As reported in the Oct. 5 Hartford Courant by Josh Kovner
Connecticut couple files federal appeal after two children are taken from them at birth A Connecticut couple whose children were taken from them at birth after the parents were deemed mentally unsound by child-protection officials have filed a federal appeal, claiming that they were denied rights under the Americans With Disabilities Act.
It has been a grueling struggle for Joseph Watley, 61, who is staying with his ailing mother in Thomaston, and Karin Hasemann, 47, who lives with her mother and father in Watertown.
They lost the boys — Joe Jr. was born in July 2005, and Danny came along in July 2006 — under the doctrine of "predictive neglect." The Department of Children and Families argued that it was more likely than not that Hasemann and Watley would neglect the children if they remained with their parents. So the state took them away.
"How do you defend against that?" said Watley. He's worked a number of factory and machine-shop jobs and now receives disability payments for a back injury suffered in a car accident.
When Hasemann was 16, she had a benign brain tumor surgically removed. Since then, she has been diagnosed with narcolepsy. The couple fought against the removal of their children at three trials in state Superior Court in Middletown. They lost all three, although they won state appeals and had the case sent back for further hearings. They ultimately lost every trial. A lawsuit against DCF was dismissed in federal court.
In the couple's federal appeal, lawyer Andrew O'Toole of Hartford asserts Hasemann has received a series of "inconsistent and conflicting" psychological evaluations that were ordered by DCF. Her diagnoses include attention deficit and hyperactivity disorder; personality disorder – major depression; chronic functional impairments; cognitive defects; and other "unspecified" psychological difficulties," O'Toole stated in the appeal brief. For his part, Watley was diagnosed with "personality disorder – unspecified."
"That's the 'common cold' of mental health," said Watley. "We were branded with negative, stigmatizing labels that we will never be able to shake. What DCF is saying is, 'You're inferior because of your disability, or what they perceive as our disabilities, so you don't have the right to get your kids."
The boys live with foster parents in Watertown. Watley and Hasemann have not seen them since 2008. They lost parental rights in state court and have no visitation rights.
Even if the appeal is successful and they were to prevail at a new trial in federal court, the couple wouldn't get the boys back. A win would mean money damages, and possibly a ruling that says that even parents who've been deemed unfit by DCF deserve access to services and support under the ADA before a child is removed.
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. Watley says that in 2005 and 2006, when the boys were born, "family members from both sides were ready and willing to help us raise the children — we never got the chance."
In the Massachusetts case, the justice department and the U.S. Department of Health and Human Services said the ADA applies to all services and activities performed by a state child-protection agency — even during the process to terminate parental rights.
The Connecticut DCF argues in its court papers that the accommodations and access to services required by the ADA don't apply to termination proceedings.
"Any parents who find themselves in our situation should immediately file a disability-rights complaint with the Justice Department and HHS — that's my advice," said Watley.
O'Toole's brief is technical, asserting that the federal trial judge made procedural errors when he dismissed the case without ever hearing from the couple. The couple "have never fully and fairly litigated their [ADA claims] alleging intentional discrimination based on their disability, perceived disability, or and/or with an individual with a disability," O'Toole wrote. "Accordingly, the district court erred in finding that their ADA and Rehabilitation Act claims" had been properly barred from the state court proceedings.
Watley and Hasemann's principle argument hasn't changed in a decade — that the state stole their children. "Like a thief in the night," said Watley, "but with this thief, you know damn well who did it, but you still can't get your children back. "I've experienced death in my life," Watley went on. "I lost my father. I lost my brother. My mother is sick now — but you know you will lose family members. What happened to us — that is unnatural. It is the worst possible experience a father and mother could have. Your children are alive, you know where they are, but you can't see them."