Great to meet with Tony Savino at NewsTalk AM 1490 Radio the voice of Fairfield & Westchester Counties. I was interviewed with Paul Anderson Winchell, Executive Director of LiftingUp Westchester about LUW's work supporting Westchester's homeless, hungry and disabled, one person at a time. Here's a link to the interviewRead More
... to get a pubic defender or 18-b lawyer appointed by the court for their case. Throughout the nation court's dockets are burgeoning with more and more people who cannot afford lawyers yet need to have legal represenation for the most important aspects of their lives.
I follow this issue and wanted to share a recent post from NCRCC - National Coalition for a Right to Civil Counsel.
DOJ: State Courts Imposing Fees and Fines Must Appoint Counsel in “Appropriate” Cases
The U.S. Department of Justice has sent a “Dear Colleague” letter to state chief justices and court administrators in order to "provide greater clarity to state and local courts regarding their legal obligations with respect to the enforcement of court fines and fees.” Among other things, the letter reminded court personnel that the Sixth Amendment guarantees counsel for any criminal proceedings resulting in imprisonment and that "Under the Fourteenth Amendment, defendants likewise may be entitled to counsel in civil contempt proceedings for failure to pay fines or fees."
If you would like to learn more here is the link for the "Dear Colleague" letter:
Tony Savino of The News Center with Tony Savino will be interviewing Paul Anderson-Winchell, Executive Director of LiftingUp Westchester and me about volunteerism, corporate giving and Peter X. Kelly, renowned Top Chef of restaurants: X20, Bully Boy, Restaurant X and others! To listen 8AM Wed. 3/23 go to AM 1490 WGCH on your radio dial or on the internet www.wgch.com
As of Jan. 19, 2016 NYS Legalizes Pregnancy Accommodations in Workplace
The Bill amends the New York State Human Rights Law’s definition of reasonable accommodation, which is currently limited in its application to individuals with disabilities, to include actions taken by an employer to permit a person with “a pregnancy-related condition” to perform the job. [Cite:] Report on Legislation by the Committee on Sex and Law, New York City Bar Association
What does this mean for pregnant workers in NY? "Conditions related to childbirth and pregnancy can result in impairment requiring accommodation. Some pregnant workers require modest adjust ments on the job for conditions related to pregnancy and childbirth in order to stay healthy and keep working. Employees may require a stool to sit on, extra restroom breaks, transfer away from hazardous duties, a temporary reprieve from heavy lifting, or a reasonable time for childbirth recovery." Cite
Thanks to Karen Winner, Esq. for alerting me to this news!
As reported here in October, Joey Watley is fighting the Connecticut Department of Children & Families (DCF). DCF took both of his sons away claiming disabilities of the children's mother and Joey. They are now adopted by their foster parents.
Joey has been fighting for the custody of his children for years. The main point is that the DCF workers should have offered the children's mother and Joey accommodations under the ADA if they thought the parents had mental impairments, rather than keeping the children in the system away from their parents.
He brought his suit to federal court in the Southern District of New York. After two weeks the court dismissed the complaint, and did not allow for him to be eligible for assigned counsel (pro bono).
He then brought the case to the Court of Appeals in the Second Circuit. They allowed him to receive legal services for free (pro bono). The lawyer's name is Andrew O' Toole.
Attorney O'Toole wrote a terrific brief and argued before the Second Circuit in New York City in January. I am told one of the judges, after the argument, from the bench, thanked Mr. O'Toole for his advocacy,
Within ONE WEEK the Court of Appeals vacated the judgment in the Southern District, and ordered a pro bono attorney be assigned to Joey. ( Watley v. Keller, Dkt No. 14-3862 (2d Cir.)).
The fight isn't over yet - but change can happen in the courts. Thanks Joey for keeping up the fight and Thanks to Attorney O'Toole for being one of the good guys!
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."
Found this article from the Georgia State Bar Association. http://sbog.informz.net/sbog/data/images/DRCurrents_SUMMER_14.pdf It is focused on the decision to use a mediator or arbitration when the claim is about ADA discrimination in the context of a job claim (Title III) ; it also speaks about requesting accommodations during the mediation and arbitration.
Courtrooms, mediation and arbitration offices fall under Title II of the ADA. Before you go to court, get an ADA Advocate …. Before you go to mediation or arbitration get your accommodations.
It’s all about protecting your rights and making sure you have the time you need to make the right decision for you, your family and your life.
“When it comes to reasonable accommodations/modifications, creativity is the key and the key question is going to be what accommodation out there allows the person with a disability to reach the same starting line without it fundamentally altering the essential functions of the job, the nature of the program, the activity, or the nature of the business.” Follows the same for the courtroom.
Thursday, August 20, 2015
"Lifting Up Westchester announces new board members"
On Wed. July 21 Donna Drumm, Esq. attended the Westchester County Bar Association's 7 credit Continuing Legal Education training on: Article 81 Training for Guardians, Court Evaluators and Attorneys of alleged incapacitated persons. Upon approval of her application, Ms. Drumm will be able to be appointed as a legal guardian, court evaluator and engage in defense of alleged incapacitated persons.
This certification will expand the protection of people with invisible disabilities from being deemed incapacitated by the courts and the removal of fundamental rights to conduct their lives.
DRUMM Notes is the blog site for ADA Advocates.
Celebrate the 25th anniversary of the Americans with Disabilities Act! July 26, 2015
FAQs on the ADA click here to read more...
The ADA in a Nutshell:
Q: What is the Americans with Disabilities Act (ADA)?
A: The ADA is the first comprehensive civil rights law that protects people with disabilities from discrimination on the basis of disability. It was passed almost unanimously by Congress and signed into law by President George H.W. Bush on July 26, 1990. The ADA protects people with disabilities from discrimination in all aspects of employment, in access to public services such as transportation and state and local government programs and services, and access the goods and services provided by businesses such as restaurants, stores, hotels and other types of businesses such as law offices and medical facilities. (Source: ADA Network)
Q: Are courthouses covered under the ADA?
A: YES. The ADA consists of five sections or Titles. Title II covers all activities of state and local governments. Title II requires that state and local governments give people with disabilities an equal opportunity to benefit from all of their programs, services and activities. (Source: ADA Network) Examples of these are courthouses (with more than 50 employees).
Q: I have an invisible disability, PTSD, can I request accomodations for my upcoming court appearance? A: YES. Under the ADA "Public entities are required to make reasonable modifications to policies, practices, and procedures where necessary to avoid discrimination, until doing so would fundamentally alter the nature of the service, program or activity provided."
Q: How do I qualify my disability?
A: The courts want to make sure that people who have disabilities are protected from discrimination. Accomodations for physical disabilities, like wheel chair ramps, and parking places designated for the handicapped are commonplace. The same law that required public entities to install these accomodations for persons with physcal disabilities apply to those with invisible disabilities. Your ADA Advocate can help identify your disability, assess if it is covered under the ADA and seek accomodations.
To learn more about the ADA, visit the ADA National Network
Come back for upcoming posts on...