Connecticut Couple Wages Legal Fight After DCF Takes Children At Birth – Hartford Courant

NEW YORK — The state child protection agency trampled on the rights of a Connecticut couple by removing two children at birth based on “perceptions and stereotypes” of the parents’ mental health, a lawyer told a federal appeals court Thursday.

Lawyer Andrew O’Toole of Hartford was arguing on behalf of Joseph Watley, 61, and Karin Hasemann, 47, who claim that their rights under the Americans with Disabilities Act were violated when the state Department of Children and Families terminated their parental rights.

O’Toole and the couple, along with several supporters, were at the U.S. 2nd Circut Court of Appeals to challenge a dismissal of the couple’s case by U.S. District Judge Robert N. Chatigny.

DCF removed the couple’s two children at birth — Joe Jr. in 2005 and Danny in 2006 — under a controversial doctrine known as “predictive neglect.”

Watley had been diagnosed by DCF psychologists and psychiatrists with “personality disorder — unspecified.” When Hasemann was 16, she had a benign brain tumor surgically removed. Since then, she has been diagnosed with narcolepsy. Her previous diagnoses include attention deficit and hyperactivity disorder; major depression; chronic functional impairments; cognitive defects; and other “unspecified” psychological difficulties,” O’Toole stated in the appeal brief.

In the couple’s appeal, O’Toole asserts that Hasemann has received a series of “inconsistent and conflicting” psychological evaluations that were ordered by DCF. Watley has characterized his diagnosis as the “common cold” of mental health.

Thursday’s hearing did not shed light on how DCF became involved with the couple. Hasemann had a daughter previously removed by the state.

O’Toole argued before a three-judge appeals panel Thursday that DCF failed to consider the extended families of both parents and other supports that the couple could have relied on to help them raise their children.

The judges questioned O’Toole and DCF’s lawyer, Assistant Attorney General Jane Rosenberg, during the lawyers’ presentations. Judge Amalya L. Kearse implied that Watley’s diagnosis was vague. When O’Toole told her what it was, she said “that doesn’t do anything for me. Is that a clinical diagnosis?”

O’Toole said it was.

Rosenberg argued the mental health conditions of the parents were of enough concern to remove the children. She said DCF took every reasonable, even extraordinary, measure to help the parents, providing them with mental health evaluations, counseling, therapy and parent education. But she said in the end the parents failed to convince DCF that they could be adequate parents.

In a key exchange, Rosenberg said that she believed that the experts DCF put forth under its state mandates to provide services to parents also satisfied any claim the couple might have under the ADA.

But the judges did not seem to agree that services provided under state law would automatically satisfy the ADA.

Judge Robert A. Katzman said that “in theory, the plaintiffs could prevail on an ADA claim without disturbing the state court ruling [terminating their rights].”

The couple do not expect to get back their children, who are living with a foster family. They are seeking a new trial to argue their claims under the disabilities act and to seek monetary damages.

O’Toole picked up on Katzman’s point, arguing that the ADA “would give rise to an independent claim” on federal rights issues apart from the state’s removal of the children.

Watley lives with his ailing mother in Thomaston, and Hasemann lives with her mother and father in Watertown.

Watley and Hasemann have not seen the children since 2008. They have no visitation rights.

The final appeal papers were filed Sept. 24 and contain references to a federal enforcement action in Massachusetts that has emboldened Watley. The Department of Justice in January ordered the Massachusetts DCF to return to 21-year-old Sara Gordon the now almost 3-year-old child the state had removed on the basis of Gordon’s developmental disability.

The Massachusetts DCF “acted … based on … discriminatory assumptions and stereotypes about her disability, without [considering] family-based support services” routinely available to other parents who risk losing a child, the U.S. Department of Justice and the Department of Health and Human Services Office for Civil Rights wrote in the order to the Massachusetts DCF.

The department also “failed to … modify its practices … to accommodate Ms. Gordon’s disability,” and “denied her the opportunity to receive meaningful assistance from her mother and other service providers,” they wrote.

Before the hearing, Watley told the The Courant, “I can feel my body tensing up. But this is the day I’ve been waiting for.”

The three-judge panel will rule at a later date.