who are have disabilities are perceived as disabilities me and force the e p a or the rehab act in the national court system and they've been prevented from doing so in the state courts and since the district of connecticut's dismissal decision rested in part perhaps i might start there this case is not irrelevant case for two very important reasons the st is that the injuries that the plaintiffs in plano were not generated by the state court judgment that the defendant litigation when you talk about their injuries benefiting their children isn't there and that's absolutely correct your honor there's no request and no illusion that any action in the national courts could restore their children to them they do not seek to displace that judgment superior court well mr barrett what are the damages that they seek to those damages not include the pain that emotional suffering from losing their children you're out of the damage because the injury to complain of is the failure to be given the access an opportunity to rehabilitation cation services damages limited to would injury determined it was worse for them to be cut off from the services well but but i mean what is i but that doesn't quite answer my question i these folks as far as i can tell and you can correct me if i'm wrong we're not seeking out services it's not like they went to a welfare agency and said please give us some help with parenting they were being required to engage in those services as a condition of not losing their parental rights yes that's right your honor so what you know could it is one of the items of the suffering and pain that stems from not getting the services the loss of the children that results or not kno i think in the context of this case that is is fairly off the table because the injury is simply the access and the opportunities the services event but then that that rip brings me back to my other question is are we talking about basically nominal damages or because again or the the insult to the dignitary harm of not having the right sort of reunification services for its own sake and of itself that's that's the key damage item here yes that's correct your honor and this court has passed upon those many times in the past for example partly pierces the report why examiners the dignity harmed for not having a my conceptual problem as i have a great deal of difficulty can even conceiving what you believe the accommodation in this context would be you have  two you know two and then later one dysfunctional parents you have a state whose obligation is to protect these newborns from   stent simply incompetent parents and the whole process was trying to get real with their disability counseling service  medication and are working with them all when they when they would miss appointments and weren't taking their medication and so forth and so on what is it that was supposed to have been going on that w in your view would look like an accommodation earlier we never got to form the district of connecticut but to give you two very quick examples of ms has meant for example was diagnosed a multiple times a severe  think so so then you hear for some federal court superintending in micromanaging this process which is you know not the kind of thing we usually do but they you know she should have been able to miss the recession's rather than turbo and she should've had psychotherapy five days a month rather than four that sort of thing well your honor to be fair th national court system looks at s s as a b a accommodation disputes all the time it's a range of not like this it doesn't we're out of the service is the rehabilitation in rediff occasions services we're looking at the out of court action so he's simply program in service provided by in this case the state of connecticut and it can be assessed just as with any other eighty eight days we're in this well could i it addresses that mr barrett i think i understand your point that the the in terms and maybe that means the court has to describe has to do more thinking about this but in terms of the facts in terms of the facts you're saying they did not deal adequately for example with the mother's narcolepsy isn't that fact something that they were able to raise in the state proceedings because doesn't that fact go to the question of whether the d c s did adequate efforts to reunite the family you were in fact some of these financial d issues were raised in state proceeding that if you look at the very you know the middle of a court decision revers the nd state court trial these connecticut supreme court was absolutely clear that there is only one way to resist use of noncompliance but wait wait wait wait no no no no no not issues of noncompliance the fact that is with adequate efforts to take into account the narcolepsy and other disabilities in connection with the reunification efforts is that fact something that you would be able to read litigate in the a b a case you state court that it was necessary for them to have these accommodations and they were denied and that undermined the requirement that the state  addition that the court of the superior who doesn't i'm so i'm not i'm not i'm going to make this try to make this very concrete if i'm fighting to keep my children and one of the requirements that the state has to prove in order to take away my children is that they made adequate efforts to reunify the family taking account of my disability in assessing what services needed to be provided why can't i argue that in light of my disability this particular thing was done badly and it should have been done differently and i should have gotten an accommodation what is there that prevents that from being raised i have to call it a da claim that maybe there is no way to make a counter claim that says i'm you know you're trying to my children i'm finally a counter claim that says you didn't comply with the a da you can't do that i understand parents filed this action pro se and so i don't have any answers to why they didn't do that but in terms of stripping it was a or film in the city court judgment did not cause their injuries right and no state court judgment required the to take an action contrary to the state court judge but if it's not rycroft feldman we still have to deal with the collateral estoppel possibilities it was there ever an effort by the plaintiffs to say that   nd and the state court said no that's wrong this is the state court said it is unclear what remedy is if in this case the mother was not attempting to assert the violations as a defense to the that is to say the state court was saying those concerns are not part of reasonable efforts there are something separate and apart in accordance with state love there to be enforced in a separate lawsuit i don't i don't know that at all that's not it that's that's quite different than what you just quoted your paraphrase is quite different the court says unless it's to be interpreted as an eighty eight dollars claim it's not successful because it does what was done satisfied the could possibly allege that were not available to you in the termination proceedings as an argument that the state's obligations were not complied with well your honor it's less  question which facts were available to this in the question of whether the form was available you know that the law is reclusion requires that the issue be fully and fairly litigated the parents here by operation of state law could not raise for example proposed accommodations and the medical services the counseling services and so forth and so on you know i want to get the right medication get me some different medication i didn't get enough for the right kind of counseling and on and on and on all of those issues could have been raised in state court your honor i think the gap between the two is that the in the the a d a s this is a different analysis that is to say what passes muster for reasonable efforts does not years to try to get your clients the services they require in view services it's whether for example when mrs housman who has a series of diagnoses that may lead you to believe that she has difficulty comprehending information was filled out of parenting education because she had whether the d c s accommodated the point of disability and providing their services and the standards under the two under the a d a s and the state terminations statute are the same in both cases the parents mental disability must be taken into account and it's a back specific case by case analysis that looks at the effectiveness of the particular accommodation modification that's being hundred and ninety three page opinion in which the court concluded by clear and convincing evidence that d c s had made reasonable efforts to reunify the parents with their children and in fact had done everything possible to assess the parent's disabilities and address them the court went on to note that it was in fact extraordinary some of the efforts that  it would effectively be related gating every issue in this case now the plaintiffs say that they they couldn't raise their eighty a claim but as i said under collateral it's the it's the same issue here it's the the issue is whether the the parents mental health mental disability were accommodated and that's precisely what the court was getting at and in fact even though even in is correct the courts did say that the idea is not a defense to a terminations proceeding but that does not mean that you cannot raise the accommodations and whether they were appropriate to  said raised it in the context of the idea and said we are not getting proper accommodations and the court looked at the issue and said the trikes presented evidence and made arguments and the court concluded that there was insufficient evidence of any additional services that should have been provided and ultimately concluded that the a b a was not violated and the plaintiffs have not been discriminated against now that decision was baited  not on the merits but because the underlying the glad decision was reversed on appeal which meant that the termination decision had to be had to be vacated but it's significant because it shows that there is not some inherent bar in the state court process the prevent someone from making these arguments that business rosenberg i think i understand that argument just want to be absolutely clear you're not vacated that has no conclusive effect but i think the significance of it is it demonstrates that there is nothing inherent in the state court system that prevents plaintiff parents from making these arguments  to do a more granular analysis and that this may not be something that can be dealt with at the pleading stage but when you have to look at exactly what the plaintiffs or alleging at a factual level you know what are they saying happened or didn't happen and then the question would be is that particular factual allegation claim assertion precluded by the state courts judgment i think both the individual facts and if the court wanted to it could look at the case fact by fact in the one hundred and ninety three page state decision and i think the court would see that all of the issues that the plaintiffs are trying to raise in a federal court were exhaustively let to get in the state court but in addition to the overall legal standard here is the same so i don't think the court even needs to get into the factual questions because as as a legal question the parents disabilities were accommodated here i think i would actually i think i think what as i read the plaintiff's briefs what they are suggesting is that the state's inquiry is whether taken as a whole the state made adequate efforts to reunify so that the state the c f was not precluded from establishing inadequacy global assessment that wasn't enough to defeat the d c s obligation to make adequate efforts to reunify but that in of itself is a violation of the a i think that's the plaintiff's position and so they will should be able to claim whatever damages in here and being refused that particular kemet accommodation on that particular day and in the state court your hon as part of the state court sort of the end of the state courts one thousand and thirteen page opinion what is conclusion was that everything possible was done in this case for these when it's so i would argue that to go back on if they were trying to get their children back if they had not mr back conceded that that is not the object of any of this litigation to be longer so if that's the case and they're they're was not just one order at the end of the proceeding next terminating parental rights but because terminations proceedings involve the constitutional right of the parents too much parent child relationship yes and what i was saying was each of these orders is considered a final judgment so things such as this visit patient orders are treated as final judgments that are appealable in the state court and the same with the specific steps i submitted supplemental authority on that to the court be in right just an f case in which the appellate court treated the a challenge to the specific steps that were provided to the parents in d c s as an appealable final judgment and the significance of that is that these specific steps lay out their court orders by the judge early on in the case at the order of term of temporary custody stage and which the judge lays out specifically what d c s and the parents are expected to do in order to achieve reification with the children so to the extent the  icker feldman would bore challenges to the specific steps orders a particular evaluators orders a particular visitation many of many of the issues  that the plaintiffs have raised are in fact caused by specific orders within the specific steps or from the court itself now i do concede it doesn't recur feldman does not get rid of the whole case but the collateral stoppel clearly does because the it would be it would require a whole series and extenuated series of of things that have to happen in a chain of causation so if the mother were able to adopt  or to become pregnant in her fifties and if she was with the same father and not somebody else because the whole situation would be different if there might if the perhaps there could be a different partner who might be very supportive you'd have a state's position on these cases per se or radically moving along parallel tracks i mean could that occur it could occur in the sense in this particular case in fact what happened was the appellant's the the plaintiffs went to our kinetic commission on human rights and opportunities and filed a claim there in the course of the proceedings that were ongoing in the state court and that commission looks at discrimination under state laws it's discriminatory state agencies such as the c f are prohibited from discriminating on the basis of disability and they must take the claims a c h r zero rejected them said they found no likelihood of discrimination here and then they provided the plaintiffs with information on how to appeal that decision which would have then gone to the to the state  superior court as a parallel proceeding the plaintiff did not pursue that option but that would have been open to them they could have gone to federal court i don't know what it would have happened to may have been some younger issues they're younger abstention problems but there's nothing that i know of that would would you know inherently include the so there was nothing preventing them from fully litigating that they do have issues with their counsel they kept having turnover because they would fire their counsel and then they try to choose several times and try to present these a presenting their issues trying to present them on their own without the help of counts well whether they were extreme is was it whether they were given a coordinator at trial take it is not an issue anymore and i write about that because that would be a verger feldman kind of issue i thought or at least i thought the argument was that the players were not raising anything about what happened in court or any denial of any rights by the court they're arguing having disabilities during that process yes part of the problem when they tried to raise their their requests for accommodations under the idea in state court was that they each time they did so they  denied that they had any disability which then caused the court to say what what should i be doing here if you aren't claiming any disability or offering no proof of incompetency  so again it was an issue with the way the plaintiffs were trying to present their arguments it was certainly the best argument ever change the i'm not disabled argument was that the position they maintained throughout the litigation yes i believe that the they maintained it right from the very beginning and then at the rd and final terminations trial of the man they were still maintaining that they had no disability because  they raised the issue at the beginning of that trial and the judge keller questioned them and said can you explain to me what the issue at that point they wanted someone and in the trial to sit in a courtroom and and she questioned them and said well what what is the disability what do you need accommodated and they said we have no disability so yes you're on it throughout they took the same position that they were not disabled if it's a good point to which to employer says you know i think you're retarded i'm not going to hire you that's a perceived disability even if it isn't true and the job was denied on the basis receive disability how do you accommodate a disability that does not exist your honor the question i think that well you have to examine under the a t f what you would do is say st of all do we have a person whose condition limits their daily life activity is right this is this what we eight case that's absent from the superior court decision relied upon by the defendant so i think a st step would be that even if the plaintiffs for purposes of state court litigation disclaimed a disability because you must remember that the petition for predictive neglect lodged against them identified these deficiencies as the reason why they should not be parents yes but when we couldn't see more in their heads it wasn't like you know they had difficulty walking or difficulty you know manipulate the computer or something like that these were definite issues that were were in their heads and were manifested by their behavior and once you get once once their existence is denied like your clients do association with the disabled person so there's an additional level as to beyond what accommodation was due him whether or not he was discriminated against divorced from his status as having a disability can i raise a question as we haven't reached the you know which was to tailor any service to their to so why have so exactly so what after june of two thousand and eleven did they fail to do because many of the things that you've cited so far seem to me to have taken place back in two thousand and seven or thereabouts so i want to know what is alleged in the complaint that happened after june two thousand and eleven that even assuming it continued there are so many continuing obligation that would bring up all the old things or just as a standalone violation after two thousand and eleven what happened then that was a failure rather it was it was a repeat of offering the same garden variety services that were not tailored in you know manner to accommodate their disabilities so effectively what the state proposes was let's retry these things that we feel you out of again and again and unsurprisingly that that does not satisfy you well wait wait but what actually happened the day they instituted some program and that in that program there was a failure to accommodate you don't think that it's the same program but your whole point is that program needs to be tailored in particular so what is the failure of tailoring that happened after two thousand and eleven that is visible on the face of the complaint well you are not as clear in the complaint was the methods of the services that were offered in the methods of evaluation and so you'll see in the secure court decision that seems she fell asleep that's something that happened not in two thousand and eleven correct those three or so what is sleep what do you have that's comparable you know in level of specificity after two thousand and eleven service referrals your honor the one who has to allege an eighty a violation that takes place within the statute of limitations so i'm trying to identify what exactly is it that is the accommodation that didn't happen or the failure where  the exclusion of them from a service in that period right your honor it's the failure to provide a different range of services these that were tailored to their disabilities so i'm not sure how we were up with that look like i mean i got just trying understand what exactly it is that is the failure here sure so so your honor if you were to ask me what kinds of assistance might have been offered for example one on one coaching with someone who dealt with a very disability that at the state alleged my clients to have for example a parent age who could be in the home and assist and teach how to parent taking into a comedy taking into account the disability there are a range of of accommodations that could have been made but they weren't they weren't even addressed why were their clients disabled for purposes of the idea yes or not or they haven't and you'll