Watley v. Keller

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

JOSEPH WATLEY and :

KARIN HASEMANN, :

:

Plaintiffs, :

:

v. : CASE NO. 3:13-cv-1858(RNC)

:

DEPARTMENT OF CHILDREN & :

FAMILIES, :

JOETTE KATZ, and :

VANNESSA DORANTES, :

:

Defendants. :

RULING AND ORDER

Plaintiffs Joseph Watley and Karin Hasemann bring this

action against the Connecticut Department of Children & Families

(“DCF), former DCF Commissioner Joette Katz, and current

Commissioner Vanessa Dorantes, claiming that DCF took custody of

their children, and ultimately obtained a final court order

terminating their parental rights, in violation of federal laws

protecting persons with disabilities. The action has been

remanded following sua sponte dismissal of the original

complaint, which was filed pro se. See ECF Nos. 9 (dismissing

case), 22 (order of Second Circuit vacating and remanding). The

amended complaint, prepared by counsel, alleges violations of

the plaintiffs’ rights under the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12131–12134; the Rehabilitation Act

(“RA”), 29 U.S.C. § 794; and the Due Process Clause of the

Fourteenth Amendment, made enforceable under 42 U.S.C. § 1983.

Plaintiffs seek money damages to redress DCF’s alleged

intentional discrimination and failure to provide reasonable

accommodations. In addition, they seek injunctive relief

requiring DCF to adopt certain institutional reforms.1

Plaintiffs commenced this action in federal district court

after more than a decade of litigation in the trial and

appellate courts of Connecticut, including five neglect trials,

four termination of parental rights (“TPR”) trials, and three

appeals. Published decisions of state trial and appellate

courts in the underlying proceedings frame the present action.

1 Counts one, two and three of the amended complaint are brought

under the ADA and RA. These counts are construed as attempting

to obtain damages and injunctive relief against DCF, as

permitted by both statutes. Neither statute provides for

recovery of damages against individuals, so I do not read these

counts as attempting to recover damages from defendants Katz and

Dorantes. See De Figueroa v. New York, -- F. Supp. 3d --, 2019

WL 4221181, at *14 n.20 (E.D.N.Y. 2019). Count four of the

amended complaint is brought under § 1983. It is well-settled

that § 1983 does not provide a cause of action against a state

agency, Basak v. N.Y. State Dep’t of Health, 9 F. Supp. 3d 383,

389 (S.D.N.Y. 2014) (quoting Will v. Mich. Dep’t of Police, 491

U.S. 58, 62-71 (1989)), and that the cause of action it provides

against state officials is available only if the individual was

personally involved in the alleged deprivation of federal

rights, see, e.g., Carter v. Broome County, 394 F. Supp. 3d 228,

243 (N.D.N.Y. 2019) (noting that supervisory liability under

§ 1983 requires an individual defendant’s own “culpable action

or inaction” and “personal involvement” in the violation).

Accordingly, I read this count as attempting to state a claim

for damages against former Commissioner Katz in her personal

capacity and a claim for injunctive relief against Commissioner

Dorantes in her official capacity.

See In re Joseph W., Jr., 53 Conn. Supp. 1 (2013)(describing

procedural history in detail).2 The decisions show the

following:

- DCF obtained orders of temporary custody with regard to

plaintiffs’ children soon after each was born on the ground that

the children would be in immediate physical danger if they were

left in plaintiffs’ care;

- DCF’s subsequent actions affecting plaintiffs’ parental

rights were undertaken in conjunction with court orders

2 In adjudicating a motion to dismiss, a district court may take

judicial notice of “any written instrument attached to the

complaint, statements or documents incorporated into the

complaint by reference, . . . and documents possessed by or

known to the plaintiff and upon which it relied in bringing the

suit.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98

(2d Cir. 2007). In addition, the court may “take judicial

notice of documents filed in other courts, . . . not for the

truth of the matters asserted in the other litigation, but

rather to establish the fact of such litigation and related

filings.” Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d

Cir. 1991).

Throughout this Ruling and Order, judicial notice is taken

of factual findings and legal conclusions of state courts in the

underlying proceedings. The findings are not relied on for

their truth but only for their preclusive effect. See Bristol

v. Nassau Cty., 685 Fed. App’x 26, 28 (2d Cir. 2017) (affirming

appropriateness of district court’s “judicial noticing of

decisions in related state criminal proceedings” because

“[t]hese self-authenticating, publicly available records

satisfied” the judicial notice rule “and bore directly on the

question of issue preclusion”); Apotex, Inc. v. Acorda

Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016) (holding that

a court’s consideration of matters subject to judicial notice

does not impermissibly convert a ruling on a motion to dismiss

into one for summary judgment).

requiring plaintiffs to take certain specific steps to regain

custody;

- the court-ordered steps and their implementation took

account of the requirement in the applicable state statute that

DCF make “reasonable efforts” to reunite a parent and child,

Conn. Gen. Stat. § 17a-112(j);

- the reasonable efforts requirement in state law aligns

with federal law, which prohibits a state from seeking to

terminate parental rights without first making reasonable

efforts to preserve the family, as required by the Adoption

Assistance and Child Welfare Act, 42 U.S.C. § 1305 (1980), and

the Adoption and Safe Families Act, 42 U.S.C. § 1305 (1997);

- the reasonable efforts requirement under state law

requires DCF to consider a parent’s disabilities, including

mental disabilities;

- in the course of the proceedings leading to termination

of plaintiffs’ parental rights (“TPR proceedings”), both

plaintiffs denied having any disability and resisted having to

cooperate with DCF and comply with court-ordered specific steps;

- plaintiffs asserted that the removal of the children from

their custody constituted discrimination based on their

perceived disabilities in violation of the ADA, that their

lawyers were ineffective in failing to adequately present

defenses under the ADA, and that an “ADA coordinator” should be

present throughout court proceedings;

- plaintiffs were not given an ADA coordinator but they

were given additional time and other assistance to meet the

court-ordered steps and, on this basis, DCF was found to have

met the reasonable efforts requirement before plaintiffs’

parental rights were terminated.

Pending for decision is defendants’ motion to dismiss all

the claims in the amended complaint pursuant to Federal Rules of

Civil Procedure 12(b)(1) and (6). Defendants contend that the

claims for damages are barred by the Rooker-Feldman doctrine,3

collateral estoppel, the statute of limitations, sovereign

immunity and qualified immunity. They further contend that

plaintiffs lack standing to seek injunctive relief. Discovery

has been stayed at the request of the defendants over

plaintiffs’ objection pending a determination of whether

plaintiffs have any legal basis on which they can proceed.

In opposing dismissal of the amended complaint, plaintiffs

emphasize that before their parental rights were terminated,

they were denied the assistance of an ADA coordinator. They

contend that the denial violated Title II of the ADA, which

provides, “no qualified individual with a disability shall, by

3 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

reason of such disability, be excluded from participation or

denied the benefits of the services, programs or activities of a

public entity.” 42 U.S.C. § 12132. When plaintiffs requested

an ADA coordinator, DCF took the position that Title II of the

ADA did not apply in child protection proceedings, which was a

common view, if not the prevailing view, at the time. See

Michael Lanci, Note, In the Child’s Best Interests? Rethinking

Consideration of Physical Disability in Child Custody Disputes,

118 Colum. L. Rev. 875, 883 n.51 (2018) (citing In re Adoption

of Gregory, 747 N.E.2d 120, 124 (Mass. 2001); In re Doe, 60 P.3d

285, 290-91 (Haw. 2002)).4 The state trial court agreed with DCF

that the ADA did not “create[] special obligations in a child

protection proceeding.” In re Joseph W., 2011 WL 5842570, at

*5. Plaintiffs sought appellate review of this issue without

success. In re Joseph W., 305 Conn. at 653 (“[W]e reject the

ADA claim of the father . . . .”); In re Joseph W., 146 Conn.

App. at 476 (rejecting the ADA claim of the mother).

In the amended complaint, plaintiffs allege that during the

period 2002 to 2013, DCF violated the antidiscrimination

provision of the ADA by removing their children, and later

4 It was commonly thought that the ADA/RA did not apply in child

neglect and TPR proceedings on the ground that the primary

concern in such a proceeding is the best interest of the child,

not the best interest of the parent.

seeking termination of their parental rights, based on

discredited stereotypes about the parenting ability of persons

with mental disabilities. They also contend that DCF violated

the ADA by failing to provide them with reasonable

accommodations enabling them to regain custody. Because no

state court squarely addressed these claims in the underlying

proceedings, plaintiffs submit that they should be able to

litigate them here.

Defendants argue that plaintiffs cannot obtain relief on

the claims in the amended complaint without asking this court to

review and reject decisions made by the state courts.

Defendants’ assessment is accurate. A final termination of

parental rights cannot occur unless a state court makes certain

findings, including the crucial finding that “reasonable

efforts” to achieve reunification have been made by the state

with due regard for the parent’s disabilities. A claim in

federal court that parental rights have been unlawfully

terminated due to discrimination on the basis of disability

necessarily asks the federal court to review the state court’s

decision and either vacate it or award damages or both. But few

principles are as firmly established as the rule that prohibits

federal district courts from reviewing decisions of state

courts. In our system of state and federal courts, the only

federal court empowered to review state court decisions is the

United States Supreme Court. This rule applies even when the

state court has incorrectly decided an issue of federal law.

I recognize the profoundly serious nature of the harm for

which plaintiffs seek redress. I also appreciate the role and

responsibility of the federal district court in ensuring access

to a federal trial proceeding for persons whose federal rights

have been violated by state officials. Nevertheless, I conclude

that the amended complaint must be dismissed.

The primary obstacle to adjudication of the claims in the

amended complaint is the Rooker-Feldman doctrine, which provides

that federal district courts lack subject matter jurisdiction to

review state court judgments. Plaintiffs have the burden of

demonstrating that subject matter jurisdiction exists,

notwithstanding Rooker-Feldman. To meet this burden, it must be

shown that they can obtain relief on the claims in the amended

complaint without this court effectively reviewing and rejecting

a state court decision. Unquestionably, had the state courts

squarely confronted the claims in the amended complaint and

rejected them on the merits, this court would lack jurisdiction

to review those decisions. It is no different when, as here,

the state courts rejected the ADA claims in substance.

Not all of DCF’s actions were undertaken pursuant to a

court order, so Rooker-Feldman is not a complete bar to the

claims in the amended complaint. But other obstacles prevent

plaintiffs from proceeding on these claims: collateral estoppel

bars relitigation of issues decided in state court; most of the

actions complained of fall well outside the three-year statute

of limitations; plaintiffs’ claim for damages under § 1983 is

unsupported by allegations necessary to state a claim for relief

against former Commissioner Katz and cannot be maintained in any

event because of qualified immunity; and plaintiffs lack

standing to pursue injunctive relief. Accordingly, the amended

complaint will be dismissed.

I. Background

Plaintiffs are the biological parents of two sons, Joseph

Jr. and Daniel. Ms. Hasemann is also the biological mother of a

daughter, Kristina. DCF is the state agency responsible for

responding to reports of child abuse and neglect, providing

substitute care, and making efforts to reunite families before

resorting to termination proceedings. Defendant Katz served as

Commissioner of DCF from February 2011 to January 2019.

Defendant Dorantes has been Commissioner of DCF since February

2019.5

Between 2002 and 2013, DCF pursued neglect and termination

proceedings against the plaintiffs, ultimately resulting in the

5 A court may take judicial notice of the dates of appointment or

election of a public official. See, e.g., Gladden v. City of

N.Y., No. 12-cv-7822 (PKC), 2013 WL 4647193, at *3 (S.D.N.Y.

Aug. 29, 2013).

termination of Ms. Hasemann’s parental rights with respect to

all three children and Mr. Watley’s parental rights with respect

to Joseph Jr. and Daniel. All three children have been adopted

and are reportedly doing well and plaintiffs do not seek an

order overturning the termination of their parental rights.

Rather, they seek damages for emotional distress and injunctive

relief in the nature of systemic reforms to ensure DCF’s future

compliance with the ADA in connection with neglect and TPR

proceedings.

Ms. Hasemann’s interaction with DCF began in October 2002,

when she gave birth to Kristina. Kristina was born prematurely

at 34 weeks and required complex medical care. The hospital

contacted DCF due to Ms. Hasemann’s response to Kristina’s

birth. She “insisted the girl was a boy, [that the baby had]

had a heart attack, and [that she] should be fed in an unusual

and inappropriate pattern even though the food intake for this

premature baby was crucial.” In re Kristina H, No.

L15CP02007724A, 2004 WL 886937, at *1 (Conn. Super. Ct. Apr. 2,

2004). She also informed the hospital she suffered from

narcolepsy.6

6 The state court found that Ms. Hasemann’s “sense of reality

impacted on her ability to be a fit mother,” In re Kristina H,

2004 WL 886937, at *1 (finding that after Kristina’s birth, the

mother “was confused about whether there were two fetuses” and

“reported she ha[d] delivered a brain”).

On the basis of the hospital’s report, DCF invoked a 96-

hour hold under Connecticut law, which authorizes DCF to remove

a child without parental consent for up to 96 hours if it has

probable cause to believe the child is in imminent risk of

physical harm and immediate removal is necessary to ensure the

child’s safety. Conn. Gen. Stat. § 17a-101g(e) and (f). DCF

simultaneously went to court and sought an Order of Temporary

Custody (“OTC”), which was granted on the ground that Kristina

would be in immediate physical danger if she remained under the

care of her mother.

The court issued preliminary “specific steps,” which Ms.

Hasemann was required to follow in order to regain custody. In

re Kristina H., No. L15CP02007724A, 2007 WL 241218, at *1, *3,

*7 (Conn. Super. Ct. Jan. 17, 2007) (citing Conn. Gen. Stat.

§ 46b-129). In 2004, “the court adjudicated Kristina

neglected,” and committed her “to the care, custody and

guardianship of DCF.” Id. at *1. DCF later filed a termination

of parental rights petition. After a trial in 2007, Ms.

Hasemann’s parental rights were terminated. Id. at *1, *27.

Joseph Jr. and Daniel were born in July 2005 and July 2006,

respectively. Soon after each was born, the state court issued

an OTC.7 In both cases, the court issued specific steps for both

7 Joseph Jr. was born in Pennsylvania after plaintiffs left

Connecticut late in Ms. Hasemann’s pregnancy. In re Joseph W.,

plaintiffs. In re Joseph W., Jr., 53 Conn. Supp. at 2, 5-6.

DCF’s neglect petitions alleged “predictive neglect,” which

requires a showing that under the parents’ care, it is “more

likely than not” that the child would be “denied proper care and

attention physically, educationally, emotionally or morally.”

Id. at 5 (citing In re Joseph W., 305 Conn. 633, 648-49 (2012)).8

In December 2007, soon after Ms. Hasemann’s parental rights

were terminated with regard to Kristina, DCF filed termination

of parental rights petitions with regard to Joseph Jr. and

Daniel. Id. at 7. After a trial in October 2008, the court

terminated plaintiffs’ parental rights with respect to both

children. Id. The Appellate Court reversed the judgment of the

trial court on the ground that Mr. Watley had not been given an

adequate opportunity to contest a finding of neglect. Id. at 8

Nos. L15CP05008039A, L15CP05008191A, 2008 WL 4635639, at *4

(Conn. Super. Ct. Oct. 1, 2008), rev’d 121 Conn. App. 605

(2010). Joseph Jr. was removed from plaintiffs’ custody by

Pennsylvania authorities due to Ms. Hasemann’s “reportedly

bizarre behavior” and subsequently placed in DCF custody

pursuant to an OTC. Id.; see also In re Joseph W., Jr., 53

Conn. Supp. 1, 36 (Super. Ct.), aff’d, 146 Conn. App. 468

(2013), cert. denied, 310 Conn. 950. Daniel was born in

Connecticut and removed by DCF under a “ninety-six hour hold.”

Id. at 49.

8 The predictive neglect doctrine has been criticized. See,

e.g., Alissa Bang, Note, What do Judges and Fortune Tellers Have

in Common? Connecticut’s Predictive Neglect Doctrine as a Basis

for Premature Suspension of Parental Rights, 32 Quinnipiac Prob.

L.J. 410, 411 (2019) (“[I]n practice, this doctrine is

effectively discriminatory and severely disadvantageous for

parents with psychiatric disabilities.”).

(citing In re Joseph W., Jr., 301 Conn. 245 (2011)). In 2011,

the Connecticut Supreme Court agreed with the decision of the

Appellate Court and remanded the case for a new trial. In re

Joseph W., Jr., 301 Conn. at 248.

Following another trial in April 2012, the trial court

again terminated plaintiffs’ parental rights. See In re Joseph

W., Jr., 53 Conn. Supp. at 9. This judgment also was reversed

on appeal. The Connecticut Supreme Court held that a third

trial was necessary because the trial court had applied the

wrong standard of proof for determining “predictive neglect.”

In re Joseph W., 305 Conn. at 645, 648.

After a third trial in December 2012, the trial court

terminated plaintiffs’ parental rights, the Appellate Court

affirmed, and the Connecticut Supreme Court denied certiorari.

See In re Joseph W., Jr., 53 Conn. Supp. 1, 192, aff’d, 146

Conn. App. at 477, cert. denied, 310 Conn. at 950.

In the course of the underlying proceedings, plaintiffs

were evaluated by a number of professionals, sometimes at the

direction of DCF and sometimes by court order. See, e.g., id.

at 17, 21-23, 29, 42-43, 146. Ms. Hasemann was found to have

severe narcolepsy, schizotypal personality disorder, attention-

deficit/hyperactivity disorder, chronic functional impairments,

cognitive disorder not otherwise specified, cognitive deficits,

antisocial personality disorder, and major depression. She also

may suffer from the residual effects of a frontal lobe brain

tumor removal that occurred when she was sixteen. Mr. Watley

has been found to have “a personality disorder not otherwise

specified.” He receives Social Security Disability Insurance

benefits because of a spinal injury resulting from a car

accident.

II. Legal Standard

“A case is properly dismissed for lack of subject matter

jurisdiction under Rule 12(b)(1) when the district court lacks

the statutory or constitutional power to adjudicate it.” Nike,

Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (quotation

marks and citation omitted), aff’d, 568 U.S. 85 (2013). The

party asserting subject matter jurisdiction has the burden of

proving its existence by a preponderance of the evidence.

Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002).

To survive a motion to dismiss for failure to state a claim

on which relief may be granted under Rule 12(b)(6), a complaint

must plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). A claim satisfies the plausibility standard if

it is supported by “factual content that allows the court to

draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

III. Discussion

In the following sections, I first address the issue of

sovereign immunity and conclude that the state has waived its

Eleventh Amendment immunity under the RA, which makes it

unnecessary to decide whether the ADA abrogates a state’s

sovereign immunity. I then address the claims for money

damages, first under the ADA and RA, then under § 1983. I

conclude that the claims under the ADA and RA are barred by

Rooker-Feldman, collateral estoppel and the statute of

limitations, and that the claim under § 1983 is similarly

barred. I also conclude that plaintiffs cannot recover damages

under § 1983 because they do not plausibly allege that former

Commissioner Katz was personally involved in the alleged

deprivation of federal rights. I further conclude that even if

plaintiffs could plausibly state such a claim, it would have to

be dismissed based on qualified immunity. Finally, I address

the issue of plaintiffs’ standing to seek injunctive relief and

conclude that their allegations are insufficient to support

standing under Article III to seek the injunctive relief set

forth in the amended complaint.

A. Sovereign Immunity

The Eleventh Amendment to the United States Constitution

“generally bars suits in federal court by private individuals

against non-consenting states.” Leitner v. Westchester Cmm’ty

Coll., 779 F.3d 130, 134 (2d Cir. 2015) (citing Port Auth.

Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990)).

Eleventh Amendment immunity “encompasses not just actions in

which the state is actually named as a defendant, but also

certain actions against state agents and instrumentalities,

including actions for the recovery of money from the state.”

Id. (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,

429 (1997)). Eleventh Amendment immunity is subject to the

exception articulated in Ex parte Young, 209 U.S. 23 (1908),

which allows for injunctive relief. See Milliken v. Bradley,

433 U.S. 267, 289 (1977) (noting that the Ex parte Young

exception “permits federal courts to enjoin state officials to

conform their conduct to requirements of federal law”).9

DCF (and Commissioner Dorantes in her official capacity)

may invoke Eleventh Amendment immunity. Bhatia v. Conn. Dep’t

of Children & Families (DCF), 317 Fed. App’x 51, 52 (2d Cir.

2009). Therefore, plaintiffs cannot obtain money damages under

9 Defendants argue that the Ex parte Young exception does not

apply because plaintiffs do not have standing to seek an

injunction. Def. Mem. at 34. Because a lack of standing

eliminates a court’s subject matter jurisdiction, Pinson v.

JPMorgan Chase Bank, Nat’l Ass’n, 942 F.3d 1200, 1206 (11th Cir.

2019), defendants may well be correct. It would offend

sovereign immunity to require a state to defend a suit in

federal court even though subject matter jurisdiction is

lacking. However, because I conclude that plaintiffs do not

have standing to seek injunctive relief, I need not determine

the applicability of Ex parte Young.

the ADA and RA unless the state has consented to suit or

Congress has validly abrogated the state’s immunity. NAACP v.

Merrill, 939 F.3d 470, 475 (2d Cir. 2019). Congress may

override the Eleventh Amendment when it legislates pursuant to §

5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S.

445 (1976). The ADA contains a purported abrogation of Eleventh

Amendment immunity, and the RA contains a purported waiver

clause for state agencies that accept federal funding. See

Garcia v. S.U.N.Y. Health Sci. Cent. of Brooklyn, 280 F.3d 98

(2d Cir. 2001).10

In Garcia, the Court of Appeals examined the ADA and RA to

assess their impact on a state’s sovereign immunity. The Court

concluded that the ADA’s abrogation is valid as to conduct

motivated by “discriminatory animus or ill will due to

10 As plaintiffs note, and defendants do not contest, it does not

matter for present purposes whether immunity is abrogated by the

ADA or waived under the RA, so long as one of the two validly

eliminates the state’s immunity. “[T]he rights and remedies

under Title II of the ADA are identical to those under the

Rehabilitation Act.” T.W. v. N.Y. St. Bd. of Law Examiners, No.

16-cv-3029 (RJD), 2019 WL 6034987, at *3 (E.D.N.Y. Nov. 14,

2019). At this stage, then, immunity need only fail under one

statute or the other. See id.; Ross v. City Univ. of N.Y., 211

F. Supp. 2d 518, 528 (E.D.N.Y. 2016) (“Because sovereign

immunity does not bar plaintiff’s Rehabilitation Act claim, the

court has subject matter jurisdiction over this action

regardless of CUNY’s immunity from the ADA claim. Consequently,

there is no risk of violating CUNY’s ‘right not to be haled into

court’ when it is immune from suit. . . . [A]s a practical

matter, this case will proceed on the same course regardless of

whether CUNY may later be found immune from plaintiff’s ADA

claim.”).

disability.” See 280 F.3d at 112. The Court also stated that

the RA expresses Congress’s clear “intent to condition

acceptance of federal funds on a state’s waiver of its Eleventh

Amendment immunity.” Id. at 113.

The Garcia court concluded that, under the circumstances

presented there, the defendant could have believed it had

already lost its immunity under the ADA’s abrogation, so its

acceptance of federal funds was not a knowing waiver of immunity

under the RA; the state agency could not have knowingly waived a

right it did not believe it possessed. See id. at 113-15.

After Garcia, a state accepting federal funds would know

that the validity of the ADA’s abrogation was “far from clear.”

Constantine v. Rectors & Visitors of George Mason Univ., 411

F.3d 474, 495-96 (4th Cir. 2005). DCF accepted federal funding

in that context, thereby waiving its immunity under the RA.

Accordingly, the Eleventh Amendment does not bar plaintiffs’

suit. See Garcia, 280 F.3d at 113-14; Ross, 211 F. Supp. 3d at

528.11

11 Plaintiffs allege that DCF’s alleged misconduct meets the test

of animus or ill will announced in Garcia. There is an

unsettled question about the status of Garcia after the Supreme

Court’s decision in United States v. Georgia, 546 U.S. 151, 159

(2006)(holding that the ADA’s abrogation is valid as applied to

suits alleging conduct that violates the Fourteenth Amendment).

See Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis.,

804 F.3d 178, 194-95 (2d Cir. 2015). Because I conclude that

Connecticut waived its immunity under the RA, I do not need to

resolve this question and therefore do not reach it.

B. Claims for Damages

1. Count One: Intentional Discrimination Under the ADA/RA

In count one, plaintiffs allege that they are each

disabled, or regarded by defendants as disabled, and that DCF

intentionally discriminated against them by

(1) placing Joe Jr. and Daniel into foster care based on

stereotypes and assumptions based on Plaintiffs’

disabilities, (2) failing to provide Plaintiffs with

family supports even though Mr. Watley and Ms. Hasemann

had good family supports, (3) denying Plaintiffs equal

opportunities to participate in and benefit from its

services, programs, and activities; (4) utilizing

criteria and methods of administration having the effect

of discriminating against Plaintiffs on the basis of

disability and defeating or substantially impairing

accomplishment of the objectives of its rehabilitation

and/or reunification program with respect to Plaintiffs;

and (5) failing to reasonably modify its policies,

practices, and procedures where necessary to avoid

discriminating against Plaintiffs on the basis of their

disability.

Am. Compl. ¶ 95 (citations omitted). They further allege that

DCF “failed to (1) implement appropriate reunification services

. . . (2) identify appropriate tasks; [and] (3) assist

Plaintiffs in meeting tasks to achieve rehabilitation

reunification,” as well as failing to impose “only necessary and

legitimate safety requirements.” Id. ¶ 97. They also claim DCF

acted with deliberate indifference. Id. ¶ 100.

a. Legal Standards

To establish a violation under the ADA or RA, “plaintiffs

must demonstrate that (1) they are ‘qualified individuals’ with

a disability; (2) that the defendants are subject to the ADA;

and (3) that plaintiffs were denied the opportunity to

participate in or benefit from defendants’ services, programs,

or activities, or were otherwise discriminated against by

defendants, by reason of plaintiffs’ disabilities.” Henrietta

D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).12

To establish that discrimination occurred “by reason of”

their disabilities, plaintiffs must demonstrate that disability

discrimination was a “but-for cause of any adverse” action.

Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019);

see also id. at 349 (“We conclude that ‘on the basis of’ in the

ADA requires a but-for causation standard.”).13 Using this but-

12 Though there are “subtle differences” between the ADA and the

RA, the standards governing liability under the two statutes are

generally the same. Henrietta D., 331 F.3d at 272. Thus,

“unless one of those subtle distinctions is pertinent . . .,

[courts] treat claims under the two statutes identically.” Id.

To establish a claim under the RA, a plaintiff must also

establish “that the defendants receive federal funding.” Id.

DCF does not dispute that it receives federal funding.

13 Prior to Natofsky, plaintiffs bringing claims under the ADA

could recover based on a “mixed-motive” standard rather than the

more stringent but-for standard. See Parker v. Columbia

Pictures Indus., 204 F.3d 326, 336 (2d Cir. 2000). However, in

2009, the Supreme Court held that distinctions in language

between Title VII, which allows for mixed-motive claims, and the

ADEA foreclosed mixed-motive theories under the latter statute,

and required but-for causation under the ADEA. See Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 174 (2009). After Gross, the

Second Circuit joined several others in holding that, because

the ADA’s language more closely resembles the ADEA’s language

than it does Title VII’s language, the ADA requires but-for

causation. Natofsky, 921 F.3d at 348. Because the RA

for standard, plaintiffs can pursue three theories of

discrimination: disparate impact, disparate treatment, and

failure to make reasonable accommodations. See Reg’l Econ.

Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35,

48 (2d Cir. 2002) (recognizing availability of all three

theories under ADA, RA, and Fair Housing Act), superseded by

statute on other grounds. “Regardless of a plaintiff’s theory

of liability,” they must show but-for causation. H.P. ex rel.

W.P. v. Naperville Cmty. Unit Sch. Dist. #203, 910 F.3d 957, 960

(7th Cir. 2018).

b. Analysis

I conclude that the claims of direct discrimination in

count one are precluded by the Rooker-Feldman doctrine,

collateral estoppel and the statute of limitations.

i. Rooker-Feldman

The Rooker-Feldman doctrine prevents a party who has lost

in state court from obtaining review of the state court judgment

by a federal district court. See Lance v. Dennis, 546 U.S. 459

(2006); Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

280 (2005). The doctrine applies if four requirements are met:

1) the plaintiff must have lost in state court; (2) the

plaintiff must complain of injuries caused by the state court

incorporates the ADA’s causation standard, the RA also requires

but-for causation after Natofsky. See id. at 346–47.

judgment; (3) the plaintiff must ask the district court to

review and reject that judgment; and (4) the state court

judgment must have been rendered before the district court

proceedings commenced. Green v. Mattingly, 585 F.3d 97, 101 (2d

Cir. 2009) (citing Hoblock v. Albany Cty. Bd. of Elections, 422

F.3d 77, 85 (2d Cir. 2005)).

Rooker-Feldman applies broadly to any suit that, in effect,

seeks review of or damages based on a state court judgment. It

precludes, for example, any claim “seek[ing] vacatur or

rejection of [an] order terminating [plaintiffs’] parental

rights.” Voltaire v. Westchester Cty. Dep’t of Soc. Servs., No.

11-cv-8876 (CS), 2016 WL 4540837, at *9 (S.D.N.Y. Aug. 29,

2016). But it also precludes an award of damages stemming from

an injury sustained as a result of a state court determination.

See id. at *11 (citing Lomnicki v. Cardinal McCloskey Servs.,

No. 04-cv-4548, 2007 WL 2176059, at *5 (S.D.N.Y. July 26, 2007)

and McClean v. City of N.Y., No. 04-cv-8353, 2007 WL 415138, at

*4 (S.D.N.Y. Feb. 6, 2007)); Sample v. Monterey Cty. Family &

Children Servs., No. C09-01005 HRL, 2009 WL 2485748, at *3 (N.D.

Cal. Aug. 7, 2009) (“Although [plaintiff] asks for monetary

damages, she would only receive a damage award if this court

determined that the Dependency Court’s decisions pertaining to

the custody of her children — including any review or

authorization of defendants’ actions — were in error.”);

Lomnicki v. Cardinal McCloskey Servs., No. 04-CV-4548 (KMK),

2007 WL 2176059, at *5 (S.D.N.Y. July 26, 2007) (“Plaintiff does

not avoid Rooker-Feldman by seeking damages instead of

injunctive relief. In order to award damages to Plaintiff, the

Court would have to review the decision of the Family Court.”).

Rooker-Feldman can apply even if the claim presented in

federal court was not presented in state court. The doctrine

bars “not only claims that involve direct review of a state

court decision, but also claims that are ‘inextricably

intertwined’ with a state court decision.” See Swiatkowski v.

Bank of Am., NT & SA, 103 F. App’x 431, 432 (2d Cir. 2004).

When a federal plaintiff relies on a legal theory not raised in

state court, Rooker-Feldman will apply if the federal suit

“complains of injury from a state-court judgment and seeks to

have that state-court judgment reversed.” Hoblock, 422 F.3d at

86.

In Hoblock, the Court of Appeals stated that a father whose

parental rights have been terminated in state court “may not”

sue in federal court on the theory that the judgment violates

his substantive due process rights “regardless of whether he

raised any constitutional claims in state court.” Id. at 87.

That observation is consistent with decisions of the Second

Circuit concerning the impact of Rooker-Feldman in cases brought

to federal court following child custody proceedings in state

court.14 District courts in this Circuit have likewise applied

Rooker-Feldman to ADA claims that required review of state court

decisions concerning child custody.15

The issue, then, is whether plaintiffs complain of injuries

sustained as a result of decisions of state courts. Plaintiffs

contend their injuries were caused by DCF rather than any

judicial decision.16 Defendants disagree. They contend that

plaintiffs complain of injuries from state court decisions.

14 See, e.g., Green, 585 F.3d at 103 (noting that Rooker-Feldman

would bar a § 1983 action following a final order permanently

removing plaintiff’s child from her custody); Phifer v. City of

N.Y., 289 F.3d 49, 57 (2d Cir. 2002) (“To the extent that Phifer

alleges in her complaint that certain defendants who were

associated with Amkia’s case in the family court were motivated

by racism in their recommendations, representations, or requests

to the family court, we find that Rooker–Feldman bars these

claims.”).

15 See Johnson v. Myers, No. 10-cv-1964, 2014 WL 2744624, at *6

(E.D.N.Y. June 16, 2014) (Fourteenth Amendment claims based on

child neglect investigation and prosecution barred by Rooker-

Feldman), vacated on other grounds and remanded sub nom. Myers

v. Patterson, 819 F.3d 625 (2d Cir. 2016); Skipp v. Conn.

Judicial Branch, No. 3:14-CV-00141(JAM), 2015 WL 1401989, at *6

(D. Conn. Mar. 26, 2015) (stating that review of reasonable

accommodations claims would “require me to sit in judgment of

determinations made by state courts respecting accommodations

that were made for plaintiff’s disability”); Richter v. Conn.

Judicial Branch, No. 3:12CV1638(JBA), 2014 WL 1281444, at *8 (D.

Conn. Mar. 27, 2014) (applying Rooker-Feldman where plaintiff

alleged state court judgments “were the result of discrimination

under the ADA and have caused her injury”), aff’d, 600 F. App’x

804 (2d Cir. 2015).

16 At oral argument, plaintiffs’ counsel stated that plaintiffs’

damages “predated any judgment entered by [a] state court.”

“[A] federal suit complains of injury from a state-court

judgment, even if it appears to complain only of a third party’s

actions, when the third party’s actions are produced by a state-

court judgment and not simply ratified, acquiesced in, or left

unpunished by it.” Cho v. City of New York, 910 F.3d 639, 646

(2d Cir. 2018) (quoting Hoblock, 422 F.3d at 88). See also GASH

Assocs. v. Village of Rosemont, 995 F.2d 726, 729 (7th Cir.

1993)(relevant question under Rooker-Feldman is whether “the

injury of which [plaintiff] complains . . . [was] caused by the

judgment,” or did the plaintiff merely “suffer an injury out of

court and then fail to get relief from state court?”).

I agree with defendants that plaintiffs are seeking relief

for injuries caused by state court decisions, which this court

lacks jurisdiction to review under Rooker-Feldman.17 The removal

and placement of plaintiffs’ children in foster care, provision

of specific steps, determination of their visitation schedule,

and termination of their parental rights took place pursuant to

17 The first and final parts of the Rooker-Feldman test are not

in serious dispute; prior to commencing this action, the

plaintiffs repeatedly lost in state court. See In re Joseph W.,

Jr., 53 Conn. Supp. at 5-11, 35-36, 49-50, 61-62, 69-77

(discussing procedural history); In re Joseph W., Jr., 146 Conn.

App. 468 (affirming the trial court judgment); In re Joseph W.,

Jr., 310 Conn. 950 (denying certiorari). Similarly, because an

award of damages based on a state court judgment is equivalent

for Rooker-Feldman purposes to an injunction overturning the

judgment, the third element of the test is met. See supra

(citing cases).

state court orders. See In re Joseph W., Jr., 53 Conn. Supp. at

5-6, 36, 49, 61-62, 69-77. In addition, the state courts

rejected plaintiffs’ requests for an ADA coordinator to be

present during court proceedings; ruled that they had

substantially failed to comply with the specific steps the

courts had identified; determined that placement with

plaintiffs’ family members was not appropriate; and, in most

instances, dictated the providers from whom plaintiffs could

receive treatment. See id. at 10-11, 21, 48, 61-62, 74-75, 98-

99, 104, 117-20, 142-45, 156-57, 169-75; see also Bristol, 685

Fed. App’x at 28 (confirming that district court could

judicially notice state court decisions that “bore directly on

the question of issue preclusion”). To recover damages based on

any of these matters, plaintiffs must demonstrate that the state

courts erred. Rooker-Feldman dictates that this court abstain

from engaging in substantive review of the state courts’

decisions.

ii. Collateral Estoppel

In addition to the jurisdictional bar posed by Rooker-

Feldman, collateral estoppel – or issue preclusion – bars

relitigation of issues decided by the state courts in the

underlying proceedings. See Hoblock, 422 F.3d at 87-88, n.6.

“In Connecticut, to be subject to collateral estoppel, an issue

must have been (1) fully and fairly litigated, (2) actually

decided, (3) necessary to the judgment in the first action, and

(4) identical to the issue to be decided in the second action.”

Wanamaker v. Town of Westport Bd. of Educ., 11 F. Supp. 3d 51,

66 (D. Conn. 2014). Preclusive effect will be given to the

final judgment of a trial court, so long as it has not been set

aside, as well as to the final judgment of an appellate court.

See Restatement (Second) of Judgments §§ 13, 27 & cmt. o (1982);

Stone v. Williams, 970 F.2d 1043, 1054 (2d Cir. 1992) (noting

that issue preclusion “prevent[s] relitigation of an issue of

fact or law that has already been necessarily decided as part of

a valid, final judgment”).

Collateral estoppel precludes relitigation of the issue at

the heart of plaintiffs’ complaint – the propriety of DCF’s

decision to seek termination of their parental rights based on a

finding of “predictive neglect.”18 Plaintiffs claim that this

decision was based on unlawful stereotyping and discrimination.

Am. Compl. ¶¶ 29, 52, 69. Defendants answer that DCF’s decision

was based on the need to protect the children from harm, as

authorized by the “direct threat” exception under the ADA and

RA. 28 C.F.R. § 35.139(a). They argue that collateral estoppel

18 Rooker-Feldman bars review of the state courts’ decision to

actually terminate plaintiffs’ parental rights. However, for

purposes of this analysis, I assume that DCF’s decision to seek

termination of plaintiffs’ parental rights can itself be the

source of a redressable injury.

applies because plaintiffs cannot successfully challenge DCF’s

decision to seek termination of their parental rights without

having this court review and reject the state courts’ resolution

of issues regarding the applicability of the direct threat

exception. I agree.19

ADA-covered entities are not required “to permit an

individual to participate in or benefit from” their programs or

services if doing so would be a “direct threat to the health or

safety of others.” 28 C.F.R. § 35.139(a); see also Lovejoy-

Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 219-21 (2d Cir.

2001); Doe v. Deer Mountain Day Camp, Inc., 682 F. Supp. 2d 324,

345-50 (S.D.N.Y. 2010).20 The ADA defines “direct threat” as “a

significant risk to the health or safety of others that cannot

be eliminated by a modification of policies, practices, or

19 Defendants make this argument in the context of Rooker-

Feldman. See Def. Reply at 5. But I think it is more

appropriate to consider the argument as a basis for applying

collateral estoppel.

20 See also Protecting the Rights of Parents and Prospective

Parents with Disabilities, U.S. Dep’t of Health & Human Servs. &

U.S. Dep’t of Justice (Aug. 10, 2015),

https://www.ada.gov/doj_hhs_ta/child_welfare_ta.html (“Under

Title II of the ADA or Section 504 [of the RA], in some cases, a

parent or prospective parent with a disability may not be

appropriate for child placement because he or she poses a

significant risk to the health or safety of the child that

cannot be eliminated by a reasonable modification. This

exception is consistent with the obligations of child welfare

agencies and courts to ensure the safety of children.”)

(footnote marker omitted) (citing Sch. Bd. of Nassau Cty. v.

Arline, 480 U.S. 273, 287 (1987); 28 C.F.R. § 35.139(a)-(b)).

procedures or by the provision of auxiliary aids or services.”

42 U.S.C. § 12182(b)(3). To determine whether an individual

poses a significant risk to health or safety under the ADA, “a

public entity must make an individualized assessment, based on

reasonable judgment that relies on current medical knowledge or

on the best available objective evidence, to ascertain: the

nature, duration, and severity of the risk; the probability that

the potential injury will actually occur; and whether reasonable

modifications of policies, practices, or procedures or the

provision of auxiliary aids or services will mitigate the risk.”

28 C.F.R. § 35.139(b).

Under Connecticut law, a court may terminate an

individual’s parental rights only if it finds that: (1) DCF has

made “reasonable efforts” to reunify the parent and child, (2)

termination is in the best interest of the child, and (3) one of

several statutory grounds for termination is present, including,

as relevant here, that the child is neglected and the parent has

failed to achieve reunification. See In re Joseph W., 53 Conn.

Supp. at 2-3, 141-43 (citing Conn. Gen. Stat. § 17a-112(j)). To

establish predictive neglect (so as to satisfy the final prong),

the state must show “on the basis of evidence of events

preceding the filing of the neglect petition” that “it was more

likely than not” that if the child had remained with the parent

or parents, “the child would have been” neglected. In re Joseph

W., Jr., 53 Conn. Supp. at 127 (brackets omitted) (quoting In re

Joseph W., 305 Conn. at 648-49). Specifically, the state must

show “that if the child were to remain in [the] parent’s

independent care, the child would be ‘denied proper care and

attention, physically, educationally, emotionally or morally

. . . or would [be] permitted to live under conditions,

circumstances or associations injurious to the well-being of the

child or youth.’” Id. (quoting In re Joseph W., 305 Conn. at

649).

In the underlying proceedings, the state courts decided

that the predictive neglect doctrine was “correctly invoked.”

Id. at 128. In doing so, they necessarily determined that

leaving the children in the care of the plaintiffs would be

“injurious” to the “well-being” of the children. See id. at

127. And for the state courts to terminate plaintiffs’ parental

rights, they had to find that DCF made “reasonable efforts” at

reunification. Id. at at 2-3, 141-43. In substance, then, the

state courts determined that reunification would pose a

significant risk to the health or safety of the children and

that the risk could not be eliminated by a reasonable

modification.

The final trial court’s findings concerning the risk to the

children and DCF’s reasonable efforts at reunification were

necessary to the judgment. A finding of probable harm was

necessary to the neglect ruling, a finding that DCF had made

reasonable efforts at reunification was also necessary to the

neglect ruling, and the neglect ruling was necessary to the

termination of plaintiffs’ parental rights. See In re Joseph

W., Jr., 53 Conn. Supp. at 2-3, 141-42; 150-151; 178-79; 182;

188-89.

To reject the direct threat defense in this case, it would

be necessary to reject findings of fact made by the final trial

court in its decision terminating plaintiffs’ parental rights,

which was affirmed on appellate review. The court found that

“mother, aided by father, continued to engage in a cyclical

pattern of conceiving children, whose custody, of necessity, had

to be assumed by the state at birth in order to protect them

from the real risk of imminent and serious harm that every

professional who has ever evaluated and observed mother try to

care for her children has noted as a serious concern.” In re

Joseph W., Jr., 53 Conn. Supp. at 136. The court also found

that, “[l]ike mother, father showed an inability to safely

supervise his children.” Id. at 160. These factual findings –

that the children were likely to be harmed if left in

plaintiffs’ care - are identical to the factual issues pertinent

to the direct threat defense. Cf. Jensen v. Foley, 295 F.3d

745, 747-48 (7th Cir. 2002) (state court’s finding “that

probable cause exists to believe that the child is neglected”

under state law precludes Fourth Amendment claim because state

law issue is identical to whether “taking is supported by

probable cause to believe that the child would be subject to the

danger of abuse if not removed,” and therefore the federal court

was “barred by the doctrine of issue preclusion from

reconsidering the issue”).

Plaintiffs argue that because DCF and the state courts

failed to appreciate the applicability of the ADA, their ADA and

RA claims were not fully and fairly litigated or necessary to

the judgment. Plf. Mem. at 20. But the issues fully and fairly

litigated, actually decided, and necessary to the final state

court judgment are inextricably intertwined with the ADA and RA

claims presented here. The state court’s findings and

conclusions regarding those issues – e.g., that reunification

would pose a danger to the children – operate to preclude the

plaintiffs from stating an ADA/RA claim by conclusively

establishing the direct threat defense as a matter of law at the

motion-to-dismiss stage. See Matusick v. Erie Cty. Water Auth.,

757 F.3d 31, 49 (2d Cir. 2014) (holding that even if the legal

frameworks and standards applicable in two proceedings are not

identical, the factual findings supporting the first judgment

are given preclusive effect).

Plaintiffs further contend that it was never conclusively

established in the underlying proceedings that DCF’s actions

were reasonable under the ADA. However, the state courts

recognized that the reasonable efforts required of DCF to

achieve reunification of a parent and child include “taking the

parent’s mental condition into consideration” and “failure to

provide adequate services because of the parent’s mental

condition would violate not only [Connecticut law], but the

ADA.” In re Antony B., 54 Conn. App. 463, 473 n.9 (Conn. App.

Ct. 1999); see also id. (“[W]e do not suggest that the ADA does

not apply to the reunification services and programs that the

department must make to meet the parents’ specialized needs.”).

On the second appeal in the underlying proceedings, the

Connecticut Supreme Court confirmed that In re Antony B.’s

discussion of the ADA applies to neglect proceedings, and

affirmed the trial court’s rejection of plaintiffs’ ADA claims.

In re Joseph W., 305 Conn. at 650. On remand, the trial court

stated: “Based on the law and the facts . . . the ADA has not

been violated in this case. . . . Under the particular

circumstances of this case, the department made reasonable

efforts even considering any ADA related issues. The

respondents were not discriminated against under the ADA.” In

re Joseph W., 2012 WL 1759377, at *42–43. Because the

requirements of state and federal antidiscrimination law are

substantially the same in this respect, a federal plaintiff’s

ADA claims will generally be precluded when, as here, the state

court has determined that DCF made reasonable efforts at

reunification. Cf. In re Hicks/Brown, 893 N.W.2d at 639-40

(holding that, under Michigan law, the requirement that the

state make “reasonable efforts to reunify a family before

seeking termination of parental rights” entailed making

“reasonable modifications” under the ADA).

Even if it were possible for DCF to comply with state law

and nonetheless violate the ADA, collateral estoppel would still

apply in this case. See Miller v. Nichols, 586 F.3d 53, 61 (1st

Cir. 2009) (dismissing claims under the ADA and RA that the

state “fail[ed] to accommodate the parents’ needs in the context

of the reunification obligation” because the underlying facts

were litigated in state court), cert. denied, 559 U.S. 1008

(2010). The final trial court found that DCF made reasonable

(indeed “extraordinary”) efforts at reunification and plaintiffs

failed to rehabilitate. In re Joseph W., Jr., 53 Conn. Supp. at

145; see id. at 143-182. These findings preclude plaintiffs

from seeking to prove they were denied reasonable accommodations

that would have enabled them to avoid termination of their

parental rights.

That collateral estoppel bars the reasonable accommodations

claim is confirmed by examining in detail each of plaintiff’s

allegations in light of the findings of the state courts.

Plaintiffs allege that DCF failed to provide reasonable

accommodations by: (a) failing to identify appropriate tasks and

assist plaintiffs in meeting those tasks; (b) failing to provide

meaningful visitation opportunities; (c) refusing to allow Ms.

Hasemann to treat with her preferred provider, Sally Guest; (d)

refusing to allow plaintiffs to treat with providers near their

homes; (e) refusing to consider placement with their family

members and failing to provide “family supports”; and (f)

refusing to provide an ADA coordinator. See Am. Compl. ¶¶ 43,

70, 72, 76, 79, 95, 97.

With the exception of the last allegation (discussed

below), all these allegations are in direct conflict with the

findings of the final trial court. Taking each allegation in

turn, the state court found the following: (a) “the parents were

provided with specific steps to take to facilitate the return of

Joseph and Daniel,” In re Joseph W., Jr., 53 Conn. Supp. at 153,

and largely failed to comply with those steps, see id. at 153-

78; (b) DCF “complied with court orders that the parents be

given more liberal visitation than is usually offered upon

removal, particularly to parents who fail to comply with

services necessary to address their parental and mental health

deficiencies,” id. at 169; (c) DCF “attempted to work with

mother’s self-referred counselor, Sally Guest, but was met with

a lack of cooperation from Guest,” id. at 145; (d) both parents

repeatedly refused to engage with medical providers and stopped

treating with any providers after 2007 (in the case of Ms.

Hasemann) and 2008 (in the case of Mr. Watley), see id. at 75-

77, 104, 116-17, 121; and (e) there was no evidence plaintiffs

in fact requested placement with their family members; Ms.

Hasemann’s parents’ home would, in any event, not have been “a

safe or suitable choice for the children”; and placement with

Mr. Watley’s family “was never credible,” id. at 159, 165, 170.

Based on the foregoing analysis, I conclude that plaintiffs

are precluded from proceeding on the claim for direct

discrimination under count one. The state courts addressed the

acts and omissions alleged here. Factual issues bearing on the

plaintiffs’ claim were fully and fairly litigated and necessary

to the reasonable efforts determination, which was necessary to

the final judgment finding the children neglected and

terminating plaintiffs’ parental rights. See In re Joseph W.,

Jr., 53 Conn. Supp. at 182.

The only potential exception is the plaintiffs’ allegation

that they should have been given an ADA coordinator. The state

courts conclusively determined that plaintiffs were not entitled

to an ADA coordinator in connection with the court proceedings.

See In re Joseph W., 305 Conn. at 640, 652; In re Joseph W.,

Jr., 146 Conn. App. at 475–76. But they did not explicitly

consider whether the ADA imposed an obligation to appoint an ADA

coordinator during reunification efforts prior to the

commencement of the trial proceedings. Moreover, the final

appellate court noted that plaintiffs’ request for an ADA

coordinator “was directed only to the trial proceeding.” Id. at

475 n.5.

Nevertheless, plaintiffs are barred from trying to

establish that appointment of an ADA coordinator during

reunification efforts would have enabled them to regain custody.

The final trial court found that “[w]ithout success, [DCF] did

everything possible to properly assess the parents’ deficiencies

and address them.” In re Joseph W., Jr., 53 Conn. Supp. at 185

(emphasis added). In other words, the court found that, as a

factual matter, plaintiffs could not have benefitted from

additional supports.21

Plaintiffs’ counsel suggested at oral argument that

discovery might enable them to surmount the obstacles to

litigation of their claims posed by Rooker-Feldman and

collateral estoppel. In ruling on the motion to dismiss,

21 Plaintiffs have not alleged with specificity what an ADA

coordinator would have done to enable them to regain custody.

They may believe that an ADA coordinator would have arranged for

as yet unidentified but nonetheless significant accommodations

in the form of supports and services that would have enabled

them to achieve the specific steps required to regain custody.

Assuming that is their position, they have not met their burden

of alleging “the existence of a plausible accommodation, the

costs of which, facially, do not clearly exceed its benefits.”

Henrietta D., 331 F.3d at 281 (quoting Borkowski, 63 F.3d at

138).

however, the court must assess the plausibility of the claims

based on the amended complaint without speculating about

discovery. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570.

“Because the plaintiffs here have not nudged their claims across

the line from conceivable to plausible, their complaint must be

dismissed.” Twombly, 550 U.S. at 570.

iii. Statute of Limitations

Plaintiffs seek to recover damages under the ADA/RA on the

ground that DCF’s decision to invoke a 96-hour hold (as happened

with Kristina and Daniel) was motivated by impermissible

discrimination on the basis of disability.22 This claim may not

be precluded by Rooker-Feldman or collateral estoppel. E.g.,

Schweitzer v. Crofton, 935 F. Supp. 2d 527, 540-45 (E.D.N.Y.

2013), aff’d, 560 F. App’x 6 (2d Cir. 2014); Phifer, 289 F.3d at

59. However, it is barred by the three-year statute of

limitations.

The parties agree that the relevant statute of limitations

is three years, pursuant to Conn. Gen. Stat. § 52-577. See

Kloth-Zanard v. Malloy, No. 3:15-CV-00124 (MPS), 2016 WL

5661977, at *7 n.5 (D. Conn. Sept. 29, 2016). Plaintiffs do not

dispute that “[f]ederal law governs the question of when a

federal claim accrues.” Morse v. Univ. of Vt., 973 F.2d 122,

22 The amended complaint alleges that “DCF moved too hastily to

remove the children.” Am. Compl. ¶ 99.

125 (2d Cir. 1992). Under federal law, limitation periods start

to run when the allegedly discriminatory act occurs, not when

its effects are felt. Chardon v. Fernandez, 454 U.S. 6, 8

(1981). Because plaintiffs filed their original complaint on

December 13, 2013, the statute of limitations bars any claims

related to discriminatory acts occurring before December 13,

2010.

Plaintiffs argue that equitable tolling should apply. But

that possibility “is foreclosed by Connecticut precedent, which

establishes Conn. Gen. Stat. § 52–577 as a statute of repose not

susceptible to equitable tolling.” Gerena v. Korb, 617 F.3d

197, 206 (2d Cir. 2010).

The applicability of Connecticut’s continuing course of

conduct doctrine requires more comment. This doctrine is

“understood to be a tolling mechanism.” Lee v. Dep’t of

Children & Families, 939 F. Supp. 2d 160, 171 (D. Conn. 2013).23

“[T]o support a finding of a continuing course of conduct that

may toll the statute of limitations, there must be evidence of

the breach of a duty that remained in existence after commission

23 “Most Connecticut case law regarding the continuing course of

conduct doctrine deals with medical malpractice, legal

malpractice, or situations in which there are continuing

misrepresentations,” not discrimination. Lee, 939 F. Supp. 2d

at 172 (citation omitted). However, in Lee, the court found

that the plaintiff sufficiently alleged “that the defendants

failed on a continuing basis to accommodate her disability”

within the limitations period. Id.

of the original wrong related thereto. That duty must not have

terminated prior to commencement of the period allowed for

bringing an action for such a wrong.” Id. at 171-72 (emphasis

omitted) (quoting Neuhaus v. DeCholonky, 280 Conn. 190, 201-02

(2006)). This presents a problem for plaintiffs because their

parental rights were originally terminated in a court order of

October 2008.

Plaintiffs contend that any statute-of-limitations argument

is procedurally defective because it depends on facts neither

alleged in the complaint nor incorporated by reference. But the

complaint explicitly refers to the order of October 2008. Am.

Compl. ¶ 77. “Where the dates in a complaint show that an

action is barred by a statute of limitations, a defendant may

raise the affirmative defense in a pre-answer motion to

dismiss.” Ghartey v. St. John’s Queens Hosp., 869 F.2d 160, 162

(2d Cir. 1989). And judicial notice may be taken of the fact of

a prior court order. E.g., Staehr v. Hartford Fin. Servs. Grp.,

Inc., 547 F.3d 406, 425-26 (2d Cir. 2008).

The October 2008 order was not overturned until June 2010.

In re Joseph W., Jr., 121 Conn. App. 605 (2010). DCF had a duty

not to discriminate against plaintiffs regarding Daniel and

Joseph Jr. until October 2008, when their parental rights were

terminated. But DCF cannot have owed a duty to plaintiffs while

the state court’s initial termination of their parental rights

applied from 2008 until at least June 2010.24 At best,

therefore, any continuing course of conduct began no earlier

than June 2010.

2. Count Two: Associational Discrimination Under The ADA/RA

In count two, plaintiffs allege that Mr. Watley was

discriminated against based on his association with Ms. Hasemann,

who was disabled or perceived to be disabled by DCF, when DCF (1)

removed his sons and (2) disregarded the recommendation of a

psychologist who found that he was not a risk to his sons and

recommended overnight visitation be started. Am. Compl. ¶¶ 112–

16.

i. Legal Standard

The Second Circuit has recognized that the RA provides a

cause of action for “associational discrimination” against a

non-disabled person on the basis of their association with a

disabled person. “[N]on-disabled parties bringing associational

24 See Conn. Gen. Stat. § 17a-111b(a) (ordering DCF to “make

reasonable efforts to reunify a parent with a child unless the

court . . . has approved a permanency plan other than

reunification pursuant to subsection (k) of section 46b-129”).

The amended complaint alleges that DCF refused to allow

plaintiffs any visitation after their parental rights were

terminated in October 2008. Am. Compl. ¶¶ 77, 81. However, it

was state court orders that prohibited visitation. See In re

Joseph W., Jr., 53 Conn. Supp. at 72-73, 186–87 (“Although the

parents consistently visited their children until the fall of

2008, they have been unable or unwilling to adequately address

their housing, employment, mental health, medical and parenting

issues. Consequently, their requests to renew contact with the

boys were denied by the court in 2008 and 2011.”).

discrimination claims need only prove an independent injury

causally related to the denial of federally required services to

the disabled persons with whom the non-disabled plaintiffs are

associated.” Loeffler v. Staten Island Univ. Hosp., 582 F.3d

268, 279 (2d Cir. 2009) (Wesley, J., concurring for majority).

See also Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 432

(2d Cir. 2016) (recognizing associational discrimination claim

under ADA in employment context). There are subtle but

important differences between the tests announced in Loeffler

and Graziadio. The Loeffler formulation recognizes liability

for injuries caused to a non-disabled party based on

discrimination against a disabled party.25 The Graziadio

standard recognizes a claim under the ADA for discrimination

against a non-disabled party based on their relationship with a

disabled party. See id. (requiring that plaintiff have suffered

an “adverse employment action . . . under circumstances raising

a reasonable inference that the disability of the relative or

associate was a determining factor in the employer’s

decision.”).

25 In Loeffler itself, for example, the Second Circuit held that

the children of a deaf father stated an associational

discrimination claim because “they were compelled to provide

sign language interpretation for the Hospital and were

consequently taken out of school and exposed to their father's

suffering.” 582 F.3d at 279–80. There was no argument that the

children themselves were discriminated against.

The amended complaint relies on the Graziadio formulation.

See Am. Compl. ¶ 109 (labelling count two as “Intentional

Discrimination based on Relationship/Association With an

Individual With a Disability”), ¶ 110 (“Mr. Watley was

discriminated against based upon his association and/or

relationship with Ms. Hasemann.”), ¶ 112 (“DCF discriminated

against Mr. Watley based on his association and/or relationship

with Ms. Hasemann.”). I assume for present purposes that this

formulation supports a claim under the RA.

Because Graziadio was an employment discrimination case, it

provides little guidance as to the requirements for an

associational discrimination claim in other contexts. In

keeping with Natofsky and Middletown, I conclude that a

plaintiff presenting an associational discrimination claim must

show that he or she was discriminated against (through disparate

impact, disparate treatment, and/or failure to make reasonable

accommodations), and that his or her association with a person

who is disabled or perceived to be disabled was a but-for cause

of the discrimination.26

ii. Analysis

26 There are limits on the kinds of associations that count for

the purposes of an associational disability claim, but they are

not relevant here. See McGRX, Inc. v. Vermont, No. 5:10-cv-1,

2011 WL 31022, at *5 (D. Vt. Jan. 5, 2011).

Like the claims discussed above, Mr. Watley’s claim based

on the removal of his sons is precluded by Rooker-Feldman and

collateral estoppel. Because the same analysis applies, it will

not be repeated here. To the extent the claim is based on the

initial 96-hour hold with regard to Daniel, it is barred by the

statute of limitations, again for reasons explained earlier.

Finally, to the extent the claim seeks to contest termination of

Mr. Watley’s parental rights, it is precluded by the state

courts’ findings in connection with the final order of

termination, as also explained above.

Mr. Watley’s claim based on the recommendations of his

psychologist is barred by collateral estoppel because of

findings made by the final trial court. The court found that

both psychologists who diagnosed and treated Mr. Watley “did not

ever recommend the children could be returned immediately to

father’s care.” In re Joseph W., Jr., 53 Conn. Supp. at 116.

The issue was actually litigated and necessary to the judgment

terminating his parental rights.

3. Count Three: Retaliation under ADA/RA

Plaintiffs’ third count alleges in conclusory terms that

the defendants “intimidated, threatened, coerced, and/or engaged

in discriminatory conduct against Mr. Watley and Ms. Hasemann

after they asserted their rights or requested reasonable

modifications or otherwise engaged in protected activity to

secure their rights” under the ADA and RA. Am. Compl. ¶ 121.

Somewhat more specifically, the amended complaint alleges that

plaintiffs engaged in good faith protected activity by

requesting modifications and supports, in particular, an ADA

coordinator. Id. ¶ 119. In response, the amended complaint

alleges, defendants “[(1)] cancelled Plaintiffs’ visitation with

their sons and [(2)] denied their requests for modifications and

additional supports, including [(3)] the ability to seek or

continue to seek treatment from certain providers.” Id. ¶ 122.

i. Legal Standard

“The elements of a retaliation claim under either the

Rehabilitation Act or the ADA are (i) a plaintiff was engaged in

protected activity; (ii) the alleged retaliator knew that

plaintiff was involved in protected activity; (iii) an adverse

decision or course of action was taken against plaintiff; and

(iv) a causal connection exists between the protected activity

and the adverse action.” Natofsky, 921 F.3d at 353 (internal

alterations omitted) (quoting Weixel v. Bd. Of Educ. Of City of

New York, 287 F.3d 138, 148 (2d Cir. 2002)). The fourth element

may be demonstrated “either ‘(1) indirectly, by showing that the

protected activity was followed closely by discriminatory

treatment, or through other circumstantial evidence such as

disparate treatment of [others] who engaged in similar conduct;

or (2) directly, through evidence of retaliatory animus directed

against the plaintiff by the defendant.’” Id. (quoting

Littlejohn v. City of New York, 795 F.3d 297, 319 (2d Cir.

2015)).

ii. Analysis

Plaintiffs’ retaliation claim cannot survive application of

Rooker-Feldman and collateral estoppel. In addition, the

allegations in the amended complaint fail to state a plausible

retaliation claim.

a. Visitation

Visitation between plaintiffs and their children was

governed by court orders. The state courts denied motions for

visitation filed by plaintiffs on May 16, 2008; January 7, 2009;

September 28, 2011; October 23, 2011, and March 11, 2013. In re

Joseph W., Jr., 53 Conn. Supp. at 5, 9, 72, 73, 74. Mr. Watley

withdrew one motion for visitation. Id. at 70. Ms. Hasemann’s

visitation rights were suspended following an incident with a

DCF employee resulting in her arrest, and were later partially

reinstated by court order. Id. at 71–72. At one point, both

plaintiffs failed to appeal orders denying motions for

visitation while at the same time appealing other orders. See

id. at 74, 119. As explained above, state courts - not DCF -

granted OTCs, set the visitation schedule, approved of various

reunification plans, refused to appoint an ADA coordinator in

connection with the court proceedings, and ultimately terminated

plaintiffs’ parental rights. Under Rooker-Feldman, this court

does not have jurisdiction to review those decisions.

Plaintiffs’ retaliation claim based on denial of visitation

is also precluded by collateral estoppel. The appropriateness

of visitation is based on the best interests of the child, and

DCF’s visitation determinations are subject to modification by

the trial court. See Conn. Gen. Stat. § 17a–10a. The trial

courts’ denials of plaintiffs’ visitation motions thus entailed

a determination that visitation was not in the best interest of

the children.27 The issue is not subject to relitigation even

though plaintiffs allege a retaliatory motive on the part of

DCF.

In addition to being precluded, plaintiffs’ claim fails to

satisfy the plausibility standard. Plaintiffs’ motions for

visitation were denied several times prior to their requests

that they be provided an ADA coordinator for their neglect

proceedings, which took place in October 2011 and December 2012.

27 The final trial court concluded that “both parents failed to

maintain a reasonable degree of safety for the children during

supervised visitation,” and that “[n]either parent made any

measurable progress despite receiving significant parenting and

treatment supports and extra visitation time.” In re Joseph W.,

Jr., 53 Conn. Supp. at 168–69. The court concluded that

“resuming visits . . . is not in the boys’ best interests”

because “[w]hen the parents had visitation, they both

demonstrated a lack of judgment and poor parenting skills. . . .

Reinstating visits may cause the children emotional trauma and a

reoccurrence of behavior problems.” Id. at 192.

Id. at 10-11. Even assuming the denials of visitation can be

scrutinized for a possible retaliatory motive, notwithstanding

repeated state court findings that the denials were appropriate,

the sequence of events makes plaintiffs’ retaliation claim

implausible. See Natofsky, 921 F.3d at 353–54 (awarding summary

judgment where record indicated plaintiff was demoted prior to

taking protected action).

The existence of a non-retaliatory motive also makes the

claim implausible. “Claims for retaliation are analyzed under

the burden-shifting framework that is established for Title VII

cases.” Harvin v. Manhattan & Bronx Surface Transit Operating

Auth., 767 Fed. App’x 123, 128 (2d Cir. 2019) (citing Treglia v.

Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002)). Once a

plaintiff establishes a prima facie case of retaliation, “the

burden shifts to the defendant to articulate a legitimate, non-

retaliatory reason for the challenged employment decision. If a

defendant meets this burden, ‘the plaintiff must point to

evidence that would be sufficient to permit a rational

factfinder to conclude that the [defendant’s] explanation is

merely a pretext.’” Treglia, 313 F.3d at 721 (quoting Cifra v.

Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)). Plaintiffs

cannot meet this burden.

b. Denial of Requests for Support and Modifications

Plaintiffs next claim that DCF retaliated against them for

requesting modifications and supports by refusing to grant such

requests. This theory is foreclosed as a matter of law.

“Defendants’ alleged failure to accommodate [plaintiffs’]

disability subsequent to an ADA . . . protected request cannot

be bootstrapped into a viable disability retaliation claim.”

Missick v. City of New York, 707 F. Supp. 2d 336, 356 (E.D.N.Y.

2010) (citing Gomez v. Laidlaw Transit, Inc., 455 F. Supp. 2d

81, 90 (D. Conn. 2006) (“[A] failure to accommodate cannot

constitute retaliation for an employee’s request for

accommodation.”)). If a plaintiff requests accommodation, there

are two possible outcomes: acceptance of the request or denial.

Denial of a non-meritorious request is a correct decision, not

retaliation. Denial of a meritorious request is, by definition,

disability discrimination for failure to accommodate. It cannot

also be the basis of a retaliation claim.

Moreover, a claim that DCF retaliated against the

plaintiffs by denying requests for accommodations is precluded.

“It is well established that when the department takes custody

of a minor child, the trial court has the authority to issue

specific steps to the department to facilitate reunification

with the parents.” In re Leah S., 284 Conn. 685, 696 (2007)

(emphasis added). As discussed above, the decisions about which

plaintiffs complain were decisions of the state courts, and I do

not have jurisdiction to review them.

c. Interference with Treatment from Preferred

Providers

Finally, plaintiffs allege that DCF retaliated against them

by interfering with their ability to seek or continue to seek

treatment from their preferred providers. However, Ms.

Hasemann’s treatment with Ms. Guest was terminated by court

order, not DCF. Plaintiffs also allege that “DCF contacted [Mr.

Watley’s] psychologist and the psychologist then attempted to

convince” Mr. Watley to plead nolo contendre to DCF’s

termination petition, causing him to “los[e] all confidence in

the psychologist.” Am. Compl. ¶ 71. Plaintiffs do not state

when this alleged contact occurred or whether it followed any

protected activity. Accordingly, there are no allegations that

allow for a reasonable inference of a causal connection between

protected activity and this contact.

4. Count Four: Violation of Constitutional Rights Under

§ 1983

Plaintiffs seek money damages against former Commissioner

Katz under § 1983 for depriving them of a Fourteenth Amendment

right to substantive due process. They allege that she violated

this right by (1) denying them the fundamental right to parent

their children, and (2) taking the position that the ADA and RA

did not apply to DCF’s programs or services. Am. Compl. ¶¶ 128–

34.28 I agree with the defendants that plaintiffs’ claim under §

1983 is foreclosed by Rooker-Feldman and the statute of

limitations. I also agree that plaintiffs have failed to plead

the elements of a cognizable substantive due process claim and

any such claim is barred by qualified immunity.

i. Rooker-Feldman

In Hoblock, as mentioned earlier, the Second Circuit stated

that a substantive due process claim arising from termination of

parental rights in state court would be foreclosed by Rooker-

Feldman. See 422 F.3d at 87. That is the situation presented

here. Numerous other courts have applied Rooker-Feldman to bar

claims in similar circumstances. See Voltaire, 2016 WL 4540837,

at *10 (collecting cases); see also Edem v. Spitzer, 204 F.

App’x 95, 96-98 (2d Cir. 2006) (dismissing procedural due

process claim predicated on paternity proceedings); Johnson v.

Queens Admin. for Children’s Servs., 197 F. App’x 33, 34 (2d

Cir. 2006) (“[T]o the extent that [plaintiff] was asserting

[constitutional] claims regarding the adequacy of the Family

Court proceedings, the District Court lacked subject matter

28 Plaintiffs also allege a violation of their fundamental right

to parent their children under the First and Ninth Amendments.

However, in this Circuit, claims “addressing the right to

intimate association vis-a-vis parent-child relationships” are

analyzed “under the principles of substantive due process rather

than the First Amendment.” Uwadiegwu v. Dep’t of Soc. Servs. of

the Cty. of Suffolk, 91 F. Supp. 3d 391, 398 (E.D.N.Y. 2015),

aff’d, 639 F. App’x 13 (2d Cir. 2016).

jurisdiction under the Rooker-Feldman doctrine.” (citation

omitted)). Plaintiffs’ claim under § 1983 must be dismissed on

this basis.

ii. Statute of Limitations

Plaintiffs’ § 1983 claim alleging deprivation of the right

to parent their children also encounters the same statute of

limitations problem as the claims under the ADA and RA. Once

“court confirmation of the basis for removal is obtained, any

liability for the continuation of the allegedly wrongful

separation of parent and child can no longer be attributed to

the officer who removed the child.” Southerland v. City of New

York, 680 F.3d 127, 153 (2d Cir. 2012) (citations omitted). In

other words, plaintiffs can recover for a constitutional

violation only on the basis of the separation that preceded

court confirmation – here, the 96-hour holds. See Mortimer v.

City of New York, NO. 15-cv-7186(KPF), 2018 WL 1605982, at *15

(S.D.N.Y. Mar. 29, 2018) (dismissing for failure to state a

claim mother’s allegation of substantive due process violation

because child’s separation was pursuant to a court order).

Section 1983 claims are subject to Connecticut’s three-year

personal injury statute of limitations. See Lounsbury v.

Jeffries, 25 F.3d 131, 133–34 (2d Cir. 1994). The 96-hour holds

occurred long before the filing of this action (and well before

former Commissioner Katz arrived at DCF).

iii. Failure to State a Claim

Plaintiffs’ claim that former Commissioner Katz deprived

them of a right to parent their children is unsupported by

allegations permitting a reasonable inference that she was

personally involved in any such deprivation. She became DCF

commissioner in February 2011, and plaintiffs complain primarily

of actions taken by DCF prior to 2008. See Am. Compl. ¶ 81

(noting that plaintiffs “have had no contact or visitation” with

their sons since 2008); In re Joseph W., 53 Conn. Supp. at 7-8

(noting that plaintiffs’ parental rights were terminated in

October 2008 and that the Supreme Court did not overturn the

decision until June 28, 2011).29 Because former Commissioner

Katz did not become Commissioner until long after DCF took

custody of the children, and years after plaintiffs last visited

the children, the plausibility standard requires plaintiffs to

allege specific acts or omissions on her part permitting a

reasonable inference of a causal connection between her conduct

and the loss of plaintiffs’ right to parent the children. In

other words, for this claim to cross the plausibility threshold,

plaintiffs must allege facts showing what this defendant did or

29 The court may, on a motion to dismiss, take judicial notice of

the date of appointment or election of a public official to

demonstrate that the official could not have been personally

implicated in a constitutional violation under § 1983. See

Gladden, 2013 WL 4647193, at *3.

failed to do after 2011 that caused them to lose their parental

rights. In the absence of such allegations, the claim must be

dismissed.

Plaintiffs claim that former Commissioner Katz violated

their rights under the Due Process Clause by taking the position

that the ADA did not apply to DCF’s activities. Construed

favorably to the plaintiffs, the allegation appears to be that

if she had recognized the applicability of the ADA earlier in

her tenure as Commissioner, they would have regained custody.

Viewed in light of the final trial court’s finding that DCF’s

reunification efforts were “extraordinary,” this allegation is

too vague to satisfy the plausibility standard.

Moreover, “[t]o state a claim for a violation of th[e]

substantive due process right of custody, a plaintiff must

demonstrate that the state action depriving him of custody was

‘so shocking, arbitrary, and egregious that the Due Process

Clause would not countenance it even were it accompanied by full

procedural protection.’” Cox v. Warwick Valley Cent. Sch.

Dist., 654 F.3d 267, 275 (2d Cir. 2011) (quoting Tenenbaum v.

Williams, 193 F.3d 581, 600 (2d Cir. 1999)). Plaintiffs cannot

show that former Commissioner Katz’s failure to recognize the

applicability of the ADA prior to the final termination of their

parental rights supports a substantive due process claim under

this stringent test. See Cty. of Sacramento v. Lewis, 523 U.S.

833, 846 (1998) (“[O]nly the most egregious official conduct can

be said to be arbitrary in the constitutional sense . . . .”

(quotation marks and citation omitted)).

iv. Qualified Immunity

Public officials are protected from being sued for damages

under § 1983 if “their conduct does not violate clearly

established constitutional rights” or if “it was objectively

reasonable for them to believe their acts did not violate those

rights.” Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir. 2003).

“A district court may grant a motion to dismiss based on this

qualified immunity if ‘the facts supporting the defense appear

on the face of the complaint.’” Hyman v. Abrams, 630 Fed. App’x

40, 42 (2d Cir. 2015) (quoting McKenna v. Wright, 386 F.3d 432,

435-36 (2d Cir. 2004)). Moreover, a court may conclude that

qualified immunity applies without first determining that a

federal right has been violated. See Pearson v. Callahan, 555

U.S. 223, 237 (2009). Following this approach, I conclude that

even if plaintiffs could allege a violation of their right to

substantive due process by former Commissioner Katz, qualified

immunity would require that any such claim be dismissed.

Qualified immunity applies because it was not “clearly

established at the time of the alleged misdeeds” that a state

officer violated a parent’s substantive due process rights by

failing to direct the implementation of ADA policies and

programs in child custody, neglect, and TPR proceedings. See

Holcomb, 337 F.3d at 220 (quoting Patel v. Searles, 305 F.3d

130, 135 (2d Cir. 2002)). A constitutional right is clearly

established for purposes of qualified immunity under § 1983 if

“existing precedent . . . placed the statutory or constitutional

question beyond debate.” Cugini v. City of New York, 931 F.3d

604, 615 (2d Cir. 2019) (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011)). Plaintiffs need not point to “a case directly

on point,” but must nonetheless find either “cases of

controlling authority in their jurisdiction at the time of the

incident” or “a consensus of cases of persuasive authority such

that a reasonable officer could not have believed that his

actions were lawful.” See al-Kidd, 563 U.S. at 741, 746.

Plaintiffs identify no such precedent. Rather, they cite cases

discussing the substantive protection the Due Process Clause

provides to the family relationship. See Plf. Mem. at 35

(citing Patel v. Searles, 305 F.3d 130, 136 (2d Cir. 2002)

(noting that the parent/child relationship warrants

constitutional protection); Adler v. Pataki, 184 F.3d 35, 42 (2d

Cir. 1999) (noting the existence of an individual right to

intimate association); Tenenbaum v. Williams, 193 F.3d 581, 600

(2d Cir. 1999) (noting that the familial relationship is

protected by the Due Process Clause)). The cited cases do not

demonstrate that the right allegedly violated here was clearly

established.

The Supreme Court “has repeatedly told courts . . . not to

define clearly established law at a high level of generality.”

Kisela v. Hughes, -- U.S. --, 138 S. Ct. 1148, 1152 (2018).

Just as a court may not reject a qualified immunity defense

because “the right to be free from excessive force” was clearly

established, qualified immunity cannot be denied in the

circumstances presented here simply because the right to the

sanctity of familial relationships was clearly established.

See, e.g., City of Escondido v. Emmons, -- U.S. --, 139 S. Ct.

500, 503 (2019) (holding that the Ninth Circuit “contravened

. . . settled principles” by “defin[ing] the clearly established

right at a high level of generality” as the right to be free

from excessive force and, “[w]ith the right defined at that high

level of generality,” denying qualified immunity).

Plaintiffs provide one citation to a Supreme Court case for

the proposition that it was clearly established that the ADA

applied to DCF’s programs. See Plf. Mem. at 36 (citing Penn.

Dep’t of Corrections v. Yeskey, 524 U.S. 206, 209 (1998)).

Plaintiffs’ quotation of Yeskey is taken out of context.30

30 Plaintiffs cite Yeskey for the proposition that “Title II [of]

the ADA and the Rehabilitation Act extends to all programs,

services, and activities of a state and its agencies, ‘without

any exception.’ Yeskey, 524 U.S. at 209.” Plf. Mem. at 36.

Moreover, even if Yeskey could be viewed as clearly establishing

that the ADA literally applies to all state programs, including

DCF’s, Yeskey did not clearly establish that DCF’s subsequent

failure to implement the ADA would violate a right to

substantive due process. The decision in Yeskey contains no

discussion of such a constitutional right.

No case has been cited or found that treats a state

agency’s failure to implement the ADA as a violation of

substantive due process. Cf. Spring v. Allegany-Limestone Cent.

Sch. Dist., 655 Fed. App’x 25 (2d Cir. 2016) (holding that

plaintiffs had stated an ADA/RA claim but not a substantive due

process claim). The Supreme Court has cautioned against

bootstrapping a statutory violation into a constitutional

violation. See Davis v. Scherer, 468 U.S. 183, 194 (“Officials

sued for constitutional violations do not lose their qualified

immunity merely because their conduct violates some statutory or

administrative provision.”). Accordingly, former Commissioner

Katz is entitled to qualified immunity.

C. Claim For Injunctive Relief

The full quote from Yeskey states: “Here, the ADA plainly covers

state institutions without any exception that could cast the

coverage of prisons into doubt.” 524 U.S. at 209 (emphasis

added). Unlike the operation of state prisons, family law is an

area that Congress and the Supreme Court has largely entrusted

to state authorities.

In a proper case, injunctive relief is available against

DCF under the ADA/RA and against the incumbent Commissioner of

DCF (here defendant Dorantes) under § 1983. The amended

complaint seeks injunctive relief in the form of an order

(i) requiring defendants to develop and implement

policies and procedures addressing how ADA and

Rehabilitation Act requirements apply to DCF

programs, services and activities, including

assessments, service planning and implementation,

visitation, family support and safety requirements;

(ii) requiring defendants to complete a self-assessment,

to inform parents with mental and/or psychological

disabilities of their rights and DCF’s obligations

under the ADA and Rehabilitation Act; [and]

(iii) requiring defendants to implement a training

program for all investigators, social workers,

supervisors on the requirements and how DCF seeks

to comply with the ADA and Rehabilitation Act with

respect to its programs and services;

Am. Compl. at 27.

Defendants oppose plaintiffs’ claim for injunctive relief

on the same grounds they oppose the claims for damages. In

addition, they contend that, under Article III of the

Constitution, plaintiffs lack standing to seek the injunctive

relief set forth above. Though the issue of plaintiffs’

standing under Article III is not free from doubt, I conclude

that their allegations are insufficient to confer standing.

Article III limits the judicial power of the federal courts

to adjudicating “cases” and “controversies.” The requirement of

standing serves to implement this limitation. The requirement

“applies to each claim and form of relief sought.” New York v.

U.S. Dep’t of Homeland Sec., -- F. Supp. 3d --, 2019 WL 5100372,

at *3 (S.D.N.Y. 2019) (internal citations omitted). The

requirement applies with particular force to claims for

injunctive relief against governmental bodies in the nature of

institutional reforms requiring significant public expenditures.

As the Supreme Court has stated, without a “real need to

exercise the power of judicial review, . . . allowing courts to

oversee legislative or executive action would significantly

alter the allocation of power . . . away from a democratic form

of government.” Summers v. Earth Island Inst., 555 U.S. 488,

493 (2009) (internal quotations omitted).

To establish that they have standing, plaintiffs must

satisfy three elements:

First, the plaintiff must have suffered an “injury in

fact” – an invasion of a legally protected interest which

is (a) concrete and particularized, and (b) “actual or

imminent, not ‘conjectural’ or ‘hypothetical.’” Second,

there must be a causal connection between the injury and

the conduct complained of – the injury has to be “fairly

. . . trace[able] to the challenged action of the

defendant, and not . . . the result of the independent

action of some third party not before the court.” Third,

it must be “likely,” as opposed to merely “speculative,”

that the injury will be “redressed by a favorable

decision.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)

(internal citations omitted).

“Past injuries . . . do not confer standing to seek

injunctive relief unless the plaintiff[s] can demonstrate that

[they are] likely to be harmed again in the future in a similar

way.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir.

2016); see also Steel Co. v. Citizens for a Better Env., 523

U.S. 83, 109 (1998) (“Past exposure to illegal conduct does not

in itself show a present case or controversy regarding

injunctive relief . . . if unaccompanied by any continuing,

present adverse effects.” (quoting O’Shea v. Littleton, 414 U.S.

488, 495-96 (1974))). Nor can plaintiffs establish standing

based on their desire to prevent DCF from discriminating against

others, no matter how sincere their desire may be. A plaintiff

“may not seek redress for injuries done to others.” Moose Lodge

No. 107 v. Irvis, 407 U.S. 163, 166 (1972); cf. Spokeo, Inc. v.

Robins, -- U.S. --, 136 S. Ct. 1540, 1547 n.6 (2016) (“[E]ven

named plaintiffs who represent a class ‘must allege and show

that they personally have been injured, not that injury has been

suffered by other, unidentified members of the class to which

they belong.’” (quoting Simon v. Eastern Ky. Welfare Rights

Org., 426 U.S. 26, 40, n.20 (1976))).

To have standing to pursue injunctive relief, plaintiffs

must allege (1) that they are currently experiencing harm due to

DCF’s illegal activity against them in the past, see Steel Co.,

523 U.S. at 109, or (2) that they face a substantial likelihood

of harm due to illegal activity by DCF in the future. See

Nicosia, 834 F.3d at 239. As to the first possibility, the

amended complaint alleges that plaintiffs continue to experience

emotional distress resulting from DCF’s actions culminating in

termination of their parental rights. See Am. Compl. ¶ 81-84.

Accepting this allegation as true, plaintiffs’ emotional

distress does not give them standing to seek the injunctive

relief requested by the amended complaint unless they can show a

“substantial likelihood” that the injunctive relief –

essentially, an order directing DCF to implement the ADA - will

redress their emotional harm. See Vt. Agency of Nat. Res. V.

U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000). Plaintiffs do

not make this showing in responding to the motion to dismiss.

See Plf. Mem. at 38-39. And it is difficult to see how such an

injunction can relieve plaintiffs of the emotional distress they

are likely to continue to suffer as a result of losing custody

of their children.31

31 In reaching this conclusion, I recognize that loss of parental

rights can harm an individual’s self-image, sense of self-worth,

and reputation, which is a discrete type of harm different from

the emotional distress caused by being separated from one’s

children. This type of harm is likely to be significant in most

(if not all) cases involving loss of parental rights, and it may

be especially painful for a person who has (or is perceived to

have) a mental or psychological disability. I also recognize

that this type of injury might well be relieved to a

considerable extent by the prospect of being able to help bring

about institutional reform of a state agency (not to mention

actually obtaining such relief), as plaintiffs seek to do here.

However, I conclude that even if this type of injury can be

relied on to establish standing to seek injunctive relief in the

nature of institutional reform, plaintiffs do not have standing

because developments at both the federal and state level since

As to the second possibility, plaintiffs have the burden of

alleging facts showing “a sufficient likelihood that [they] will

be affected by [DCF’s] allegedly unlawful conduct in the

future.” Holmes v. Patllito, No. 5:12-cv-183, 2012 WL 6623794,

at *2 (D. Vt. Nov. 28, 2012) (quoting Wooden v. Bd. Of Regents

of Univ. Sys. of Ga., 247 F.3d 1262, 1283 (11th Cir. 2001)),

adopted by 2012 WL 6623690 (D. Vt. Dec. 19, 2012). Plaintiffs

allege that they are currently caring for other children and

plan to try to have or adopt other children. Am. Compl. ¶ 88-

89. Accordingly, they argue, they “face the real risk that DCF

may investigate or take other action against them based on their

continued care and supervision of children.” Plf. Mem. at 38.

These allegations, accepted as true, are insufficient to

demonstrate the “substantial likelihood” of future injury

necessary for standing. In Lujan, the Supreme Court rejected an

attempt to establish standing based on future possibilities.

The Court stated: “Such ‘some day’ intentions, without any

description of concrete plans, or indeed even any specification

of when the some day will be - do not support a finding of the

‘actual or imminent injury’ that our cases require.” See 504

U.S. at 564. Similarly, the possibility that DCF may one day

this action was filed, summarized below, prevent them from

demonstrating that this case involves a “real need to exercise

the power of judicial review.” Summers, 555 U.S. at 493.

seek to take action against either or both plaintiffs is

necessarily conjectural rather than imminent.32

Plaintiffs do not attempt to distinguish their position

from the case on which defendants principally rely, City of Los

Angeles v. Lyons, 461 U.S. 95 (1983). Lyons alleged that a

police officer put him in a chokehold during a traffic stop, and

sought an injunction broadly prohibiting police from using

chokeholds. The Court concluded that Lyons’ allegations of past

misconduct “d[id] nothing to establish a real and immediate

threat that he would again be stopped for a traffic violation,

or for any other offense, by an officer or officers who would

illegally choke him into unconsciousness without any provocation

or resistance on his part.” Id. at 105. Moreover, Lyons’

allegation that the Los Angeles police “routinely appl[ied]

chokeholds . . . [fell] far short of the allegations that would

be necessary to establish a case or controversy between these

two parties.” Id.

32 Plaintiffs’ allegation that DCF might take action against them

is not unlike an allegation of a threat of future prosecution;

to adequately demonstrate such an injury, a plaintiff cannot

rely on a prosecution that is only “remotely possible.” Am.

Charities for Reasonable Fundraising Regulation, Inc. v.

Shiffrin, 205 F.3d 1321, at *1 (2d Cir. 2000). In American

Charities, the Second Circuit held that much more detailed

allegations than those presented here were insufficient to

plausibly allege a threat of future prosecution.

Unlike Lyons, plaintiffs have alleged that they may one day

undertake to have or adopt children, which could cause DCF to

take action. See id. at 106 n.7 (suggesting that Lyons needed

to “credibly allege that he faced a realistic threat from the

future application of the City’s policy”).33 However, as

defendants argue and as discussed above, plaintiffs’ allegation

that they plan to try to have or adopt children in the future is

inadequate under the standard set forth in Lujan.

Plaintiffs’ would have a stronger argument for standing if

they alleged facts permitting a finding that they are refraining

from trying to have or adopt children because they fear DCF will

take action against them in violation of their federal rights.

Even then, however, they would need to allege facts showing a

sufficient likelihood that DCF would act in violation of their

rights. Significant developments since this action was filed

prevent them from demonstrating such a sufficient likelihood.

In 2015, while the present action was on appeal, the U.S.

Departments of Justice and Health and Human Services published a

33 Lyons remains somewhat problematic for plaintiffs because the

amended complaint alleges that they currently care for children,

and there is no indication that DCF, although necessarily aware

of plaintiffs’ allegation, has engaged in any discriminatory

conduct against them. This is not to suggest that if DCF were

to find out in the future that Ms. Hasemann was expecting a

child or seeking to adopt one, it would take no action. For

purposes of this ruling, I assume that, at a minimum, DCF would

conduct an investigation.

joint letter stating that Title II of the ADA does apply to

programs of state child protection agencies.34 The letter has

been called “historic” and “ground-breaking.” Charisa Smith,

Making Good on an Historic Federal Precedent: Americans with

Disabilities Act (ADA) Claims and the Termination of Parental

Rights of Parents with Mental Disabilities, 18 Quinnipiac Health

L.J. 191, 192 (2015). HHS is now actively engaged with state

agencies regarding compliance with ADA standards in neglect and

TPR proceedings.35 State courts have also taken steps to ensure

that child protection proceedings comport with the ADA. See,

e.g., In re Hicks/Brown, 893 N.W.2d 637, 640-41 (Mich. 2017)

(holding that state agency had “duty under the ADA to reasonably

accommodate a [parent’s] disability” before terminating parental

rights).

34 See U.S. Dep’t of Justice, Civil Rights Division & U.S. Dep’t

of Health & Human Servs., Office for Civil Rights, Letter to

Erin Deveney, Interim Comm’r of Dep’t of Children & Families,

Commonwealth of Massachusetts (hereinafter “DOJ/HHS Letter”)

(Jan. 29, 2015), available at:

http://www.ada.gov/ma_docf_lof.pdf.

35 See, e.g., Press Release, HHS OCR Secures Voluntary Resolution

and Ensures Child Welfare Programs in the Oregon Department of

Human Services Protect Parents with Disabilities from

Discrimination, U.S. Dep’t of Health & Human Servs. (Dec. 4,

2019), available at:

https://www.hhs.gov/about/news/2019/12/04/hhs-ocr-secures-

voluntary-resolution-and-ensures-child-welfare-programs-in-the-

odhs-protect-parents-with-disabilities-from-discrimination.html.

In 2016, in keeping with the DOJ/HHS letter, then-

Commissioner Katz issued a memorandum stating: “Qualified

individuals with a disability in child protection matters are

entitled to individual assessments of their needs and full and

equal access to opportunities to benefit from and participate in

child welfare programs, services and activities that are equal

to those extended to persons without disabilities.”36 Other

publicly available documents issued by DCF described efforts to

help train service providers to assist persons with cognitive

limitations, and provided guidance to DCF caseworkers working

with parents with disabilities.37 In addition, the Connecticut

Supreme Court recently confirmed that the requirements of the

ADA are incorporated into Connecticut antidiscrimination law

36 See Memorandum from Joette Katz, Americans with Disabilities

Act, Conn. Dep’t of Children & Families (Sept. 23, 2016),

available at: https://portal.ct.gov/-

/media/DCF/Diversity/2016ADAPolicyNoticeSignedpdf.pdf (). See

also Nat. Res. Def. Council v. Dep’t of Interior, -- F. Supp. 3d

--, 2019 WL 4601722, at *9 (S.D.N.Y. 2019) (taking judicial

notice of publicly available government documents).

37 Joette Katz, Annual Progress and Services Report 2017, Conn.

Dep’t of Children & Families (June 30, 2016), available at:

https://portal.ct.gov/-/media/DCF/DataConnect/pdf/APSR-2017-

06302016--Final.pdf (noting that the Connecticut Parents with

Cognitive Limitations Work Group, headed by DCF, “has trained

close to 3,100 service providers through the work of an

interdisciplinary, interagency rotating training team.”); Conn.

Dep’t of Children & Families, Early Childhood Practice Guide for

Children Aged Zero to Five (April 1, 2016), at 39-43, available

at: https://portal.ct.gov/-/media/DCF/Policy/BPGuides/3-1-PG-

Early-Childhood.pdf (providing guidance to caseworkers on

assisting parents with disabilities).

applicable to neglect and TPR proceedings. See In re Elijah C.,

326 Conn. 480, 511 (2017) (“[T]here is nothing in the record

before us to suggest that the trial court deviated in any way

from ADA principles, which . . . are incorporated by reference

into our state’s own stringent antidiscrimination statutes, in

adjudicating the neglect and termination petitions in the

present case.”).

Plaintiffs argue that, “given the quick timing required in

child protections proceedings, DCF’s actions would evade review”

unless an injunction were already in place. Plf. Mem. at 39.

The concept of an injury “evading review” is an exception to the

mootness doctrine for injuries “too short to be fully litigated

prior to [their] cessation or expiration.” United States v.

Sanchez-Gomez, -- U.S. --, 138 S. Ct. 1532, 1540 (2018). The

exception does not apply here. Moreover, the possibility that

future plaintiffs – or these plaintiffs in the future – could

encounter an argument about mootness does not relieve plaintiffs

of their obligation to satisfy standing requirements. Cf.

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,

227 (1974) (“The assumption that if respondents have no standing

to sue, no one would have standing, is not a reason to find

standing.”).

Plaintiffs may be concerned that if they wait to request

injunctive relief until DCF invokes a 96-hour hold and seeks an

OTC, their request will be too late because, under the principle

of Younger v. Harris, 401 U.S. 37 (1971), the federal court will

have to abstain from interfering in what will then be an ongoing

state proceeding. See Sprint Communications, Inc. v. Jacobs,

571 U.S. 69, 72-73 (2013). This possibility does not confer

standing under Article III when the plaintiff’s allegations do

not support a finding that he or she faces an “imminent” injury,

as required by the Supreme Court. Accordingly, I conclude that

plaintiffs lack standing.

IV. Conclusion

For the foregoing reasons, defendants’ motion to dismiss

the amended complaint is hereby granted.

If plaintiffs believe they can further amend their

allegations to state a claim that is not precluded and on which

relief may be granted, they may file and serve a motion for

leave to amend on or before January 24, 2020. The motion must

be supported by a memorandum, with the proposed second amended

complaint attached as an exhibit. If no such motion is filed,

the amended complaint will be dismissed with prejudice and the

Clerk will enter judgment accordingly.

So ordered this 23rd day of December 2019.

/s/ RNC________________

Robert N. Chatigny

United States District Judge