Index No. 542630/13 ________________________________________________________________________

IN THE

NEW SCOTLAND COURT OF APPEALS ________________________________________________________________________

NEW SCOTLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner,

-against-

JENNIFER L.,

Respondent. ________________________________________________________________________

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

________________________________________________________________________

BRIEF FOR THE PETITIONER-APPELLEE, JENNIFER L.

Team 285 Counsel for the Petitioner-Appellee,

Jennifer L.

QUESTIONS PRESENTED

I. Whether the New Scotland Department of Social Services violated the Americans

with Disabilities Act when it failed to provide the Petitioner-Appellee with

rehabilitative services specially tailored to her individual needs in order for

Petitioner-Appellee to reunite with her son.

II. Whether it is in a child’s best interest to live with their biological parent, when the

parent, who has Lou Gehrig disease, has never demonstrated gross misconduct or

been found unfit, is cognitively able to care for the child and there is an emotional

bond between the biological parent and the child.

i

TABLE OF CONTENTS

QUESTIONS PRESENTED............................................................................................................i

TABLE OF CONTENTS................................................................................................................ii

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

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

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

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

I. JENNIFER L’S RIGHTS UNDER THE AMERICANS WITH DISABILITIES ACT WERE VIOLATED WHEN THE NEW SCOTLAND’S DEPARTMENT OF SOCIAL SERVICES FAILED TO PROVIDE THE TWO FULL-TIME CAREGIVERS SHE NEEDED TO REUNITE WITH HER SON………………….…………............................................................................4

A. DSS Failed to Provide Reasonable Accommodations to Enable Jennifer L. to Parent Her Son……………………………………...5

B. The Termination of Jennifer L.’s Parental Rights Should Be Reversed…………………………………………………………...8

II. CALEB’S BEST INTERESTS ARE SERVED BY REUNITING HIM WITH HIS BIOLOGICAL MOTHER JENNIFER L., WHO PROVIDES gggEMOTIONAL SUPPORT AND HAS NEVER BEEN FOUND TO BE AN

UNFIT PARENT………………………………………………………………...10

C. Separating Caleb From His Mother is Unwarranted Because His Mother Has a Superior Right to Nonparents And Has Never Demonstrated Gross Misconduct or Unfitness…………………..11

D. Reuniting Caleb With His Mother Fulfills the State’s Legislative Purpose of Keeping Children and Biological Paents Together.…13

E. Caleb’s Best Interests Are Served By Being Raised By A Supportive And Loving Mother Because He Cherishes His Relationship With Her, And Would Be Severely Harmed By Severance Of That Loving And Emotional Bond……………………………………………………………...14

CONCLUSION..............................................................................................................................16

ii

TABLE OF AUTHORITIES

United States Supreme Court Cases

Lassiter v. Dep’t of Soc. Srvs., 452 U.S. 18, 27 (1981)…………………………………….........10

State Cases

Carter v. Taylor, 611 So.2d 874 (Miss. 1992)………………………………………………..….11

Elmore v. Elmore, 173 S.W.3d 447 (Tenn. Ct. App.2004)……………………………………...10

Hatz v. Hatz, 97 A.D.2d 629 (N.Y. App. Div. 1983)…………………………………………....14

In re Adoption of A.C.H., 803 A.2d 224 (Pa. Super. Ct. 2002)………………………………….14

In re Adoption Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 76 A2.2d 778 (2002)………………………………………………….. 5,7,8

In re Antony B., 54 Conn. App. 463, 753 A.2d 893 (1999)……………………………………....5

In re Chance Jahmel B., 723 N.Y.S. 2d 634 (N.Y. Fam. Ct. 2001)……………………………..5,7

In re Interest of Josiah T., 17 Neb.App. 919 (Neb. Ct. App. 2009)……………………………...14

In re J.L.W., 570 N.W. 2d 778 (Iowa Ct. App. 1997)…………………………………………...10

In the Interest of C.M., 526 N.W. 2d 562 (Iowa Ct. App. 1994)………………………………….5

In the Interest of P.L., 778 N.W.2d 33, 40 (Iowa 2010)…………………………………………10

Matter of Adoption of L., 61 N.Y.2d 420 (1984)…………………………………………….12,15

Matter of Guardianship and Custody of Nereida S., 57 N.Y.2d 636 (1982)………………...10, 11

Matter of Guardianship of Jenae K.S., 196 Wis.2d 16 (Wis. Ct. App. 1995)……………..…….10

Matter of Michael B., 80 N.Y.2d 299 (1992)………………………………………………..10, 11

Matter of Sheila G., 61 N.Y.2d 368 (1984)……………………………………………………….6

Nielsen v. Nielsen, 296 N.W.2d 483 (Neb. 1980)……………………………………………….12

Spence-Chapin Adoption Service v. Polk, 29 N.Y.2d 196 (1971)…………………………..11, 12

iii

Statutory Provisions

42 U.S.C.A. §§12101……………………................................................................................... 4 42 U.S.C.A. §§12101 (1) (A)……………………………........................................................... 4 42 U.S.C.A. §§12102 (2) (A)…………........................................................................................4 42 U.S.C.A. §§12132…………...................................................................................................4, 5 N.S. SSL § 384-b (1)…………………………………………………………………………….6 N.S. SSL § 384-b (1) (ii)…………………………………………………………………………13 N.S. SSL § 384-b (3) ……………………………………………………………………………13 N.S. SSL §384 (b) (3) (a)………………………………………………………………………….5 N.Y. SOS §384……………………………………………………………………………………6

Secondary Sources

John De Witt Gregory et al., Understanding Family Law 183 (LexisNexis, 3d ed. 2005)……………………………………………………………………………………………....8

Sherry S. Zimmerman, Parents' Mental Illness or Mental Deficiency as Ground for Termination of Parental Rights—Applicability of Americans with Disabilities Act, 119 A.L.R.5th 351 (2004)…………………………………………………………………………5

iv

STATEMENT OF THE CASE

Jennifer L., a vibrant young widow and single mother of a young child, Caleb, was

unfortunately diagnosed with Lou Gehrig disease (“ALS”). (R. at 7) (“R.” refers to the record).

Prior to her ALS, she worked two jobs and still took care of Caleb’s emotional and financial

needs. Id. Caleb loves his mother. He enjoys spending quality with her and constantly seeks her

affirmation. (R. at 11).

As her ALS progressed, Jennifer L’s and Caleb’s lives were altered. Jennifer was unable

to work and eventually unable to pay her mortgage. (R. at 11). She contacted the New Scotland

Department of Social Services (“DSS”) for assistance. Id. DSS relocated Jennifer and Caleb to

the capital city of New Scotland. Id. In addition, DSS provided Jennifer with supplemental

resources such as housing, supplemental nutrition assistance, Medicaid, home energy, and

nurses, who helped both Jennifer and Caleb. Further, DSS, which funded Caleb’s schooling,

placed him in a new school, which provided transportation as well as breakfast and lunch. Id.

When Jennifer’s ALS reached another level of progression, she was hospitalized. (R. at

10). Since the length of her hospitalization was uncertain, she agreed to voluntarily terminate her

parental rights. Id. When Jennifer’s parental rights were terminated, DSS again relocated Caleb.

Id. DSS placed Caleb with the Smiths, foster parents who reside in Caleb’s former school

district. Id. The Smiths took care of Caleb in very similar ways as Jennifer and her assigned DSS

nurses did before her hospitalization. Id.

Against the odds, after eight months of intense rehabilitative physical therapy and classes

to manage her ALS, Jennifer was released from the hospital into her nurse’s care. (R. at 11).

Afterwards, although her physician, Dr. Jones, opined that Jennifer had approximately six

months to live, he did not opine her inability to reunite with her son, Caleb. (R. at 13).

1

After her release from the hospital, Jennifer, sought reunification with Caleb. Id.

Although she was physically limited, Jennifer wanted to resume her emotional, nurturing support

and parental guidance to her son. Id. Jennifer, who qualifies as a disabled individual under the

Americans with Disabilities Act (“ADA”) sought DSS to provide the necessary accommodations

to reunite her with Caleb. Id. She requested two full-time caregivers, a reasonable reunification

plan for a parent with ALS. Id.

Although the New Scotland statue, N.S. SSL § 384-b (3) (“N.S. SSL”) permits DSS to

provide a reunification plan after termination of parental rights, DSS denied Jennifer’s request.

(R. at 7). Providing the two-full time caregivers is in line with the services DSS previously

offered Jennifer when she was initially diagnosed with ALS. Further, DSS failed to provide a

viable alternative to reunite Jennifer L. with Caleb.

2

SUMMARY OF THE ARGUMENT

I. This court must affirm the Third Appellate Division’s decision and find that the New

Scotland Department of Social Services violated the Americans with Disabilities Act when it

failed to provide Petitioner-Appellee, Jennifer L., with the rehabilitative services specifically

tailored to her individual needs to reunite her with her son, Caleb.

As a disabled parent, Jennifer L., under the ADA, is entitled to reasonable

accommodations, two full-time caregivers, to reunite her with Caleb. Failure to provide such

accommodations does not award Jennifer an equal opportunity to parent her child. Thus,

upholding the New Scotland Family Court’s decision to terminate Jennifer L.’s parental rights

would be unjust. Jennifer is entitled to two-full time caregivers to assist in reuniting her with

son. Consequently, her parental rights should be restored.

II. This court must affirm the Third Appellate Division’s decision and find that reuniting

Caleb with his mother, Jennifer L., is in his best interests because she provides emotional support

and well-being, has a superior right to nonparents, and has never demonstrated gross misconduct

or unfitness. Severing this parent-child relationship would have detrimental effects on Caleb.

3

ARGUMENT

I. JENNIFER L.’S RIGHTS UNDER THE AMERICANS WITH DISABILITIES ACT WERE VIOLATED WHEN THE NEW SCOTLAND’S DEPARTMENT OF SOCIAL SERVICES FAILED TO PROVIDE THE TWO FULL-TIME CAREGIVERS SHE NEEDED TO REUNITE WITH HER SON

In compliance with the Americans with Disabilities Act (“ADA”), DSS should

accommodate Jennifer L. with the two caregivers she needs to reunite with her son, Caleb. The

“ADA” was enacted to ensure that physically disabled persons are not discriminated against

because of their disability but awarded “equality of opportunity, full participation, independent

living and economic self-sufficiency.” 42 U.S.C.A. §§12101 et. seq. A person is disabled under

the ADA if the individual’s physical impairment substantially limits one or more major life

activities of such an individual. 42 U.S.C.A. §12101 (1) (A). Major life activities include but are

not limited to caring for oneself, performing manual tasks, walking and standing. 42 U.S.C.A.

§12102 (2) (A). Further, no qualified disabled person “shall by reason of a disability be excluded

from participating in or be denied benefits of services, programs or activities of a public entity or

be subjected to discrimination by such entity.” 42 U.S.C.A. §12132.

Jennifer L., undoubtedly, qualifies as a disabled person under the ADA because her physical

impairment, due to ALS, substantially limits one or more major life activities such as performing

manual tasks, walking and standing. (R. at 7, 9, 12, 13). Under the ADA, Jennifer should not be

excluded from participating in or be denied benefits of services, such as a reunification plan, of a

public entity, like DSS, or be subject to discrimination by such public entity because of her

disability. When DSS failed to provide Jennifer with the necessary accommodations for

reunification with her son Caleb, it violated Jennifer’s rights under the ADA.

4

The New Scotland Family Court’s decision to terminate Jennifer L.’s parental right should be

reversed. With the proper accommodations, in compliance with the ADA, Jennifer could

successfully maintain her role as a loving and nurturing parent for her son Caleb.

A. DSS Failed to Provide Reasonable Accommodations to Enable Jennifer L. to Parent Her Son.

By denying Jennifer’s ADA accommodation requests, DDS violated the Americans With

Disabilities Act. The ADA requires that state social service entities make “reasonable

accommodations to allow a disabled person to receive services or to participate in its programs.”

In the Interest of C.M., 526 N.W. 2d 562, 566 (Iowa Ct. App. 1994). See also §12132. Such

entities must, therefore, ensure that disabled parents are not subject to even inadvertent

discrimination and thus, tailor reunification services and programs to meet the parents

specialized needs. See generally Sherry S. Zimmerman, Annot., Parents' Mental Illness or

Mental Deficiency as Ground for Termination of Parental Rights—Applicability of Americans

with Disabilities Act, 119 A.L.R.5th 351 (2004), citing In re Antony B., 54 Conn. App. 463, 753

A.2d 893(1999); In re Adoption Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 76

A2d 778 (2002). (Court held that the reunification services were deficient to meet the disabled

parents needs).

New Scotland’s Social Services Statute §N.S. SSL §384 (b) (3) (a), states that it will “make

every reasonable effort to assist, develop and encourage a meaningful relationship between the

parent(s) and child, even after that parent’s rights have been terminated, but before the child is

adopted by another family, including but not limited to creating a rehabilitative services plan

with appropriate services to enable the child and his or her parent(s) to successfully reunite.” (R.

at 7).

5

Jennifer L. requested two-full time caregivers, the rehabilitative services tailored to her

individual needs to reunite her with her son Caleb. (R. at 11). Those services are reasonable

because Jennifer has about six months to live and spending quality with, Caleb, her only child, is

undoubtedly important. (R. at 13). Although N.S. SSL permits it to do so, DSS, not only denied

Jennifer’s request for rehabilitative services but also failed to provide any alternatives to “make

every reasonable effort to assist, develop and encourage a meaningful relationship” between

Jennifer and her son Caleb. Thus, DSS failed to comply with its own statue and such non-

compliance violated Jennifer’s rights under the ADA.

Under the New York Social Services Law, §384-b, the Legislature has charged child-care

agencies with a specific obligation to assist parents in regaining custody of their children

committed to foster care. In Matter of Sheila G., 61 N.Y.2d 368, 385 (1984). In addition, the

Legislature has recognized that the degree to which parents have upheld their obligations to such

children cannot be meaningfully measured when the agency itself has not undertaken diligent

efforts to reunite the parent and child. Id. Further, the Legislature has declared that, the State, as

a matter of public policy, may not intervene to terminate a parent's rights when its assistance in

strengthening the family has not been forthcoming. Id.

The language in N.S. SSL is similar to the language in the New York Social Services Law,

§384-b and thus, the legislative intent is likely similar. See N.Y. SOS. Law §384-b. Thus,

based on the similar language, it likely that New Scotland Legislature charged DSS with a

specific obligation to assist parents, like Jennifer L., to regain custody of their children

committed to foster care, like Caleb. Also, it is likely that the New Scotland Legislature

recognizes that the degree to which parents, like Jennifer L. upheld their obligations to their

children cannot be meaningfully measured when the agency, like DSS, fails to undertake diligent

6

efforts to reunite the parent and child, like Jennifer and Caleb. Further, it is likely that the New

Scotland Legislature has declared that as a matter of public policy, a State, such as New

Scotland, may not intervene and terminate a Jennifer’s L’s rights when DSS’s assistance in

strengthening her reunification with Caleb was not been forthcoming.

Parents with cognitive limitations are equally, if not more, restricted in their parenting skills

as parents with only physical limitations. Courts have held that state social agencies must offer

parents with cognitive disabilities reasonable accommodations to parent their children. In re

Adoption Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 76 A2d 778 (2002). For

example, In re Adoption Guardianship, the court held a father with cognitive disabilities was

entitled to reasonable accommodations to parent his children and that the state failed to offer

such accommodations. Id. Consequently, parents with cognitive limitations are entitled to

reasonable accommodations to parent their children, and, parents with physical limitations, like

Jennifer L., are also entitled to the same or similar reasonable accommodations.

The lower court misapplied In re Chance Jahmel B., 723 N.Y.S.2d 634 (N.Y. Fam. Ct. 2001).

In that case, the biological father, Mr. B’s suffered a traumatic brain injury, which caused his

mental illness and disability. Id. at 636. Mr. B’s primary physician, neuropsychologist and court

appointed psychiatrist all agreed that he was not capable of caring for his son, because of his

incurable impaired memory and judgment. Id. The court held that based on Mr. B’s incurable

impaired memory and judgment, no accommodations would suffice in promoting the

independent parenting needed to care for his son. Id. Therefore, any denial of such

accommodations would not violate the Mr. B’s ADA rights. Id.

Jennifer L. is unlike Mr. B in In re Chance Jahmel B. Her disability is not mental but only

physical. DSS social worker acknowledged that Jennifer is mentally capable of parenting Caleb.

7

(R. at 13). Unlike Mr. B, Jennifer’s primary physician, neuropsychologist or court appointed

psychiatrist have not opined Jennifer mental or physically incapable of parenting her son.

Further, since Jennifer’s disability is not based on an incurable memory or judgment, DSS should

have provided accommodations to reunite her with Caleb and the denial of those

accommodations, unlike Mr. B, violate Jennifer’s ADA rights.

B. The Termination of Jennifer L.’s Parental Rights Should Be Reversed.

This court must reverse the termination of Jennifer’s parental rights. Termination of parental

rights may occur in one of two ways.1 One way is for the natural parent to voluntarily relinquish

parental rights, oftentimes through a licensed child-care agency. Id. Alternatively, a state agency

may seek termination, through a judicial proceeding by showing that the natural parent was unfit

because the child was abandoned, abused or persistently neglected. Id. As a result of this

termination, a child is usually placed in a foster home and eventually adopted. Id. It is well

established that even after termination but before adoption, some jurisdictions allow parents to be

reunified with their child. Further, courts have reversed the termination of parental rights when

the state failed to offer special services to accommodate a disabled individual in parenting their

children. In re Adoption Guardianship, 368 Md. 666, 76 A2d 778 (2002) (A court reversed the

termination of parental rights of a father with a cognitive disability because the state failed to

offer specialized services to help him parent his children).

Jennifer L. is similar to the disabled parent in In re Adoption Guardianship. Similar to that

case, the New Scotland failed to provide Jennifer with the necessary accommodations to assist

her as a disabled parent. Thus, similar to In re Adoption Guardianship, the termination of

Jennifer L.’s parental rights should be reversed because New Scotland failed to offer services to

accommodate her in parenting her son Caleb.

1 John De Witt Gregory et al., Understanding Family Law 183 (LexisNexis, 3d ed. 2005).

8

When Jennifer was admitted to the hospital, she voluntary relinquished her parental rights

because her release date from the hospital was uncertain. (R. at 10). After eight months of

intense rehabilitative therapy and classes, Jennifer who was released from the hospital, rightfully

sought reunification with her son Caleb. (R. at 11). Under N.S. SSL, New Scotland is a

jurisdiction that allows parent and child reunification even after the parent rights were

terminated. DSS, however, denied Jennifer’s request for two full-time caregivers, a method to

ensure reunification with her son Caleb.

Further, DSS failed to establish that Jennifer L.’s termination should be upheld when she no

longer desire to relinquish her parental rights. DSS failed to establish that termination should be

upheld because Jennifer L. is an unfit parent because she abandoned, abused or persistently

neglected Caleb.

DSS failure to accommodate Jennifer after her hospitalization is contrary to the services it

provided when Jennifer was initially diagnosed with Lou Gehrig disease. (R. at 9). When

Jennifer L. was diagnosed with that disease, DSS willing provided her with supplemental living

resources, including nurses who came to her apartment to assist her and Caleb. Id. DSS paid

Caleb’s full-time daycare program, which included transportation to and from school as well as

his breakfast and lunch. Jennifer’s nurses made Caleb’s dinner. Although physically limited,

Jennifer was still able to provide her maternal love and emotional support to Caleb, a biological

mother’s essential attributes.

Limited weekly visits with Caleb, will limit Jennifer’s opportunity to bond with further with

her son during the remaining months of her life. (R. at 11). Upholding Jennifer L’s termination

of parental rights is not justified and her parental rights should not be reduced to a minimum of

weekly visits. DSS denial of an accommodation that was once provided, without justification,

9

should reverse Jennifer L.’s termination of parental rights and implement reunification services

with her son Caleb.

Further, the rights of children do not automatically rise above the rights and needs of parents.

In the Interest of P.L., 778 N.W. 2d 33, 40 (Iowa 2010) overruled In re J.L.W., 570 N.W.2d 778,

781 (Iowa Ct. App. 1994). Thus, a parent’s right to raise his or her child is an important interest

warranting deference and, absent a powerful countervailing interest, requires protection. Id.,

citing Lassiter v. Dep’t of Soc. Services, 452 U.S. 18, 27 (1981). DSS’s failure to provide

Jennifer L., a disabled parent, with two full-time caregivers, a reasonable accommodation to

assist in her parenting her son, is inconsistent with the Jennifer’s constitutional right to raise

Caleb.

II. CALEB’S BEST INTERESTS ARE SERVED BY REUNITING HIM WITH HISMOTHER JENNIFER L. WHO PROVIDES EMOTIONAL SUPPORT ANDWELL-BEING AND HAS NEVER BEEN FOUND TO BE UNFIT

Caleb’s best interests are served by ensuring that the strong emotional ties he has with his

mother remain intact. Unless the parent demonstrates gross misconduct, a child’s best interest is

served when raised by their biological parent. Spence-Chapin Adoption Service v. Polk, 29

N.Y.2d 196, 204 (1971). In a custody dispute between a biological parent and foster parent, the

best interests of the child are not determined by comparing the parties but rather by focusing on

whether or not the biological parent is unfit. Matter of Michael B., 80 N.Y.2d 299, 309 (1992). A

parent is unfit when the parent persistently neglects his or her child, poses a risk of substantial

harm to the child, suffers from a grave mental illness, or a parent’s immoral conduct negatively

affects the child’s best interest. Matter of Guardianship of Jenae K.S., 196 Wis.2d 16, 21 (Wis.

Ct. App. 1995). Elmore v. Elmore, 173 S.W.3d 447, 451 (Tenn. Ct. App. 2004). Matter of

10

Guardianship and Custody of Nereida S., 57 N.Y.2d 636, 640 (1982). Carter v. Taylor, 611

So.2d 874 (Miss. 1992).

The record indicates that Jennifer L. has never demonstrated gross misconduct or

unfitness. In fact, the opposite is true and the record overwhelmingly illustrates how “Jennifer is

a good mom who has done everything for her son.” (R. at 11.) Caleb’s best interests, therefore,

are served by reuniting him with his biological mother because Jennifer is nothing but a loving

and supportive mother who has never demonstrated gross misconduct or unfitness.

C. Separating Caleb From His Mother is Unwarranted Because His Mother Has A Superior Right to Nonparents And Has Never Demonstrated Gross Misconduct Or Unfitness.

Caleb’s best interests are served by reuniting him with his biological mother, Jennifer L.,

because as demonstrated by professionals on the record she “is a good mom who has done

everything for her son” (R. at 11.) and is “mentally capable” with a “fully functioning brain.” (R.

at 13,) “A biological parent has a right to the care and custody of a child, superior to that of

others, unless the parent has abandoned that right or is proven unfit to assume the duties and

privileges of parenthood, even though the State perhaps could find ‘better’ parents.” Matter of

Michael B., 80 N.Y.2d at 309 (ruling that a father who abused alcohol and sought rehabilitative

treatment could be reunited with his children even if the foster parents were better able to

provide a normal and comfortable home environment). It is a “generally accepted view that a

child's best interest is that it be raised by its parent unless the parent is disqualified by gross

misconduct.” Polk, 29 N.Y.2d at 204 (finding that a child who was living with loving foster

parents must be returned to its mother because she had never been found to be unfit - despite the

financial obstacles she faced as a single and low-income mother). Further, a child’s custody

should be determined by the “best interest of the child, with due regard for the superior rights of

11

a fit, proper, and suitable parent” and not based on the comparative analysis between the birth

mother and foster parents. Nielsen v. Nielsen, 296 N.W.2d 483, 488 (Neb. 1980).

Cases regarding custody between parent and nonparents cannot be resolved by

determining which party is better equipped to raise the child, even when the nonparents gained

custody with the parent’s consent. Polk, 29 N.Y.2d at 204. The burden, therefore, rests not on the

biological parent to prove that she is a better parent but rather on the nonparents to prove that the

biological parent is unfit. Id. While the nonparent may ‘provide’ a better lifestyle their rights

cannot trump those of a loving, nurturing, and supportive biological mother. Matter of Adoption

of L., 61 N.Y.2d 420 (1984) (ordering that a child be returned to its mother - who had never been

found to be unfit - even if the foster parents had cared for the child from birth until she was four

and they had material advantages over the mother’s poverty and alienage.)

In Polk, a young mother temporarily surrendered her child until she could resolve

personal issues. Polk, 29 N.Y.2d at 204. The child was placed with a loving and caring family.

Id. While the child may have had a more comfortable life with the foster family, the court

determined that despite a troubled parenthood, the mother should raise the child because she had

not been found to be unfit. Id.

Our case is similar to Polk. Thus, the burden of determining the Caleb’s custody rests not

on his biological mother, Jennifer L. but on his foster parents, the Smith to prove that Jennifer is

unfit. While the Smiths may be able to provide transportation, wash his clothes, play outside,

their rights cannot trump those of a loving, nurturing, and supportive mother, Jennifer L.

Furthermore, the lifestyle the Smith’s provided Caleb should not factor into the Court’s best

interests analysis, as Jennifer has never demonstrated gross misconduct or unfitness.

12

Caleb’s best interests are served by reuniting him with his mother, Jennifer L. As a

biological parent she maintains a superior right to nonparents, like the Smiths. Additionally,

Jennifer L. she has never been found to be unfit. Further, she could fulfill her parental

obligations under the N.S. SSL §384 (b) (3) when the Department of Social Services provides

the reasonable accommodation in compliance with the ADA.

D. Reuniting Caleb With His Mother Fulfills the State’s Legislative Purpose of Keeping Children And Biological Parents Together.

The nurturing and supportive bond that Caleb has with his mother serves his best

interests. The text of N.S. SSL §384 demonstrates the legislative purpose to keep birth parents

and their children together, as it places an affirmative duty on State agencies to “make every

reasonable effort to assist, develop, and encourage a meaningful relationship between the

parent(s) and child, even after the parent’s rights have been terminated,” including creating a

plan to successfully reunite parents with their children. N.S. SSL § 384-b(1).

N.S. SSL § 384-b(1)(ii) provides: “the State’s first obligation is to…reunite [the family]

if the child has already left the home.” Additionally, N.S. SSL § 384-b(3) provides: “The

authorized agency shall make every reasonable effort to assist, develop and encourage a

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

terminated…” By enacting this law, the Legislature emphasized the importance of the reuniting

the biological parent with their children. Despite the affirmative duty and emphasis created by

the statute to reunite children with their biological parents, even after termination of parental

rights, the State failed to do so by refusing to reunite Caleb with his loving mother.

13

Reuniting Caleb with his loving and supportive mother satisfies the statute’s intent and

keeps the child with his birth mother, who has superior rights to nonparents. Additionally, it is

important to recognize that Caleb was not separated from his mother because she was found to

be unfit. Rather, the Family Court relied on the Department of Social Services assumption that

Jennifer would never return home after she was placed in a nursing home. (R. at 6.) Jennifer

fought hard to return home and now seeks to be reunited with Caleb. Caleb’s best interest would

be served by reuniting him with his mother Jennifer – who loves him unconditional, works hard

to educate him, provides support, and deeply cares for her son.

E. Caleb’s Best Interests Are Served By Being Raised By A Supportive And Loving Mother Because He Cherishes His Relationship With Her, And Would Be Severely Harmed By Severance Of That Loving And Emotional Bond.

Despite the evidence demonstrating that Jennifer is a terrific mother, the lower court

erroneously analyzed the role of a parent. Its’ determination rested on the assumption that

parenting is essentially a physical task. Physical disability, however, does not automatically

render a parent unfit. For instance, a court held that a paraplegic parent’s disability did not render

her unfit to care for her children. Hatz v. Hatz, 97 A.D.2d 629 (N.Y. App. Div. 1983).

Additionally, a parent’s incarceration does not in itself render him or her unfit despite the fact

that they presumably cannot lift their children, clean up after the child, or run with the child. In

re Interest of Josiah T., 17 Neb.App. 919, 929 (Neb. Ct. App. 2009) (holding that evidence of a

mother’s incarceration was insufficient to demonstrate neglect, thus termination of parental

rights was unwarranted). The courts have recognized that parenting remains an emotional bond

at the core and “continuity of relationships is important to a child, and … severance of close

parental ties through a termination of parental rights can be extremely painful.” In re Adoption of

A.C.H., 803 A.2d 224, 230 (Pa. Super. Ct. 2002).

14

Here, the record demonstrates that Caleb enjoys and benefits from his relationship with

mother. The court recognized that “Caleb treasures the time he spends with his mom.” (R. at 11.)

Caleb and Jennifer read together, he looks to his mother for approval, and “Jennifer is a good

mom who has done everything for her son.” (R. at 11.) Jennifer persevered and fought hard to

return home – against all odds – so that she might continue to be the wonderful mother that she is

to Caleb. Additionally, the social worker assigned to the case found that Jennifer was mentally

competent and that “[s]he is a good mom and has made every unselfish decision for her son.” (R.

at 13.) Caleb benefits from that valuable relationship with his mother and should therefore be

reunited with his mother.

In Matter of Adoption of L., a biological mother was trying to regain custody of her

child. 61 N.Y.2d 420, 427 (1984). In that case, the court found that the bests interests of a child

would be best served by a biological parent-child reunification since, as the record in that case

indicated, the mother has “been very devoted, dedicated to the struggle to regain her child…by

her persistent visits to the child, as well as by her legal efforts.” Id.Our case is similar to Matter

of Adoption of L. As Jennifer L. is devoted to mother, who provide love and support to Caleb,

this court similar to Matter of Adoption of L., should allow Jennifer to regain custody of Caleb.

In line with case law and precedent, this Court must affirm the Appellate Division’s

decision to reunite Caleb with his mother. Coupled with the physical assistance of caretakers and

Jennifer’s unconditional love and support, Caleb would thrive and benefit from reunification.

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CONCLUSION

For the reasons stated herein, Petitioner- Appellee, Jennifer L., respectfully requests that

this Court affirm the decision of the Third Appellate Division.

Respectfully Submitted, /s /_________________________

Team 285 Counself for the Petitioner-Appellee, Jennifer L.

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