In re Elijah C.
The respondent mother appealed from the judgment of the Appellate Court, which dismissed her appeal from the trial court‘s judgment terminating her parental rights with respect to her minor child, E. The trial court found by clear and convincing evidence, as required by statute (
1. This court could not conclude that the respondent‘s challenge to the trial court‘s finding that she was unable to benefit from the department‘s reunification services was inadequately briefed in the Appellate Court, and, therefore, that court improperly dismissed the respondent‘s appeal as moot; although the respondent‘s argument regarding that finding was not comprehensive, cited no authority apart from the applicable statutes and rules of practice, failed to address certain evidence that strongly supported that finding, and was relegated to the section of her brief contesting the finding regarding whether the department‘s reunification efforts were reasonable, her claim was reasonably discernable from the record and sufficiently clear to permit the Appellate Court to address it on the merits, in light of the relative simplicity and interdependence of the respondent‘s briefed claims regarding the trial court‘s finding regarding the reasonableness of the department‘s reunification efforts, the impact that the department‘s alleged reduction of its reunification services had on the success of the respondent‘s reunification efforts, and the department‘s failure to provide the reunification services that the trial court previously had determined were reasonable and appropriate in view of the respondent‘s cognitive deficits.
2. The respondent could not prevail on her claim that the trial court incorrectly determined that she had been unable to benefit from the department‘s reunification efforts because, several months before the termination hearing, the department reduced the number of the respondent‘s weekly visits with E and replaced the agency tasked with supervising one of those weekly visits with an agency whose employees were not trained to work with persons with cognitive disabilities, such as the respondent, and because the department could have done more to identify services that might have assisted her in her reunification efforts: the evidence supported the trial court‘s finding that that the respondent was unable to benefit from the department‘s reunification efforts, the trial court having properly relied on the expert opinion testimony of two evaluating psychologists that the respondent‘s cognitive deficits and psychological conditions were so severe that she could not be left alone with children and that the only way reunification could be achieved was through a program involving around-the-clock supervision of both the respondent and E, which was not available in this state; moreover, this court declined to address the respondent‘s claim that the department should have looked out of state to find a program that could provide around-the-clock supervision, she having failed to raise that claim in the trial court, and, in any event, the respondent cited no authority to
The role that the Americans with Disabilities Act of 1990 (
PALMER J. In this certified appeal, the respondent, Marquita C., appeals from the judgment of Appellate Court, which dismissed her appeal from the judgment of the trial court terminating her parental rights as to her son, Elijah C.1 See In re Elijah C., 164 Conn. App. 518, 519, 137 A.3d 944 (2016). The respondent claims that the Appellate Court incorrectly concluded that she had failed to adequately brief one of the two independent grounds for reversing the judgment of the trial court and, consequently, that her appeal was moot. She further claims that the trial court incorrectly determined, first, that the Department of Children and Families (department) made reasonable efforts to reunify her with Elijah and, second, that she was unable to benefit from those efforts.2 We agree with the respondent that the Appellate Court improperly dismissed her appeal as moot. We further conclude, however, that the evidence supports the trial court‘s determination that the respondent was unable to benefit from reunification efforts. Because our resolution of that issue constitutes an independent basis for affirming the trial court‘s judgment, we need not address the respondent‘s claim that the trial court incorrectly concluded that the department made reasonable efforts to reunify her with Elijah. We therefore vacate the judgment of the Appellate Court and remand the case to that court with direction to affirm the trial court‘s judgment.3
The opinion of the Appellate Court sets forth the following relevant facts and procedural history. “The [trial] court granted the petitioner, the Commissioner of Children and Families, an ex parte order of temporary custody of Elijah shortly after he was born.4 The petitioner filed a neglect petition on February 21, 2014, on the basis of the doctrine of predictive neglect as a result of the respondent‘s diminished cognitive abilities.5 The order granting temporary custody of Elijah was sustained four days later.
“The court, Dyer, J., held a neglect trial on September 15, 2014. On October 2, 2014, the court adjudicated Elijah as neglected and ordered his care, custody, and guardianship [be] committed to the petitioner. Additionally, the court ordered the department (1) to contact [the Department of Mental Health and Addiction Services (DMHAS) and the Department of Developmental Services (DDS)] to inquire about additional services for the respondent, (2) to ascertain from those agencies whether a group home existed where the respondent could potentially be reunified with Elijah and receive various forms of instruction, (3) to request the behavioral health center that was providing the respondent with psychotropic medications to conduct a medication management review, and (4) to file a written report with the court addressing various issues.
“On November 4, 2014, the petitioner filed a motion for review of the permanency plan seeking to terminate the parental rights of the respondent. Judge Dyer held a trial on January 22, 2015, and, six days later, the court issued its memorandum of decision. After considering the evidence presented, the court concluded that it was in the best interest of Elijah . . . ‘[to afford the respondent] . . . a limited period of additional time to pursue reunification efforts,’ namely, to continue with the services provided by the department. . . . The time period, the court believed, ‘should not exceed six or seven months.’ [Accordingly], the court rejected the department‘s permanency plan of termination of parental rights.
“On February 24, 2015, the petitioner filed a petition pursuant to
“The court‘s memorandum of decision from the termination hearing sets forth the following facts . . . . Shortly after Elijah was born, the hospital personnel were concerned because the respondent ‘appeared to have cognitive limitations and serious mental health problems (schizophrenia) and . . . was reported to have poor judgment and no insight into parenting.’ Thus, the hospital contacted the department, [which] sent a social worker to observe the respondent and Elijah. The social worker concluded that the respondent could not care for Elijah because of the severity of her limitations.
“The respondent‘s lengthy and exceptionally sad involvement in the child welfare system provides . . . context to the present appeal. The respondent was born prematurely, addicted to cocaine and alcohol, and suffered serious medical conditions. In April, 1989, the respondent was placed in foster care with Gwendolyn C. and [Gwendolyn‘s] . . . husband. In 1993, Gwendolyn and her . . . husband adopted the respondent and another girl unrelated to the respondent. In 1994, the respondent‘s adoptive parents divorced. Between 1997 and 1999, Gwendolyn adopted three more children.
“The respondent‘s childhood with Gwendolyn was difficult. Under her care, the respondent and the other children were ‘cruel[ly] discipline[d] . . . [by her] making them run up and down stairs, standing them
“After being abandoned by Gwendolyn, the respondent remained in the custody of the petitioner as a committed child for approximately six years. The respondent qualified for postmajority services through [DDS] and [DMHAS]. The department developed a postmajority plan in which both agencies were to provide the respondent with ‘life skills, vocational training, and supportive housing.’ The postmajority plan, however, never came to fruition because, prior to her nineteenth birthday, the respondent returned to Gwendolyn‘s care. The respondent resided with Gwendolyn for the next several years before cohabitating with Paul Y. After the respondent and Paul Y.‘s relationship ended, she returned to Gwendolyn‘s home. Approximately four months later, Elijah was born.
“The court‘s memorandum of decision also detailed the department‘s efforts to reunite Elijah with the respondent. It noted that the department offered the respondent case management services, three in-home visits per week with a parenting skills component, the opportunity to attend Elijah‘s medical visits by providing transportation, and services from two agencies [namely, Nurturing Seeds and Family Network] to provide supervised visitation and training in basic childcare skills. Concerned that the respondent was ‘being overwhelmed with too many services,’ the department sought and was granted permission for the respondent to undergo psychological evaluations.
“The respondent underwent two psychological evaluations that informed the court‘s decision. The first evaluation, conducted by Madeleine Leveille, a licensed psychologist, was completed in August, 2014, prior to the neglect trial. In addition to providing the court with the respondent‘s background, Leveille‘s evaluation [contained] key observations and opinions. For example, when discussing her mental illness, the respondent told Leveille that she regularly saw a ‘shadow,’ which Leveille characterized as a visual hallucination. Leveille concluded that the respondent had a ‘limited conceptual understanding, [was] highly dependent socially on others, and [had] odd and occasionally paranoid and cynical thought processes.’ Moreover, the respondent‘s ‘thinking processes show[ed] clear evidence of her [i]ntellectual [d]isability, [s]chizophrenia and a mood disorder.’ Leveille was unequivocal that ‘[h]aving an [i]ntellectual [d]isability does not mean that one cannot
“Approximately two months before the termination trial, in July, 2015, the respondent underwent a second evaluation. This evaluation was funded by the department in an effort to assess the respondent on an ‘individualized basis.’ The ‘Cognitive/Adaptive Functioning Evaluation’ was conducted by Stephanie Stein Leite, a licensed psychologist. Leite concluded that the respondent had an [intelligence] quotient that placed her in the ‘[e]xtremely [l]ow range,’ i.e., at the ‘bottom [one] percentile of the [population] . . . .’ Leite‘s evaluation also concluded that the respondent‘s personal and social skills, adaptive behavior, [and] ability to perform daily living skills . . . were in the [1] percent range, i.e., ‘[99 percent] of the population [have] better adaptive functioning skills than . . . [the respondent].’ Leite‘s assessment indicated that the respondent‘s ‘eating, dressing, and hygiene skills [were] commensurate with [those of] a six year old . . . [that] [s]he complete[d] household chores at the level of an eleven year old, and use[d] time, money, and communication tools at the level of a [thirteen] year old.’ In short, Leite‘s evaluation demonstrated that the respondent, pursuant to
Although well aware of the respondent‘s love for Elijah and the fact that her parenting deficiencies are due to extremely unfortunate circumstances not of her own making, the trial court concluded in relevant part that, “[r]egrettably, [the respondent‘s] condition is such” that “[s]he is not able to care for a child by herself and would require twenty-four hour assistance by a surrogate parent or a group home with the capacity to monitor [her] day and night” for her “to achieve any form of reunification. There are no known, available support programs that offer that level of care.” And “[t]here is no doubt that [the respondent] and even [Gwendolyn] love Elijah. ‘The sad fact is there is a difference between parental love and parental competence.’ In re Christina M., 90 Conn. App. 565, 575 [877 A.2d 941] (2005) [aff‘d, 280 Conn. 474, 908 A.2d 1073 (2006)]. There is abundant evidence that [the respondent] is only marginally able to care for herself.”
On appeal to the Appellate Court, the respondent claimed that the trial court incorrectly determined that the department had made reasonable efforts to reunite her with Elijah when, within two weeks of the trial court‘s January 28, 2015 order directing the department to continue the services it was then providing to the respondent, the department “removed one of the services that was most crucial to her progress . . . .” In re Elijah C., Conn. Appellate Court Briefs & Appendices, February Term, 2016, Respondent‘s Brief p. 8. More specifically, the respondent argued that the department had reduced the number of weekly supervised visits from three to two and had changed the agency responsible for supervising one of the visits from Nurturing Seeds, whose employees were trained to work with people with cognitive disabilities, to Family Network, whose employees were not.9 See id., pp. 7–8. In the respondent‘s view, those actions by the department deprived the trial court of the information necessary to determine whether she, in fact, was unable to benefit from reunification services. Thus, the respondent claimed that, “[b]ecause [Judge Dyer], on January 28, 2015, defined reasonable efforts [to reunite the respondent and Elijah] for the petitioner, and because the department acted in opposition to that order, [Judge Foley‘s] subsequent holding that . . . clear and convincing evidence showed that the petitioner made reasonable efforts and that the respondent was unable to benefit from [them] is clearly erroneous.” Id., p. 11.
The petitioner maintained, inter alia, that the respondent‘s appeal must be dismissed as moot because, as we explained in In re Jorden R., 293 Conn. 539, 552–53, 979 A.2d 469 (2009), either one of the trial court‘s findings—that the department made reasonable reunification efforts or that the respondent was unable to benefit from them—was sufficient to sustain the trial court‘s judgment, but, in her brief to the Appellate Court, the respondent had challenged only one of those findings. See In re Elijah C., supra, 164 Conn. App. 525. Consequently, the petitioner argued, the respondent could not obtain any practical relief on appeal because the Appellate Court was bound to affirm the trial court‘s judgment on the basis of that court‘s unchallenged finding that the respondent was unable to benefit from reasonable reunification efforts. See id.; see also In re Jorden R., supra, 555–57. The Appellate Court agreed with the petitioner, concluding that the respondent had inadequately briefed her claim challenging the trial court‘s finding that the respondent was unable to benefit from reunification efforts. In re Elijah C., supra, 526. The Appellate Court stated that, “[a]lthough the respondent‘s main brief does use language suggesting a challenge to the court‘s second finding, the argument was far from complete, lacking legal authority and analysis. As a result, the respondent ha[d] failed to adequately brief any challenge [to] the court‘s second
On appeal, the respondent claims that the Appellate Court incorrectly determined that her appeal was moot. She further claims that the department‘s reunification efforts failed to comport with the Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat. 327, codified as amended at
I
We first address the respondent‘s claim that the Appellate Court incorrectly determined that her appeal was moot. “Mootness raises the issue of a court‘s subject matter jurisdiction and is therefore appropriately considered even when not raised by one of the parties. . . . Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court‘s subject matter jurisdiction . . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. . . . [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . In determining mootness, the dispositive question
In concluding that the appeal was moot, the Appellate Court relied on In re Jorden R.; see In re Elijah C., supra, 164 Conn. App. 526–28; in which this court determined that, “[a]s part of a termination of parental rights proceeding,
“Because the two clauses are separated by the word unless, [
Accordingly, we concluded in In re Jorden R. that when, as in the present case, the trial court finds that the department has proven both statutory elements—the department made reasonable reunification efforts and the respondent was unable to benefit from them—the respondent‘s failure to challenge both findings on appeal renders the appeal moot because either one constitutes an independent, alternative basis for affirming the trial court‘s judgment. Id., 557 (no practical relief can be afforded to parent who fails to challenge both findings because “trial court‘s ultimate determination that the requirements of
The Appellate Court relied on these principles in concluding that the respondent‘s appeal was moot because she had failed to adequately brief her claim that the trial court‘s second finding was clearly erroneous. See In re Elijah C., supra, 164 Conn. App. 526–29; see also Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (appellate courts “are not required to review issues that have been improperly presented . . . through an inadequate brief” [internal quotation marks omitted]). We review the Appellate Court‘s determination that a claim was inadequately briefed for an abuse of discretion. E.g., State v. Buhl, 321 Conn. 688, 724–25, 138 A.3d 868 (2016).
Notwithstanding this deferential standard of review, we are unable to conclude that the respondent‘s claim
The respondent‘s claims in the Appellate Court, which she viewed as inextricably linked, were straightforward. The respondent argued, first, that the trial court‘s finding that the department made reasonable efforts to reunite her with Elijah was clearly erroneous because, inter alia, shortly after the trial court issued its January 28, 2015 order directing the department to continue the services it was then providing to the respondent, the department eliminated one of the services that the respondent considered most crucial to the success of her reunification efforts. See In re Elijah C., Conn. Appellate Court Briefs & Appendices, supra, Respondent‘s Brief p. 8. In a closely related vein, the respondent further argued that the trial court‘s finding that she could not benefit from reunification efforts was clearly erroneous in light of the department‘s failure to provide the reunification services that the trial court previously had determined were reasonable and appropriate in light of the respondent‘s cognitive deficits, and that the court had ordered be continued for a period not to exceed six or seven months so that it could better determine whether the respondent was able to benefit from them.12 See id, pp. 9–10. Considering the relative
We disagree with the petitioner that the respondent‘s second claim was inadequately briefed because the respondent‘s argument failed to take into account the evidence that supported the trial court‘s finding that she was unable to benefit from reunification services. As we explain more fully hereinafter, the petitioner is correct that the respondent, in addressing her second claim, failed to address certain evidence that strongly supported the trial court‘s second finding. We have never held, however, that an appellant‘s failure to consider every countervailing argument renders a claim inadequately briefed. Of course, in the interests of effective advocacy, an appellant should address both the strengths and weaknesses of her case, but we cannot say that the failure to do so necessarily renders the claim inadequately briefed.
Nor are we persuaded by the petitioner‘s contention that the respondent‘s claim was inadequately briefed because she failed to address the holding of In re Jorden R., which the petitioner maintains “rejected” the logic underlying the respondent‘s second claim, namely, “that, without the department first providing reasonable [services], a trial court‘s finding that [the respondent] was unable to benefit from [such services] must necessarily fail.” We disagree with the petitioner‘s characterization of the respondent‘s claim in the Appellate Court. The respondent did not claim in that court that the department‘s failure to provide reunification services necessarily precludes a finding by the trial court that a parent is unable to benefit from such services. To the contrary, the respondent acknowledges that, in some cases, the department may be under no obligation to pursue a permanency plan of reunification. The respondent argued, rather, that, in light of the department‘s failure to provide the services that the trial court previously had determined were reasonable in light of the respondent‘s disabilities and necessary for a determination of whether reunification was feasible, that court‘s finding that she was unable to benefit from such services was not supported by the evidence.
Accordingly, although it is true that a finding that the department made reasonable reunification efforts is not a necessary predicate to a finding that a parent is unable to benefit from such efforts, this does not mean that a trial court could never view those two issues as interrelated. Cf. In re Gabriella A., 319 Conn. 775, 814, 127 A.3d 948 (2015) (Robinson, J., dissenting) (“[T]he question of whether the petitioner made reasonable efforts to reunify the respondent with her child is inextricably linked to the question of whether the respondent can
II
We turn, therefore, to the respondent‘s claim that the trial court incorrectly determined that she was unable to benefit from reunification efforts. As we have explained, the respondent views the success of this claim as dependent on the success of her claim that the trial court incorrectly determined that the department made reasonable efforts to reunite her with Elijah. Specifically, the respondent argues that the trial court incorrectly determined that she was unable to benefit from reunification services because, seven months before the termination hearing, the department reduced the number of the respondent‘s weekly visits with Elijah from three to two and replaced the agency tasked with supervising one of the visits, Nurturing Seeds, with Family Network, whose employees, in contrast to the employees of Nurturing Seeds, were not trained to work with clients with cognitive disabilities. The respondent maintains that, because the evidence indicates that her parenting skills were improving under Nurturing Seeds, the only reasonable conclusion to be drawn is that her skills would have continued to improve but for the department‘s substitution of agencies. The respondent also faults the department for failing to do more to identify services that might have assisted her in her reunification efforts.
The petitioner counters that there is no evidence that the change from Nurturing Seeds to Family Network had any adverse effect on the respondent‘s reunification efforts. To the contrary, the petitioner maintains that the only evidence related to this issue indicates that the services provided by the two agencies were indistinguishable in terms of outcomes. The petitioner further argues that the respondent does not identify a single available reunification service that the department failed to offer her, and, therefore, her assertion that the department could have done more to assist her in her
The following principles guide our analysis of this claim. “Pursuant to
On appeal, we evaluate the trial court‘s subordinate factual findings for clear error. E.g., In re Gabriella A., supra, 319 Conn. 789. We review the trial court‘s ultimate determination that a parent is unable to benefit from reunification efforts, however, for evidentiary sufficiency; e.g., id., 790; “that is, we consider whether the trial court could have reasonably concluded, [on the
Although the trial court made numerous findings in deciding to terminate the respondent‘s parental rights, two in particular, either alone or in combination, support that court‘s determination that the respondent was unable to benefit from reunification services. First, as we previously discussed, the trial court credited the opinions of Leveille and Leite, the two psychologists who evaluated the respondent at different stages of the case, that the respondent‘s cognitive deficits and psychological conditions were so severe that the only way that reunification could be achieved would be if the respondent and Elijah lived in a setting in which they both received around-the-clock supervision. See, e.g., In re Shane M., 318 Conn. 569, 590, 122 A.3d 1247 (2015) (“[c]ourts are entitled to give great weight to professionals in parental termination cases” [internal quotation marks omitted]); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 667, 420 A.2d 875 (1979) (in termination proceeding, “[p]sychological testimony from professionals is rightly accorded great weight“). It was for this reason that the trial court, following the neglect hearing, ordered the department to contact DMHAS and DDS to ascertain whether there were any assisted living programs in Connecticut that provided the level of care that the respondent needed for a permanency plan of reunification to proceed. The department subsequently communicated with staff from both agencies, who informed the department that there were no such programs in the state.14
The trial court also relied on the fact that, three months before the termination hearing, the respondent was hospitalized for eight days following a period of “homicidal ideation toward her mother, mood swings, auditory hallucinations and visions of hitting others in the head with a hammer and enjoying it,” a development that the court aptly described as a “significant safety concern” for Elijah. The court further observed that the respondent‘s hospital admission form indicated that she had been “aggressive toward her three year old nephew on the day prior to [her] admission,” and that the respondent‘s adoptive mother, Gwendolyn, had testified “that [the respondent was] not allowed unsupervised contact with [any of Gwendolyn‘s] twelve grandchildren.” The court concluded that, “[a]s this ha[d] only recently occurred, it [was] unlikely that [the respondent‘s] anger toward her mother and aggression toward [her] nephew [had] been addressed in therapy.”
It bears emphasis, moreover, as it relates to the trial
Notably, the respondent does not address the trial court‘s findings regarding the events preceding her June, 2015 hospitalization, much less explain why those findings do not support that court‘s determination that she was ultimately unable to benefit from reunification services. Moreover, the respondent‘s only response to the trial court‘s finding that there were no assisted living programs in this state that offered the level of care and supervision that she and Elijah would require for reunification efforts to proceed is to argue, for the first time on appeal, that the petitioner should have looked out of state to find such a program. We agree with the petitioner that the proper place for the respondent to have raised her claim concerning an out-of-state placement was in the trial court, where the issue could have been litigated and a factual record developed as to whether reasonable reunification efforts required the department to search for an out-of-state placement. E.g., Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 142, 84 A.3d 840 (2014) (“[i]t is well settled that [o]ur case law and rules of practice generally limit [an appellate] court‘s review to issues that are distinctly raised at trial” [internal quotation marks omitted]). In the absence of such a record, we can only speculate as to whether such a program existed, what it would have cost or whether the respondent even would have agreed to participate in it.15
We note, finally, that, even if the respondent‘s claim concerning an out-of-state placement had been preserved, the respondent cites no authority for the propo
In light of our determination that the evidence supported the trial court‘s finding that the respondent was unable to benefit from reunification services, we need not address the respondent‘s claim that, by substituting agencies, the department‘s reunification efforts violated the ADA and, therefore, that the trial court incorrectly concluded that the department‘s efforts were reasonable under
As we previously noted, Title II, § 202, of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
This court previously has explained that, “subsequent
This court has nonetheless explained, consistent with the view of the vast majority of courts that have addressed the issue,16 that the ADA is not properly raised as a defense in a termination of parental rights or neglect proceeding because such an action is not a service, program, or activity of a state agency within the meaning of the ADA. See In re Joseph W., 305 Conn. 633, 650–51, 46 A.3d 59 (2012). The ADA is not properly raised as a defense in such proceedings also because, as the Michigan Court of Appeals explained in In re Terry, supra, 240 Mich. App. 14, “[t]he focus at the dispositional hearing must be on the parent‘s rights to the child and the best interests of the child . . . and the parties and the court should not allow themselves to be distracted by arguments regarding the parent‘s rights under the ADA.” Id., 26–27 n.5; see also Adoption of Gregory, 434 Mass. 117, 121, 747 N.E.2d 120 (2001) (“Although the [Massachusetts] [D]epartment [of Social Services] is a public entity and therefore subject to the ADA . . . nothing in the ADA suggests that a violation of the [ADA] would interfere with the right of the state to terminate parental rights. To allow the provisions of the ADA to constitute a defense to termination proceedings would improperly elevate the rights of the parent above those of the child.” [Citation omitted; internal quotation marks omitted.]).
This is not to say that the ADA plays no role in child welfare proceedings. To the contrary, as
Furthermore, as a practical matter, under our statutory scheme, the department‘s failure to make reasonable modifications to its services, programs or activities to accommodate a parent‘s disability would likely preclude a finding under
Our understanding of the interplay between the ADA and our child welfare statutes fully comports with the guidance recently issued by the United States Departments of Justice and Health and Human Services “to assist state and local child welfare agencies and courts to ensure that the welfare of children and families is protected in a manner that also protects the civil rights of parents . . . with disabilities.” (Footnote omitted.) United States Dept. of Health and Human Services & United States Dept. of Justice, Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act (August, 2015), available at https://www.ada.gov/doj_hhs_ta/child_welfare_ta.html (last visited August 3, 2017). That document provides in relevant part: “Individuals with disabilities must be provided opportunities to benefit from or participate in child welfare programs, services, and activities that are equal to those extended to individuals without disabilities. This principle can require the provision of aids, benefits, and services different from those provided to other parents . . . [when] necessary to ensure an equal opportunity to obtain the same result or gain the same benefit, such as family reunification.
“This does not mean lowering standards for individuals with disabilities; rather, in keeping with the requirements of individualized treatment, services must be adapted to meet the needs of a parent . . . who has a disability to provide meaningful and equal access to the benefit. In some cases, it may mean ensuring physical or programmatic accessibility or providing auxiliary aids and services to ensure adequate communication and participation, unless doing so would result in a fundamental alteration to the nature of the program or undue financial and administrative burden. For example, a child welfare agency must provide an interpreter for a father who is deaf when necessary to ensure that he can participate in all aspects of the child welfare interaction. In other instances, this may mean making reasonable modification to policies, procedures, or practices, unless doing so would result in a fundamental alteration to the nature of the program. For example, if a child welfare agency provides classes on feeding and bathing children and a mother with an intellectual disability needs a different method of instruction to learn the techniques, the agency should provide the mother with the method of teaching that she needs.” (Footnotes omitted.) Id.
We therefore continue to encourage trial courts to look to the ADA for guidance in fashioning appropriate services for parents with disabilities. Furthermore, there is nothing in the record before us to suggest that
The form of the judgment of the Appellate Court is improper, the judgment of the Appellate Court is vacated, and the case is remanded to that court with direction to affirm the judgment of the trial court.
In this opinion the other justices concurred.
* In accordance with the spirit and intent of
** The listing of justices reflects their seniority status on this court as of the date of oral argument.
*** August 9, 2017, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
Notes
* * *
“(j) The Superior Court, upon notice and hearing as provided in
“(b) As used in subsection (a) of this section, ‘significant limitation in intellectual functioning’ means an intelligence quotient more than two standard deviations below the mean as measured by tests of general intellectual functioning that are individualized, standardized and clinically and culturally appropriate to the individual; and ‘adaptive behavior’ means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected for the individual‘s age and cultural group as measured by tests that are individualized, standardized and clinically and culturally appropriate to the individual.”
As the petitioner contends, the record indicates that the respondent had a history of rejecting the department‘s advice with respect to such matters. The trial court expressly stated in its memorandum of decision that, over the department‘s strong objections, the respondent decided to reside with Gwendolyn when she reached the age of majority, and, in doing so, she had abandoned the housing, educational and vocational services that the department had arranged for her. The respondent also continued to live with Gwendolyn throughout the neglect and termination proceedings, even though the trial court, early on in the proceedings, made it abundantly clear that reunification was not possible as long as the respondent resided in Gwendolyn‘s home.
Despite the trial court‘s ruling that Gwendolyn‘s home was not a suitable placement for Elijah, and knowing that there were no state programs that provided the level of care and supervision that she and Elijah required to achieve reunification, the respondent never once requested that the department investigate an out-of-state placement. The respondent instead asked the court to reconsider its prior decision to deny Gwendolyn‘s motion to be Elijah‘s legal guardian, a request that the court flatly denied, citing, as reasons, Gwendolyn‘s “catastrophic . . . failures” as a parent, the “diabolically cruel” punishment she inflicted on her own children, and the “‘toxic and controlling‘” relationship that existed between her and the respondent at the time of the termination proceedings.
See, e.g., People ex rel. T.B., 12 P.3d 1221, 1223 (Colo. App. 2000) (“the ADA cannot be raised as a defense to a termination of parental rights proceeding“); In re Doe, 100 Haw. 335, 340, 60 P.3d 285 (2002) (“a termination proceeding is not a ‘service, program, or activity’ within the definition of the ADA, and, consequently, the ADA does not apply to such proceedings“); Adoption of Gregory, 434 Mass. 117, 121, 747 N.E.2d 120 (2001) (proceedings to terminate parental rights are not “‘services, programs, or activities‘” under ADA, and, thus, “the ADA is not a defense to such proceedings“); In re Terry, supra, 240 Mich. App. 24–25 (“[t]ermination of parental rights proceedings do not constitute ‘services, programs or activities’ [under the ADA, and, therefore] . . . a parent may not raise violations of the ADA as a defense to [such] proceedings“); In re Kayla N., 900 A.2d 1202, 1208 (R.I. 2006) (“a termination-of-parental-rights proceeding does not constitute the sort of service, program, or activity that would be governed by the dictates of the ADA“), cert. denied sub nom. Irving N. v. Rhode Island Dept. of Children, Youth, and Families, 549 U.S. 1252, 127 S. Ct. 1372, 167 L. Ed. 2d 159 (2007); In re B.S., 166 Vt. 345, 351–52, 693 A.2d 716 (1997) (“[T]he ADA does not directly apply to TPR proceedings. . . . TPR proceedings are not services, programs or activities within the meaning of [t]itle II of the ADA . . . .” [Citation omitted; internal quotation marks omitted.]); In re Torrance P., 187 Wis. 2d 10, 16, 522 N.W.2d 243 (1994) (ADA claim “is not a basis to attack [a] TPR order“).
To be sure, court proceedings may be services, programs, or activities within the meaning of the ADA in certain circumstances—for instance, insofar as they implicate the ADA‘s accessibility protections. Cases involving the ADA‘s application to such proceedings, however, invariably involve the need for reasonable accommodations, such as the removal of physical barriers to access. See, e.g., Arneson v. Arneson, 670 N.W.2d 904, 911 (S.D. 2003) (“[m]ost cases concerning the application of the ADA in court proceedings deal with reasonable courthouse accommodations“); In re K.C., 362 P.3d 1248, 1251 (Utah 2015) (distinguishing between courthouse proceedings and termination of parental rights proceedings under ADA).