LEGAL OBSCURITIES AND LOOPHOLES USED TO OBSTRUCT A COUPLE'S FIGHT FOR JUSTICE IN "PREDICTIVE NEGLECT" CASE!

Their story is familiar now.  In 2007, Joey Watley and Karin Hasemann's two  children were taken away from them by DCF at birth. The grounds for this?  A controversial doctrine known as "Predictive Neglect". In other words,the concept that parents might neglect their children in the future even if they have not in the past.  CT DCF "experts" labeled the parents as mentally ill--Joey Watley received the diagnosis of Personality Disorder Unspecified, while Karin Hasemann was diagnosed with a broad range of conflicting diagnoses.  Since that time, both parents have taken care of other young children without incident.  

For a decade, Mr. Watley and Ms. Hasemann fought the removal of their children, ultimately losing three trials in State Superior Court in Middletown.  However, they did win appeals of those decisions due to legal error and malfeasance on the part of the trial court. Eventually, however, Connecticut State Court terminated their parental rights permanently. Consequently, in 2015 they took their case to Federal District Court. Initially, that Court denied their  complaint in response to a motion to dismiss filed by the CT Attorney General's office. However, the couple then appealed that decision to a higher Court--the Second Circuit Court in New York--which sustained their right to pursue their case.  Since then they have returned to the lower Connecticut Federal District Court.  


DCF Tries to Slip Through a Legal Loophole by Wrongly Defining Reasonable Efforts As Identical to Reasonable Modifications Under Title II of Federal ADA Law

On February 28, 2017 before the District Court Judge Robert N. Chatigny, Attorney Andrew O'Toole, the attorney for  both Watley and Hasemann, presented their defense to another motion to dismiss. Already, the case is mired in verbal hairsplitting and legal obscuritanism intended to deny these parents their civil rights.  For instance, in their complaint Joey Watley and Karin Hasemann are claiming that during the time when CT DCF was involved in their case, it failed to provide them with the reasonable modifications and protections against discrimination to which they are entitled under the Americans With Disabilities Act. In response, Assistant Attorney General Janet Rosenberg, on behalf of the CT DCF, quibbled that DCF made all "reasonable efforts" to reunify the parents with their children and that those efforts should be considered the same thing as reasonable modifications under the ADA.  

Luckily, the Second Circuit Court judges have already expressed their discomfort with that argument on very specific grounds, i.e. reasonable efforts as CT DCF defines them and reasonable modifications under the ADA could not be more disparate.  

In other words, CT DCF "reasonable efforts" have to do with services offered or provided; the "reasonable modifications" mandated by the ADA have to do with providing access to those services.  Logically speaking, if you do not provide access to services, then you might as well have not provided them at all.  This is the kind of common sense reality that the CT DCF wishes to evade in their attempt to wiggle out of taking responsibility for their wrongdoing.

Physical Barriers to Access vs. Attitudinal Barriers to Access

Further, there can be barriers to access where the solution is purely a matter of putting in a ramp, providing a hearing aid, or a magnifying glass.  But what can be done when the CT DCF has to overcome its own attitudinal barriers to working with clients who have disabilities? These negative attitudes, as we have seen, can also throw up major obstacles to access.  

Recently, my assistant questioned Attorney Martin Libbin, legal counsel for the CT Judicial Branch, regarding what kinds of procedures are in place to overcome attitudinal barriers so ADA clients can access the CT Judicial Branch.  He failed to answer the question. I would suspect if they have no procedures in the CT Judicial Branch, they are also unlikely to have such procedures at the CT DCF since the CT Judicial Branch sets the standard.  This is an area of debate in regard to this case which I believe Mr. Watley and Ms. Hasemann would win hands down.  The CT DCF has claimed and continues to claim that they are not required to obey Federal ADA law, and clearly they made no effort to obey it in the Watley/Hasemann case.

Little Known, and Possibly Unconstitutional, Rooker-Feldman Doctrine Often Used to Throw Out Civil Rights Cases

The next legal issue which will make or break this case has to do with a little known, counter-intuitive, and possibly unconstitutional legal technicality known as the Rooker-Feldman doctrine. Second Circuit Court Judge Robert A. Katzman was referring to this legal technicality when Josh Kovner of "The Hartford Courant" quoted him as saying "in theory, the plaintiffs could prevail on an ADA claim without disturbing the state court ruling [terminating their rights]."  

Why does does this matter, you ask?  It matters because, essentially Federal Court cannot be used as a court of appeal for State Court judgments, regardless of whether you have a legitimate ADA claim or not. This doctrine, known as Rooker-Feldman, is intended to prohibit those cases from coming to federal court which are "brought by state-court losers complaining of injuries caused by state-court judgments...and inviting district court review and rejection of those judgments." Exxon Mobil Corp v. Saudi Basic Industries Corp., 544 U.S. 280 (2005).  It is because of this decision affirming Rooker-Feldman Doctrine that civil rights cases have been thrown out by the thousands in the last decade, and state courts have become increasingly arrogant and unaccountable to citizens.

In their complaint, the Plaintiffs specifically stated that they were not asking for the state judgment to be overturned. Nonetheless, the Attorney General, on behalf of DCF, argued that inevitably the state judgments would be overturned if the plaintiffs win their case in Federal Court.

Of course, it is my view that the plaintiffs in this case should win this legal argument simply based on Judge Katzman's earlier statement that a decision in their case would not inevitably overturn the state court judgment.  But, I suppose, going by his opinion would be much too easy. 

Exceptions to the Rooker-Feldman Doctrine Which Could Overcome the State of Connecticut's Motion to Dismiss

There are a number of  exceptions to the Rooker-Feldman doctrine.  One exception that Attorney Andrew O'Toole (attorney for the plaintiffs) has argued is  that if the petitioner was afforded no reasonable opportunity to raise his or her constitutional claims on the State Court level, Rooker-Feldman does not apply. During State Court proceedings, DCF stated that it was not required to obey federal ADA law and that the ADA could not be used as a defense.  Further, O'Toole pointed out that when Joey and Karin's attorneys attempted to raise the ADA in State Court during the termination proceedings, that Court refused to consider it.  The judge's decision regarding the ADA was based upon the CT Supreme Court decision in Joseph W.  which ruled that an ADA claim was a separate and distinct issue that needs to be brought up in federal court, not state court.  

As Attorney Andrew O'Toole rightly pointed out, if the State of Connecticut claims that you cannot submit your ADA complaint on the State Court level, as it did, and the Federal District Court refuses to take jurisdiction of an ADA complaint based upon the Rooker-Feldman doctrine, where are you going to take it?  Who is going to take responsibility for adjudicating the case? 

Another area of concern is that the case of Tennessee v. Lane affirmed that sovereign jurisdiction (i.e. the predominance of state court law) does not apply in regard to Federal ADA law.  Further, the strictures of the 14th amendment prohibit state law from being used to deny citizens their due process rights and the equal protection of the law. Isn't the attempt to enforce Rooker-Feldman, a doctrine that is widely regarded as not based upon the constitution but on statute, a loophole that the States are taking advantage of to toss out ADA claims such as these and reclaim sovereign jurisdiction from another angle?   

The Assistant Attorney General Janet Rosenberg also presented other fairly obscure legal arguments when arguing that Federal Court should dismiss the plaintiff's ADA case.  What is interesting about all these arguments which encompassed not only the Rooker-Feldman doctrine, but also claim preclusion, res judicata, collateral estoppel, the statute of limitations, and sovereign State immunity, is that the attorneys never got around to arguing the ADA claims themselves.  It has been two years since this case began, one which is fundamentally about the ADA, and yet ironically the ADA aspect of the case hasn't been argued thus far, and may never be.  

Instead, the focus has been on these narrow technicalities which can swing one way or another based upon such obscure grounds that they are hardly capable of analysis.  The question I have, though, is whether this kind of extended quibbling in this case was the fundamental intent of Congress and of those who crafted ADA law.  The bottom line is that ADA Federal Law itself states that the ADA should be enforced on the federal level.  

Justice Delayed is Justice Denied

Word on the street is that Judge Chatigney is going to do all he can to dismiss this case and that he is going to take particular care to make sure that the memorandum of decision he writes up is air tight and not appealable, regardless of federal ADA law. Why? Because there are so many people standing in line who have exactly similar complaints that authorities fear they would overwhelm the family court and child welfare system.

In addition, it appears that getting a decision could take as long as two years or more. Should this actually be the case, Joey Watley and Karin Hasemann will have submitted their federal complaint in 2015 and will end up receiving a ruling in the case in 2019.  That means four years to get a decision. Talking about justice delayed being justice denied! If it takes that long to get a decision, that would be unconscionable.  But what am I talking about.  The reality is that the State Court already pulled this kind of nonsense on Joey Watley and Karin Hasemann by cycling the case up and down from trial court, to appeals court, to supreme court for an entire decade, all as a means to exhaust the plaintiffs and wear out their resolve.

The Connecticut Department of Justice Fails In Its Responsibility to Enforce Federal ADA Law Under Title II

It is also important to note that this entire lawsuit is playing out within a context in which the State of Connecticut has essentially demonstrated a consistent and ongoing mockery and disrespect for the ADA.  

I am part of an extensive advocacy group that has fought for the implementation of the ADA within the CT Judicial Branch.  From my angle, and that of my advocacy group, I am concerned about how this case is another example of theatrical court proceedings regarding the ADA staged purely for show.  Meanwhile, the ultimate intention is to continue a policy of judicially nullifying federal ADA law for the vast majority of CT citizens with disabilities and rending it non enforceable.  

In order for me to take the work being done on this case seriously, I would have to see the CT Department of Justice take the time to write an Amicus Brief on behalf of the plaintiffs, which it should because it is their job to do so.  

For the last decade or more, numerous litigants with disabilities have filed complaints against the CT Judicial Branch and DCF complaining about these Agency's failure to comply with the ADA. Joey Watley and Karin Hasemann filed their complaint with the DOJ years ago. Yet the CT DOJ and the Federal DOJ have done nothing to follow through on their complaint or anyone else's complaint, for that matter, despite the fact that this is their mandate.  With that vital piece, i.e. the Amicus Brief from the DOJ, missing in the current lawsuit, how can we truly believe that the legal proceedings in State Court or in Federal Court regarding this case have any validity at all?  

They simply don't.  

What is happening here is that Federal Court, in case after case, has cancelled out the ADA through esoteric legal loopholes, outright lies and misrepresentations, in collusion with the CT DOJ's indifference and neglect of its fiduciary duties.  Either way it is a shame and disgrace that the State of Connecticut would treat its own citizens in such a shabby and abusive fashion, simply because they have a disability.  It is unclear what the future holds, but one thing I can assure you of, our advocacy for justice and fairness for Joey Watley and Karin Hasemann, for other citizens with disabilities, and those perceived as having disabilities will not end with this verdict. 

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