On Tuesday, September 10, 2013, I went to the courthouse at 75 Elm Street to hear the Appellate Court argument in Joe Watley and Karin Hasemann's custody case against DCF.
As you may know, Joe and Karin lost custody of their children in 2008 based upon the doctrine of "predictive neglect" meaning that while they had not actually neglected their children there was a possibility that they might neglect them.
When I arrived, the proceedings had not yet begun. However, Mr. Watley was speaking to Attorney Thomas Smith, the ADA Contact person for the Appellate Court. Mr. Watley had requested that the Designated Responsible Employee responsible for ensuring compliance with Title II of the ADA in the Judicial Branch be present in order to insure that the Appellate Court was compliant with the ADA. In response to that request, the Appellate Court wrongly sent Attorney Thomas Smith who is only an ADA Contact person.
The person who has final authority and the one who should have been present that day according to the ADA is the Designated Responsible Employee and that person, to my knowledge, is ordinarily Ms. Sandra Lugo-Gines. However, the Court, instead of sending Sandra, sent Attorney Smith instead, which created considerable confusion as Joe and his supporters attempted to decipher what was going on.
I would consider it typical that after Joe specifically requested the Designated Responsible Employee to be present, instead of complying with the request, the Court sent Attorney Smith who is totally the wrong person.
After that, another advocate stepped forward and requested that Attorney Smith provide to Joe a written notice of procedural safeguards. Apparently, any state agency that receives federal funding, which our Judicial Branch does, must comply with Section 504 requirements which includes that people receiving services under the ADA should be provided with such a notice. Attorney Smith had no such notice.
So Attorney Smith was clearly ill prepared--he had no idea why he was there and he didn't have the notifications he is required to have available once he arrived. Attorney Smith did have in his hands a brochure prepared by the branch entitled "A Guide to Understanding the Americans With Disabilities Act" which is a new information sheet about the ADA. See the following link:
However, I didn't see him actually give it to Joe. That is unfortunate because the brochure is a new document that the Branch produced recently and it is very helpful in providing an overview of the ADA as it is implemented in the CT Judicial Branch.
To be fair, I think that the Connecticut Judicial Branch continues to make baby steps in the right direction towards implementing the ADA. It has done a lot in terms of upgrading the ADA webpage on the Connecticut Judicial Website and should get credit for that. As I said, we still have a long way to go but these are some good first steps, just not in time to meet Joe's needs.
Not long after that, the court was brought into session. There were three judges considering the case--Judge Alvord, Judge Lavine, and Judge Peters.
As you know, in the Supreme Court hearing in this matter last year, the Court determined that the wrong standard had been used for the purpose of establishing "predictive neglect". Instead of using the standard of "fair preponderance of the evidence", the Supreme Court said the Superior Court should have used the standard of "more likely than not." Only you hairsplitters know the difference between those standards.
Be that as it may, as I predicted, all that happened as a result of this Supreme Court decision was that the case was returned to Superior Court where Judge Keller wrote a 180 page decision, an extraordinarily number of pages for a document of this kind, stating that the old facts of the case also met the newly instituted standard of review for predictive neglect. Thus, our presence that day in Appellate Court.
Nonsensically, this case has been bouncing from Superior Court to Appellate Court to Supreme Court and back down again for years.
Each party in the case was considered separately. To start with Joe's attorney stood up and presented his case. He stated that it was wrong that Joe was never given the opportunity to be considered as a parent separately, particularly since there was no evidence that he himself had ever neglected the children.
While there was a finding that Joe and Karin were together and were unlikely to separate, Joe's Attorney stated that there was insufficient evidence to support that conclusion. At that point, one Judge asked whether it was Joe's responsibility to present that argument. The attorney responded that the burden is on the department to make a proper inquiry. And he did point out that in June 2006, Joe had spoken to Miss Skinner of DCF and expressed a willingness to parent alone.
Judge Alvort repeatedly kept asking whether all defective terminations should be undone based on Joe's case. The attorney responded quite rightly that he was only there to discuss Joe's case at the moment, but this response did not satisfy the Judge and she kept on repeating the question. That Judge came across a lot like that of a kindergarten teacher asking a child, "what if everyone in the class did that naughty thing you just did?" and I found it somewhat offensive. This is not kindergarten. This is about the fundamental right of a father to be a parent.
In addition, it seems to me that if the government made a mistake it should be more concerned with correcting that mistake rather than thinking about how to avoid the consequences of having made one. The judge's question, therefore, came across as begrudging and insensitive.
Finally, Joe's Attorney mentioned that a 2006 evaluation written by Dr. Humphrey indicated that the father had a bond with his children, sufficient parenting skills, and also a willingness to parent.
Seriously, what more could DCF want!
The Assistant Attorney General, Mr. Vitelli then spoke up. He faulted Joe Watley for being on disability due to a back injury, and also suggested the back injury was fake. I found that pretty offensive second guessing a medical doctor's determination without any credible evidence. But isn't that what it is all about in Court, smearing a person's reputation without a single shred of evidence.
Mr. Vitelli then spoke in gloomy tones about "the knife incident" where, as I later learned, Joe Watley had taken a knife away from his nephew who was waving it around inappropriately. Then he returned it to the rack.
The attorney also cited Mr. Watley for leaving the state with Karin when the couple were going to have a second child. I am not sure what Joe was supposed to do when his partner was just about to give birth and insisting on leaving the state. He did what he thought would protect her as well as the child. We can all criticize in hindsight. Plus, as far as I know, there is no law against travelling!
Primarily, the big problem seemed to be that Joe did not do what DCF wanted him to do. He didn't knuckle under. He didn't behave in a way that was compliant.
I'd pretty much say that all of these issues came across as quite petty. There was nothing in this recital of wrongs that came across as endangering anyone. No crimes, no substance abuse, no driving accidents, no abused pets--nothing.
Next, Karin's attorney stood up to make his case. His point was that Karin had been discriminated against based upon Title II of the ADA. He asked why no one made a request for an ADA Coordinator to assist Karin at DCF. He also cited that fact that an ADA Coordinator was not used during the termination proceedings with DCF.
When the judge asked why Karin didn't get one for herself, the attorney responded quite rightly that it is up to the Court to offer services on its own initiative.
Again, as with Joe Watley, the attorney emphasized Karin's good character. The condition she has was the result of a benign brain tumor that was removed. As he put it, "Her situation wasn't of her own making."
Karin's attorney also stated that Karin had a condition which is a highly specialized area of medicine which required a more sophisticated response than DCF was able or informed enough to provide. He indicated that DCF did not provide any meaningful treatment for Karin and did not provide treatment that addressed her cognitive issues. He said this was not fair to Karin.
In essence, Karin's attorney stated, "Had there been an ADA Coordinator in place, this mistake would have been prevented. The Coordinator could have assisted in finding the right services. If this had been done, she might have been stabilized." Of course, this is all based upon DCF paid professionals who were paid to find a need for stabilization. It would have been interesting to find a professional independent of DCF.
Unfortunately, when the judge asked if ADA Coordinators are doing this in any other state, the attorney responded with some vague comment about Hawaii. Of course, just because no state is implementing the ADA properly, this does not excuse them! Of course, I don't think it is so much about what an ADA Coordinator could have done, so much as it is about finding the kind of treatment which is specifically addressed to the medical condition that the client has. That was not done. It appeared that DCF wanted Karin to agree to talk therapy that is more appropriate for those with substance abuse problems which Karin does not have.
The Assistant Attorney General (AAG) then spoke and said that Karin was unwilling and unable to engage in DCF reunification despite the fact that a myriad of services were provided. From the beginning to the end, the AAG stated, Karin refused to acknowledge that she had a deficiency.
In regard to an ADA coordinator, the AAG asked, "What would that ADA coordinator do?" as if it was one great big puzzle. From what I gather, an ADA Coordinator would insure compliance with the ADA, but don't ask me--I'm not in charge.
Apparently, Karin and Joe submitted complaints stating that DCF and the CHRO had discriminated against them, but these agencies were cleared. Of course, they always are, no matter how discriminatory and noncompliant they are!
Joe and Karin were also faulted for not stating what their disability was. But as far as I know, they are not required to, certainly not in open court. All they should have to do is request a modification and that modification should be provided.
Once outside the courtroom, we had an interesting conversation. Joe Watley said to me, what is this stuff about we have to receive treatment for our disability and recover from it in order to get permission to be a parent. When you have a blind person, you don't say you can't be a parent until you stop being blind.
You don't say to someone in a wheelchair, you can be a parent once you are able to get around without a wheelchair, you don't tell someone who is deaf that once you regain your hearing you can be a parent.
Why is there this emphasis in mental illness that you must remove the condition rather than accommodate it or simply provide the supports that are required in order to function? I must say, I totally agree with that perspective.
What will be the outcome to this Appellate argument? I can't say. If it passes, then I'd guess the case will go back to Superior Court. If it does not pass, then it will go up to the Supreme Court in the ongoing game of judicial musical chairs we have seen take place in this case before.
Game. That's the right term.
This is group of people who have been trained in caring for children--DCF--and another group trained to mete out justice--judges, attorneys--and yet all they are really doing is playing childish games with this family, with Joe, with Karin, and with their children who have a natural, fundamental human right to live with the parents they are biologically and emotionally linked to, and always will be no matter what the barriers--I mean, just look at the lengths adoptive children go to in order to find their birth parents--yet they are being denied that right.
One day the Watley children are going to grow up, they are going to discover the truth, and like that famous victim of the Salem Witch trials, Sarah Good, turn to these judges and say, "God will give you blood to drink!" And I am sure one day He will.
RELATED ARTICLES:
http://divorceinconnecticut.blogspot.com/2012/11/open-letter-regarding-watley-case-from.html
http://divorceinconnecticut.blogspot.com/2012/08/the-watley-decision-sc-1895118952.html
http://divorceinconnecticut.blogspot.com/2012/07/joe-watley-on-dangers-of-therapeutic.html
RELATED ARTICLES:
http://divorceinconnecticut.blogspot.com/2012/11/open-letter-regarding-watley-case-from.html
http://divorceinconnecticut.blogspot.com/2012/08/the-watley-decision-sc-1895118952.html
http://divorceinconnecticut.blogspot.com/2012/07/joe-watley-on-dangers-of-therapeutic.html