Caleb is physically safer with the foster family because they can attend to his

needs; food, baths, clothing, or a band-aid if needed. It is important to note that Caleb still has

interaction with Petitioner-Appellee through the visitation plan, which allows him to continue to

bond with his natural mother, while at the same time benefit and thrive from having a safe

environment provided by the foster family. The foster family can offer physical care and support

  24

now, through his mother’s progressing illness, and after her passing. Because of Petitioner-

Appellee’s physical limitations, she is not capable of providing a safe home for her son’s

physical well-being.

2. Caleb’s social development would be hindered by living with Petitioner-Appellee because her physical limitations confine him to the home.

Caleb’s social development would be hindered if placed with Petitioner-Appellee because

the living situation limits his social interactions. The best interest standard includes the

consideration of a child’s social development. Hatz, 468 N.Y.S.2d at 944. The analysis does not

rest on the number of social opportunities afforded to a child, but rather considers whether the

child will have access to some sort of social development, even if minimal. See Hruby, 748 P.2d

at 62. Social development is the learning process of forming relationships with others, which

begins at infancy and is greatly influenced in the preschool through grade school years.9 A child

is dependent upon their caregiver to teach the skills necessary for proper development and

interactions with others in these key formative years. Id.

At five-years-old, Caleb is just beginning to experience new social interactions.

Unfortunately, Petitioner-Appellee is unable to provide the kind of guidance Caleb needs, and is

unable to provide alternative opportunities for social interactions. The foster family is able to

take Caleb to soccer practice, and he has been re-enrolled in his former school, allowing him to

build relationships and interact with children within his age group. Further, the foster family can

provide Caleb with the support and guidance he needs, providing him with acceptable social

values and guidelines. Caleb would be better served by being in an environment in which he can

watch others interact and learn, instead of being confined within his home witnessing his

mother’s untimely passing, which is not an appropriate situation for a child’s social 9 Social-Emotional Development in Young Children, Michigan Department of Community Health 8 (2003), http://www.michigan.gov/documents/Social_Emotional_Development_in_Young_Children_Guide_88553_7.pdf.

  25

development. Because Petitioner-Appellee cannot provide the kind of guidance that is needed

for Caleb’s social development, his best interests are served by remaining with his foster family.

3. Caleb’s interest in his emotional and psychological well-being cannot be developed by living with his mother because her condition is unstable.

Caleb’s emotional well-being and development would not be best served by being

reunited with his mother because the situation is unstable. A parent must be able to provide for a

child’s emotional needs, including the child’s psychological well-being. Fish v. Fish, 939 A.2d

1040, 1084-85 (Conn. 2008) (Katz, J., concurring); Hatz, 468 N.Y.S.2d at 944; Gotham, 477

N.Y.S.2d at 790 (finding that the psychological improvement of a child was a determinative

factor in awarding custody). This includes providing guidance, love, and affection for the child,

as well as an environment that promotes healthy interactions between parent and child. Maxfield

v. Maxfield, 452 N.W.2d 219, 234 (Minn. 1990); Carney, 598 P.2d at 40. Also paramount to a

child’s psychological development is the stability of their home and the need for permanence,

including “normal routines and structure whenever possible.”10 Courts have found that situations

where children are “shuttled back and forth” do not promote a “long-term basis” of stability,

which children need. Obey v. Degling, 337 N.E.2d 601, 602 (N.Y. 1975); In re N.K., 99 S.W.3d

at 300-01; Dintruff v. McGreevy, 316 N.E.2d 716, 716 (N.Y. 1974) (“[T]he rearing of a child

requires greater stability than a roller-coaster treatment of custody.”).

In In re N.K., the court granted custody of two young children to the state because the

children’s psyche and emotional well-being were best served in a foster family. 99 S.W.3d at

300-01. While in the mother’s care, the children were subjected to neglect, drug use, and sexual

misconduct. Id. at 300, 300 n.7. The court reasoned that subjecting the children, both under four

years of age at the time, to situations of this nature constituted “emotional abuse,” and that 10 See In the Interest of S.D., 980 S.W.2d at 763-64; Children’s Understanding of Death, Hospice, https://www.hospicenet.org/html/understand.html (last visited Jan. 11, 2015).

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“establishing a stable, permanent home for a child [was] a compelling interest of the

government.” Id. at 300, 301 n.9.

Although Caleb’s situation is significantly different from that of In re N.K., the

underlying principles are the same: a parent must be able to provide stability and permanency

for a child’s emotional well-being. Unfortunately, the only certainty and permanence that

Petitioner-Appellee can offer her son is the fact that she will eventually pass away. Otherwise,

the living situation offered by her is unpredictable at best. Continuously shuffling Caleb back

and forth between caregivers while he goes through the roller coaster of emotions watching his

mother slowly pass away does not positively influence his development, but rather creates a

greater risk of harm to Caleb’s ability to build and form relationships later in life.

The foster family wants to permanently adopt Caleb after his mother passes, and is

willing and able to provide the kind of stable and permanent home that Caleb needs to develop

into a functioning and contributing adult. The harsh reality is that the Petitioner-Appellee is

going to pass away eventually, returning Caleb to the foster system he had just been removed

from and most likely, a different family. This foster family can give Caleb the emotional support

he needs as he goes through this trying time of his mother’s death, offering stability and

normalcy for a five-year-old boy. The family has also been there to listen and support Caleb

after every visit with his mother, while letting him enjoy life, soccer, and friends. Granting

custody to Petitioner-Appellee would require Caleb to watch his mother suffer, and slowly pass

away, with no other family, bonds, or attachments to support him when she is gone. Not only

would this be extremely upsetting, it would also affect his development into an emotionally

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stable adult.11 Although Petitioner-Appellee has every intention to be a good parent and does not

intend to negatively affect her child’s emotional well-being or psyche, her situation is precarious

and inevitably destined to affect Caleb’s development.

Caleb’s best interests cannot be served by being reunited with Petitioner-Appellee

because she is an unfit parent and is unable to provide a physically safe home. Further, Caleb’s

physical, social, and emotional and psychological well-being are better provided by the foster

family. Therefore, this Court should not grant custody of Caleb to the Petitioner-Appellee.

CONCLUSION

For the reasons stated above, Respondent-Appellant, New Scotland County Department

of Social Services, respectfully requests that this Court reverse the decision of the Third

Appellate Division.

11 Hospitals have strict visitation rules, only allowing children limited and short visitations with dying patients, with some hospitals excluding children completely. Talking To Children About Death, Hospice, https://www.hospicenet.org/html/talking.html (last visited Jan. 11, 2015).