[NFBWATLK] {Spam?} FW: [blindlaw] ABA Adopts a Resolution Calling Upon States to Adopt non-discriminatory Provisions Regarding the Right of Persons With Disabilities to Parent
Nightingale, Noel
Noel.Nightingale at ed.gov
Wed Feb 8 00:56:09 UTC 2017
-----Original Message-----
From: BlindLaw [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of Scott C. Labarre via BlindLaw
Sent: Monday, February 06, 2017 2:05 PM
To: 'Disability Rights Bar Association'; 'Blind Law Mailing List'
Cc: Scott C. Labarre
Subject: [blindlaw] ABA Adopts a Resolution Calling Upon States to Adopt non-discriminatory Provisions Regarding the Right of Persons With Disabilities to Parent
Friends, today the ABA House of Delegates, the ABA's supreme policy making
body, adopted unanimously Resolution 114. I had the honor and privilege of
rising and speaking in favor of the resolution. The Resolution and its
report are set-forth below and attached.
Best,
Scott
AMERICAN BAR ASSOCIATION
COMMISSION ON DISABILITY RIGHTS
SECTION OF CIVIL RIGHTS AND SOCIAL JUSTICE
SECTION OF FAMILY LAW
COMMISSION ON YOUTH AT RISK
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION 114
RESOLVED, That the American Bar Association urges all federal, state,
territorial, and tribal governments to enact legislation and implement
public policy providing that custody, visitation, and access shall not be
denied or restricted, nor shall a child be removed or parental rights be
terminated, based on a parent's disability, absent a showing-supported by
clear and convincing evidence-that the disability is causally related to a
harm or an imminent risk of harm to the child that cannot be alleviated with
appropriate services, supports, and other reasonable modifications.
FURTHER RESOLVED, That the American Bar Association urges all federal,
state, territorial, and tribal governments to enact legislation and
implement public policy providing that a prospective parent's disability
shall not be a bar to adoption or foster care when the adoption or foster
care placement is determined to be in the best interest of the child.
REPORT
I. Introduction
The U.S. Supreme Court has long recognized that the fundamental right of
parents to make decisions concerning the care, custody,[1] and control of
their children is protected under the Due Process Clause of the Fourteenth
Amendment.[2] Nevertheless, people with disabilities have been, and continue
to be, denied full enjoyment of this right based on discriminatory
assumptions, generalizations, biases, stereotypes or misconceptions about
disabilities and the ability to parent, instead of individualized
determinations supported by objective evidence. The individuals most likely
to report a parent with a disability to a child welfare agency are
neighbors, family members, and medical personnel, frequently based on a
belief that a parent with a disability cannot be a safe parent. [3] These
reports start the family's dependency proceedings and often lead to
termination of parental rights. Co-parents or extended family members
sometimes move for custody solely on the basis of the custodial parent's
disability.[4] Social workers, officers of the court, child welfare and
health care workers, adoption and foster care personnel, and other
professionals are not immune from these biases.[5] As a result, many parents
with disabilities lose custody of their children, and prospective parents
with disabilities are denied the right to foster or adopt children.
Many parents with disabilities are denied access to appropriate family-based
services, supports, and other reasonable modifications that would provide
them with a full and equal opportunity to keep or reunify with their child.
This denial is often based on the presumption that, because of their
disabilities, parents are unable to benefit from these services and
supports. Parents with disabilities may need adaptive equipment to maintain,
increase, or strengthen their parenting capabilities, such as a changing
table modified to allow a wheelchair user to roll the wheelchair beneath the
surface, or an alarm or prompting system to remind a parent with an
intellectual disability to give a child medication.[6] They may also need
accommodations and adapted services, such as an interpreter at a parenting
class for a deaf parent, or more frequent and longer parenting sessions with
some work inside the family's home for a parent with a developmental
disability.[7]
Twenty-six years ago, Congress enacted the Americans with Disabilities Act
(ADA) "to provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities."[8]
Congress recognized "that physical and mental disabilities in no way
diminish a person's right to fully participate in all aspects of society,
yet many people with physical or mental disabilities have been precluded
from doing so because of discrimination."[9] Accordingly, Congress found
that "the Nation's proper goals regarding individuals with disabilities are
to assure equality of opportunity, full participation, independent living,
and economic self-sufficiency"[10] and that "the continuing existence of
unfair and unnecessary discrimination and prejudice denies people with
disabilities the opportunity to compete on an equal basis and to pursue
those opportunities for which our free society is justifiably famous."[11]
Title II of the ADA prohibits a public entity from excluding persons, by
reason of their disabilities, from participating in services, programs, or
activities, and from denying them the benefits of these services, programs,
or activities.[12]
II. Need for Resolution
It is estimated that in the United States there are at least 4.1 million
parents with disabilities who have minor children, representing
approximately 6.2 percent of the parenting population.[13] Also,
approximately 6.1 million children under the age of 18 (nearly one in 10)
have a parent with a disability.[14] At least 19 percent of children in
foster care have a parent with a disability.[15]
Many parents with disabilities encounter significant discrimination in child
custody litigation occurring in family, probate, and dependency courts.
Although no national study has identified the total number of parents with
disabilities who have been involved in the child welfare system, the
National Center on Parents with Disabilities and their Families, analyzing
data from 19 states, found that 12.9 percent of children removed by child
welfare had a caregiver with a disability.[16]
Research has consistently revealed significantly heightened levels of child
welfare system involvement and loss of children for this parenting
population. Multiple studies have revealed that 30 to 50 percent of parents
with intellectual developmental disabilities lose custody of their
children.[17] Also, one study found that mothers with serious mental illness
are three times as likely as those without serious mental illness to have
had involvement with the child welfare system or to have children who had an
out-of-home placement.[18] According to several studies, as many as 70 to 80
percent of parents with a psychiatric disability have lost custody.[19] The
blind and deaf communities also report heightened rates of child removal and
loss of parental rights.[20] In a study of more than 1,200 parents with
predominantly physical disabilities, 12.6 percent reported experiencing
discriminatory treatment related to custody litigation.[21] Persons with
disabilities who seek to become foster or adoptive parents also encounter
barriers based on biases and stereotypes about their parenting
abilities.[22]
Removing a child from their parents, whether in the dependency or family law
context, is devastating and traumatizing for all involved. In fact, a secure
attachment to a sensitive, responsive, and reliable caregiver is the most
significant issue for a child's development.[23] Researchers in the fields
of psychology and cognitive science have documented the severe emotional and
psychological damage experienced by infants and young children when they are
separated from their primary caregivers.[24] They go through various
emotional phases: first, protesting and doing everything possible to try to
get back to the caregiver; next, despair due to the child's fears of not
being reunited with the caregiver; and finally, detachment as the child
gives up hope, with many children losing hope of ever having that security
and love again.[25]
As to long-term effects, children who are separated from caregivers have an
increased risk of conduct disturbances, disruptive behavioral problems, and
attention and mood disorders.[26] They are less able to cope with
psychological trauma, self-regulate their behavior, handle social
interactions, and build positive self-esteem and self-reliance.[27]
Children who are placed in foster care are two times more likely to die of
abuse, two to four times more likely to be sexually abused, and three times
more likely to be physically abused than children not placed in foster
care.[28]
In 2012, the National Council on Disability (NCD) published a comprehensive
report, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities
and Their Children, detailing the "persistent, systemic, and pervasive
discrimination" against parents and prospective parents with disabilities
within the child welfare and family law systems.[29] Four years later, NCD
and the Christopher & Dana Reeve Foundation jointly published Parenting with
a Disability: Know Your Rights Toolkit to protect both parents and
prospective parents with disabilities from discrimination by providing them
with information about their legal rights with respect to custody,
visitation,[30] access,[31] adoption, family law, and the child welfare
system.[32]
The release of Rocking the Cradle marked the first time the federal
government focused attention on parents with disabilities and their
children, and it set in motion a surge of activity by federal agencies to
address issues facing these families. In January 2015, the U.S. Department
of Health and Human Services (HHS) and the U.S. Department of Justice (DOJ)
issued a joint letter of findings following an investigation of the
Massachusetts Department of Children and Families' (DCF) handling of a case
involving a 21-year-old mother with an intellectual disability.[33]
The agencies found that DCF violated Title II and Section 504 by: (1)
acting based on assumptions about the mother's ability to care for her
daughter, instead of conducting an individualized assessment of the mother's
needs; (2) failing to provide the mother with supports and services in
support of reunification; (3) refusing to recognize her continued engagement
and progress; and (4) failing to develop and implement appropriate policies
and practices concerning the agency's legal obligations vis-à-vis disability
civil rights laws. Title II of the ADA[34] and Section 504 of the
Rehabilitation Act[35] seek to ensure parents with disabilities are free
from discrimination in the provision of services, programs, and activities
of child welfare agencies. This includes a prohibition on making child
custody decisions on the basis of generalized assumptions about disability,
relegating parents with disabilities to lesser services and opportunities,
imposing overprotective or unnecessarily restrictive rules, and failing to
reasonably modify policies, practices, and procedures.[36]
Seven months later, in August 2015, HHS and DOJ issued joint technical
assistance to state and local child welfare agencies and courts "to help
ensure that parents and prospective parents with disabilities are not
discriminatorily deprived of custody of their children, or denied the
opportunity to adopt or serve as foster parents, because of stereotypes and
unfounded assumptions about persons with disabilities, which we have seen in
our complaints."[37] The assistance was developed in response to the rising
number of disability discrimination complaints from parents with
disabilities who have had their children taken away, their visitation and
access rights restricted, or who have been denied reasonable accommodations,
as well as from prospective parents with disabilities who have not been
given equal opportunities to become foster or adoptive parents.
In December 2015, HHS' Office for Civil Rights (OCR) entered into a
settlement agreement with the Georgia Department of Human Services' (DHS)
Division of Family and Children Services (DFCS) following OCR's
investigation of a complaint alleging that DFCS discriminated against the
complainant by denying her application to become a Foster-Adopt parent based
on her disabilities.[38] OCR determined that DHS violated Title II and
Section 504 by: improperly using disability as a criterion to make placement
decisions, instead of making an individualized assessment of the
complainant's ability to be a Foster-Adopt parent; treating her differently
on the basis of disability in determining whether she could adequately
parent; affording her different opportunities on the basis of disability;
failing to consider whether supportive services offered to other foster
parents would have addressed the agency's concerns and allowed the
complainant to participate in the program; and failing to make reasonable
modifications to its policies, practices, and procedures. As part of the
settlement, DHS and DFCS agreed, among other things, to: designate a
qualified staff person for each DFCS region to serve as the ADA/Section 504
Coordinator; submit to OCR for its review and approval a foster care policy
that includes language regarding reasonable modifications for qualified
individuals with disabilities who request a reasonable
accommodation/modification; and submit to OCR standard operating procedures
for documenting and assessing DFCS foster care and adoption program
applicants and participants with disabilities.[39]
III. ABA POLICY
The American Bar Association (ABA) has an extensive record of opposing
discrimination in the context of family and child welfare law, wholly
irrespective of an individual's parenting abilities and the well-being of
the child. In August 1995, the ABA adopted policy supporting the enactment
of legislation and implementation of public policy that would ensure that
child custody or visitation is not denied or restricted on the basis of a
parent's sexual orientation.[40] In February 1999, the ABA supported "the
enactment of laws and implementation of public policy that provide that
sexual orientation shall not be a bar to adoption when the adoption is
determined to be in the best interest of the child."[41] The ABA adopted a
policy in August 2003 supporting state laws and court decisions permitting
second-parent adoptions by same-sex and other unmarried couples when such
adoptions are in the best interest of the child.[42] In February 2006, the
ABA "opposed legislation and policies that prohibit, limit, or restrict
placement into foster care of any child on the basis of the sexual
orientation of the proposed foster parent when such foster care placement is
otherwise appropriate under the applicable law of the state, territory, or
tribe."[43]
Addressing racial disparities in the child welfare system, the ABA adopted a
policy in 2008 urging:
State, local, territorial and tribal child welfare agencies, dependency
courts and judges, and children's and parents' advocates to help racial and
ethnic minority families readily access needed services and to help ensure
that removal of children from their homes is based on objective child safety
criteria so that all families in the child welfare system are treated fairly
and equitably.[44]
The proposed resolution would build upon this record by protecting parents
and prospective parents from unlawful discrimination on the basis of
disability in child welfare, family law, adoption, and foster care
proceedings, and safeguarding the best interest of the child. Rather than
relying on stereotypical assumptions about disabilities, this recommendation
requires use of a nondiscriminatory, evidence-based standard to evaluate
parental fitness and best interest of the child. Specifically, in order for
a disability to constitute a reason for denial or restriction of custody,
visitation or access, removal of the child, or termination of parental
rights, there must be a showing-supported by clear and convincing
evidence-that the disability is causally related to an alleged significant
harm or an imminent risk of harm to the child that cannot be alleviated with
appropriate services, supports, and other reasonable modifications.
A clear and convincing evidence standard is appropriate in dependency and
family law cases. The standard of proof in cases involving individual
rights, whether criminal or civil, "reflects the value society places on
individual liberty."[45] The U.S. Supreme Court has mandated a clear and
convincing evidence standard when the individual interests at stake in a
state proceeding are both "particularly important" and "more substantial
than mere loss of money."[46] As previously discussed, the fundamental
liberty interest of parents to make decisions concerning the care, custody,
and control of their children is protected by the Fourteenth Amendment.
Removals of children, whether in the family law or dependency context,
threaten parents with a significant deprivation of liberty, and have a
devastating and traumatizing effect on parents and children.
The U.S. Supreme Court has ruled that the clear and convincing standard-not
the preponderance of the evidence standard-applies in parental rights
termination proceedings.[47] The state's parens patriae interest favors
preservation, not severance of natural familial bonds.[48] Because the
possible injury to the parent is significantly greater than any possible
harm to the state, the parent should not be asked to share equally with
society the risk of error.[49]
IV. The Law and its application
A. Child Welfare and Public Adoptions
(i) State Law
Child welfare agencies are systems of "services designed to promote the
well-being of children by ensuring safety, achieving permanency, and
strengthening families to care for their children successfully."[50] The
states are primarily responsible for the system, despite federal funding,
and cases in these systems are governed by state law. However, these laws
must not run afoul of constitutional and federal laws. The freedom to parent
without interference from the state is protected by the Fourteenth
Amendment.[51] This right is balanced against the right of the state to
protect its children from harm.[52]
When a state child welfare agency believes that a child is abused or
neglected, it may seek to take custody of the child. A dependency court can
grant the request, remove the child, order the agency to find appropriate
placements, provide reunification services, and ultimately terminate
parental rights. In termination of parental rights proceedings, most states
require a court to find: (1) by preponderance of the evidence, that
reunification efforts were reasonable; (2) by clear and convincing evidence,
that the parent is unfit;[53] and (3) that severing the parent-child
relationship is in the child's best interest. Each state is responsible for
establishing its own statutory grounds for termination, and these vary by
state. Remarkably, roughly two-thirds of dependency statutes (35 states and
the District of Columbia) include disability-mostly
intellectual/developmental and psychiatric-as a factor for terminating
parental rights if the state perceives the disability renders the parent
unable to care for the child.[54]
Child welfare statutes in seven states[55] allow child welfare agencies to
bypass reasonable efforts to provide family support services to parents with
disabilities-designed to prevent out-of-home placement of the child or to
enable the child's safe return to the home (also called reunification
services). This occurs when the parent's mental illness, mental deficiency,
mental or emotional condition, intellectual disability, or developmental
disability renders him or her incapable of utilizing the services, or of
caring for the child without placing him or her at substantial risk of
physical or emotional injury, even if appropriate and available services
were provided for twelve months.[56]
(ii) Federal Law - ADA & Section 504
Title II of the ADA provides that "no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by such entity."[57] Title II
applies to the services, programs, and activities of all state and local
governments, including child welfare agencies and court systems.[58] The
"services, programs, and activities" include, but are not limited to,
investigations, witness interviews, assessments, provision of in-home
services, removal of children from their homes, case planning and service
planning, visitation, guardianship, adoption, foster care, reunification
services, and family court proceedings.[59] "Services, programs, and
activities" also extend to child welfare and custody hearings, as well as to
proceedings to terminate parental rights.[60] Private entities involved in
the child welfare system may also be independently covered by Title III of
the ADA, which prohibits any public accommodation from discriminating
against people with disabilities by denying access to goods and
services.[61] "Adoption agency" is included in the list of public
accommodations.[62]
Section 504 of the Rehabilitation Act provides that "no qualified individual
with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities of any entity that receives Federal financial assistance, or be
subjected to discrimination by such entity."[63] Federal financial
assistance includes assistance provided to child welfare agencies and the
courts.[64]
Individualized treatment and full and equal opportunity are fundamental to
both Title II and Section 504. Persons with disabilities must be treated on
a case-by-case basis consistent with facts and objective evidence, and not
on the basis of generalizations or stereotypes.[65] In their joint technical
assistance, HHS and DOJ state that prohibited treatment would include
removing a child from a parent with a disability based on the stereotypical
belief-unsupported by an individual assessment-that people with disabilities
are incapable of safely parenting their children, and denying a person with
a disability the opportunity to become a foster or adoptive parent based on
stereotypical beliefs about how the disability may affect the individual's
ability to parent.[66]
* Reasonable Modification
Under Title II and Section 504, child welfare agencies and courts must make
reasonable modifications to policies, practices, and procedures to
accommodate the individual needs of a qualified person with a disability,
unless doing so would result in a fundamental alteration to the nature of
the service, program, or activity.[67] For instance, a child welfare agency
that holds a parenting skills class once a week may need to modify the
training to allow more frequent, longer, or more meaningful trainings for a
parent who requires individualized assistance in learning new skills because
of his or her disability.[68]
* Auxiliary Aids & Services
Both child welfare agencies and courts are required to provide appropriate
auxiliary aids and services, such as qualified sign language interpreters,
assistive listening devices and systems, captioning, and large print or
Braille materials, where necessary to ensure that individuals with
disabilities can communicate as effectively as those without
disabilities.[69] For example, a qualified sign language interpreter may be
necessary for home visits or assessments, while real-time captioning may be
appropriate for family team meetings or in court.[70] Child welfare agencies
and courts must give primary consideration to the auxiliary aid or service
requested by the person.[71] If provision of the requested aid or service
would result in a fundamental alteration in the nature of the service,
program, or activity or in undue financial and administrative burdens, aids
or services that do not result in any alteration or burdens must be provided
to the maximum extent possible.[72]
* Equal Opportunity
Persons with disabilities must be afforded an opportunity to benefit from
and participate in child welfare programs, services, and activities that is
equal to the opportunity afforded to individuals without disabilities.[73]
This may require providing auxiliary aids and services or making reasonable
modifications to policies, practices, and procedures in child welfare
proceedings. Child welfare agencies may be required under Title II and
Section 504 to arrange for available services from outside sources, such as
social service agencies and disability organizations, as a reasonable
modification so long as doing so would not constitute a fundamental
alteration.[74] In situations where providing the same services and
resources to an individual with a disability that are provided to
individuals without disabilities does not provide an equal opportunity to
the individual with a disability, Title II and Section 504 may require
agencies to provide additional, individually tailored services.[75] For
instance, in parental trainings agencies may need to incorporate visual
modeling or other individualized techniques for persons with
disabilities.[76]
* Direct Threat to Safety & Health
Child welfare agencies have an obligation to ensure the health and safety of
children. Neither the ADA nor Section 504 cover individuals with
disabilities who pose a direct threat to the health or safety of others.[77]
Direct threat means a significant risk to the health or safety of others
that cannot be eliminated by a modification of policies, practices, or
procedures, or by the provision of auxiliary aids or services.[78] In some
cases, a parent or prospective parent with a disability may pose a
significant risk to the health or safety of the child.[79] In making this
determination, child welfare agencies and courts 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.[80]
Despite these federal protections, state dependency courts have
overwhelmingly resisted ADA defenses in termination of parental rights
proceedings.[81] Hence, "[t]he case law concerning the ADA and parental
rights has overwhelmingly favored states and rejected the claims of parents
with disabilities.[82] Some courts have refused to apply the ADA, based on
the finding that termination of parental rights proceedings are not a
"service, program, or activity" within the meaning of the ADA.[83] Other
courts have found that the ADA does not apply in these cases because the
court's jurisdiction is limited to interpreting the state child welfare law
(i.e., determining the best interest of the child or reasonable efforts)
rather than conducting "an open-ended inquiry into how the parents might
respond to alternative services and why those services have not been
provided."[84] Lastly, several courts have determined that the ADA provides
no defense to termination of parental rights proceedings because Title II
requires only affirmative action on the part of the injured party rather
than defenses against a legal action by a public entity.[85]
In October 2006, a certiorari petition was filed in the U.S. Supreme Court
seeking review of a Rhode Island court's decision that a termination of
parental rights proceeding "does not constitute the sort of service, program
or activity that would be governed by the dictates of the ADA."[86]
Unfortunately, the petition was denied, and to date the U.S. Supreme Court
has declined to rule on the applications of the ADA in these cases.
However, ADA claims have been successful when rooted in the parent's claim
of inadequate services by a child welfare agency.[87] An agency that does
not make reasonable modifications for a parent with a disability fails to
fulfill its duty to make reasonable efforts towards reunification.[88] Such
a failure delays initiation of termination of parental rights proceedings
and allows the parent additional time to complete the case plan.[89] For
instance, the Michigan Court of Appeals vacated a circuit court's order
terminating the parental rights of a mother with cognitive disabilities to
her two minor children, and remanded for reconsideration following the
provision of necessary accommodated services.[90] The Department of Health
and Human Services' case plan did not include reasonable accommodations to
provide the mother with a meaningful opportunity to benefit. Absent
accommodations, the court found that the child welfare agency failed in its
statutory duty to make reasonable efforts to reunify the family unit.
(iii) Adoption and Safe Families Act (ASFA)
Pursuant to the Adoption and Safe Families Act of 1997 (ASFA),[91] states
must provide preventive services before terminating parental rights.[92]
When designing a case plan, caseworkers should adapt a "functional"
perspective to identify the parent's skills and deficits and to tailor
services.[93] The agency must make reasonable efforts to provide high
quality, individualized case services that fit the parent's needs and
abilities.[94] There are limited circumstances where an agency is not
required to make reasonable efforts, including "aggravating circumstances"
such as chronic abuse, sexual abuse, or causing serious bodily injury to the
child, or if the parent has committed murder, voluntary manslaughter, or
felony assault of a sibling of the child, or if a parent's rights to a
sibling have been terminated.[95] The proposed resolution is consistent with
the ASFA in that it recognizes and does not limit the right of the state to
protect children from neglect and abuse.
B. Custody and Visitation/Access
When parents are unable to reach a custody or visitation agreement, family
law courts are left to decide. Family law cases are governed by individual
state statutes relying on the "best interest of the child" standard. The
ultimate goal is to meet the child's physical, emotional, intellectual, and
basic health and safety needs. Most states have developed their own factors
to determine which custody arrangement is in the best interest of the child.
Typical factors include: (1) which parent best meets the physical,
emotional, and intellectual needs of the child and will preserve his or her
health and safety; (2) what the child wants (if the child is mature and has
a preference); (3) who has been the primary caretaker; (4) which parent is
more likely to promote the child's contact or relationship with the other
parent; (5) whether there is any history of domestic violence or substance
abuse; (6) whether there is evidence that either parent has lied to the
court; and (7) what the duration and quality of the current custody
arrangement is.[96] Particularly noteworthy, all states allow-and a number
mandate-consideration of a parent's physical and mental health.
To date, only a handful of state statutes expressly prohibit denial of
custody or visitation solely on the basis of a parent's disability. For
example, Idaho law provides that where the court finds a parent's disability
to be relevant to a custody award, the court must "make specific findings
concerning the disability and what effect, if any, the court finds the
disability has on the best interest of the child."[97] Particularly
noteworthy, the court must advise a parent with a disability that he or she
has "the right to provide evidence and information regarding the manner in
which the use of adaptive equipment or supportive services will enable the
parent to carry out the responsibilities of parenting the child." Further,
parental fitness evaluations must "take into account the use of adaptive
equipment and supportive services for parents with disabilities" and "be
conducted by, or with the assistance of, a person who has expertise
concerning such equipment and services."[98]
Maryland law provides that in custody or visitation proceedings, a party's
disability is relevant only to the extent that the court finds, based on
evidence in the record, that the disability affects the best interest of the
child.[99] The party alleging that the disability affects the best interest
of the child bears the burden of proof.[100] If the burden of proof is met,
the party who has a disability has the opportunity to prove that supportive
parenting services would prevent a finding that the disability affects the
best interest of the child.[101] If a court finds that the party's
disability affects the best interest of the child and therefore denies or
limits custody or visitation, it must specifically state in writing the
basis for the finding[102] and why the provision of supportive parenting
services is not a reasonable accommodation to prevent the finding.[103]
Oregon law provides that the court may not consider a party's disability in
determining custody unless it finds that behaviors or limitations related to
the party's disability are endangering or will likely endanger the health,
safety, or welfare of the child.[104] In Tennessee, "[t]he disability of a
parent seeking custody shall not create a presumption for or against
awarding custody to such a party but may be a factor to be considered by the
court."[105]
V. CONCLUSION
The proposed recommendation would build upon the handful of state laws and
the federal policies that shift the focus from a parent or prospective
parent's disability to a parent's behavior or conduct. It would do so by
requiring a showing, by clear and convincing evidence, of a causal nexus
between the disability and a harm or an imminent risk of harm to the child
that cannot be alleviated with appropriate services and supports and other
reasonable modifications. This would raise consciousness to and remedy the
unspoken presumption that a parent with a disability is not a fit parent, or
has the burden to prove fitness that parents without disabilities are not
required to meet.
Twenty-six years after the enactment of the ADA, it is time to ensure that
individuals with disabilities and their children have a right to live free
from discriminatory state actions that can result in traumatic separations
of parents and their children. The ADA generation, who have grown up
assuming a right to live in the world,[106] have new expectations: that they
will be able to exercise their fundamental right to make decisions
concerning the care, custody, and control of their children subject to the
same legal limitations and interventions on the same grounds as all other
American citizens. While nothing in this proposal will limit the right of
the state to protect abused or neglected children, it will help ensure that
decision-making is driven by child-centered devotion to their well-being and
the law, not the disability biases or assumptions of another era.
Respectfully submitted,
Robert T. Gonzales, Chair
Commission on Disability Rights
February 2017
GENERAL INFORMATION FORM
Submitting Entity: Commission on Disability Rights
Submitted By: Robert T. Gonzales, Chair, Commission on Disability Rights
1. Summary of Resolution(s).
This resolution urges federal, state, territorial, and tribal governments to
enact legislation and implement public policy providing that custody,
visitation, and access shall not be denied or restricted, nor shall a child
be removed or parental rights terminated, based on a parent's disability,
absent a showing-supported by clear and convincing evidence-that the
disability is causally related to a harm or an imminent risk of harm to the
child that cannot be alleviated with appropriate services, supports, and
other reasonable modifications. This resolution further urges all federal,
state, territorial, and tribal governments to enact legislation and
implement public policy providing that a prospective parent's disability
shall not be a bar to adoption or foster care when the adoption or foster
care placement is determined to be in the best interest of the child.
2. Approval by Submitting Entity.
The Commission on Disability Rights approved the resolution by vote on
November 15, 2016.
3. Has this or a similar resolution been submitted to the House or
Board previously? Yes: ABA Resolution 95A107; ABA Resolution 99M109(b); ABA
Resolution 03A112; ABA Resolution 06M102; ABA Resolution 08A107.
4. What existing Association policies are relevant to this Resolution
and how would they be affected by its adoption?
In August 1995, the ABA adopted policy supporting the enactment of
legislation and implementation of public policy that would ensure that child
custody or visitation is not denied or restricted on the basis of a parent's
sexual orientation. (ABA Resolution 95A107). In February 1999, the ABA
supported "the enactment of laws and implementation of public policy that
provide that sexual orientation shall not be a bar to adoption when the
adoption is determined to be in the best interest of the child." (ABA
Resolution 99M109(b)). The ABA adopted a policy in August 2003 supporting
state laws and court decisions permitting second-parent adoptions by
same-sex and other unmarried couples when such adoptions are in the best
interest of the child. (ABA Resolution 03A112). In February 2006, the ABA
"opposed legislation and policies that prohibit, limit, or restrict
placement into foster care of any child on the basis of the sexual
orientation of the proposed foster parent when such foster care placement is
otherwise appropriate under the applicable law of the state, territory, or
tribe." (ABA Resolution 06M102). Finally, addressing racial disparities in
the child welfare system, the ABA adopted a policy in 2008 urging:
State, local, territorial and tribal child welfare agencies, dependency
courts and judges, and children's and parents' advocates to help racial and
ethnic minority families readily access needed services and to help ensure
that removal of children from their homes is based on objective child safety
criteria so that all families in the child welfare system are treated fairly
and equitably. (ABA Resolution 08A107).
Although these policies would not be affected by adoption of this
resolution, the ABA's policies of non-discrimination in family law and child
welfare cases based on sexual orientation, race, and ethnicity would be
expanded to include disability.
5. If this is a late report, what urgency exists which requires action
at this meeting of the House?
N/A
6. Status of Legislation. (If applicable)
Only a handful of state statutes, including Idaho, Maryland, Oregon, and
Tennessee, expressly prohibit denial of custody or visitation solely on the
basis of a parent's disability. There is currently no pending legislation.
7. Brief explanation regarding plans for implementation of the policy,
if adopted by the House of Delegates.
Adoption of this policy will enable the Association to urge federal, state,
territorial, and tribal governments to enact legislation and implement
public policy that prohibits discrimination against parents and prospective
parents in family law and child welfare cases based solely on their
disability status.
8. Cost to the Association. (Both direct and indirect costs)
None
9. Disclosure of Interest. (If applicable)
N/A
10. Referrals.
Section of Family Law
Section of Civil Rights and Social Justice
Judicial Division
Solo, Small Firm and General Practice Division
Young Lawyers Division
Commission on Youth at Risk
Center on Children and the Law
11. Contact Name and Address Information. (Prior to the meeting. Please
include name, address, telephone number and e-mail address)
Commission on Disability Rights
Amy L. Allbright
1050 Connecticut Avenue, NW Suite 400
Washington, DC 20036
(202) 662-1575
amy.allbright at americanbar.org <mailto:amy.allbright at americanbar.org>
12. Contact Name and Address Information. (Who will present the report to
the House? Please include name, address, telephone number, cell phone number
and e-mail address.)
Commission on Disability Rights:
Robert T. Gonzales
Law Offices of Hylton & Gonzales
201 N. Charles Street, Suite 2200
Baltimore, MD 21201-4126
(410) 547-0900
(443) 956-1838 (cell)
r.gonzales at hyltongonzales.com <mailto:r.gonzales at hyltongonzales.com>
Section of Family Law
Anita M. Ventrelli
Schiller DuCanto and Fleck LLP
200 N. Lasalle St.
30th Floor
Chicago, IL 60601
(312) 609-5509
(312) 282-5506 (cell)
<mailto:Aventrelli at sdflaw.com> Aventrelli at sdflaw.com
EXECUTIVE SUMMARY
1. Summary of the Resolution
This resolution urges federal, state, territorial, and tribal governments to
enact
legislation and implement public policy providing that custody, visitation,
and access shall not be denied or restricted, nor shall a child be removed
or parental rights terminated, based on a parent's disability, absent a
showing-supported by clear and convincing evidence-that the disability is
causally related to a harm or an imminent risk of harm to the child that
cannot be alleviated with appropriate services, supports, and other
reasonable modifications. This resolution further urges all federal, state,
territorial, and tribal governments to enact legislation and implement
public policy providing that a prospective parent's disability shall not be
a bar to adoption or foster care when the adoption or foster care placement
is determined to be in the best interest of the child.
2. Summary of the Issue that the Resolution Addresses
This resolution responds to the rising number of disability discrimination
complaints from parents with disabilities who have had their children taken
away, their visitation and access rights restricted, or have been denied
reasonable accommodations, as well as from prospective parents with
disabilities who have not been given equal opportunities to become foster or
adoptive parents.
3. Please Explain How the Proposed Policy Position will address the
issue
This resolution will address the issue by calling on governments to enact
legislation and implement public policy that protects parents and
prospective parents with disabilities from discrimination and requires
objective, evidence-based determinations in family law and child welfare
cases.
4. Summary of Minority Views
At this time, we are unaware of any opposition.
_____
[1] Some states use the term "parental responsibility" or "parental
decision-making responsibility" instead of the term "custody." This report
will use the term "custody."
[2] See Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923); Pierce v. Soc'y of
Sisters, 268 U.S. 510, 534-35 (1925); Prince v. Massachusetts, 321 U.S. 158
(1944); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Smith v. Org. of
Foster Families, 431 U.S. 816 (1977); Quilloin v. Walcott, 434 U.S. 246, 255
(1978); Santosky v. Kramer, 455 U.S. 745, 753 (1982), Troxel v. Granville,
530 U.S. 57, 65 (2000).
[3] Ella Callow, Kelly Buckland, and Shannon Jones, Parents with
Disabilities in the United States: Prevalence, Perspectives, and a Proposal
for Legislative Change to Protect the Right to Family in the Disability
Community, 17 Tex. J. on C.L. & C.R. 9, 17 (Fall 2011).
[4] Id. at 18.
[5] Id.
[6] Id. at 19.
[7] Id.
[8] 42 U.S.C. § 12101(b)(1).
[9] Id. § 12101(a)(1).
[10] Id. § 12101(a)(7).
[11] Id. § 12101(a)(8).
[12] Id. § 12132.
[13] Stephen H. Kaye, Population Estimates and Demographics of Parents with
Disabilities in the United States (Berkeley, CA: Through the Looking Glass,
2011).
[14] Id.
[15] Elizabeth Lightfoot and Sharyn DeZelar, The Experiences and Outcomes of
Children in Foster Care Who Were Removed Because of a Parental Disability,
62 Child Youth Serv. Rev. 22 (2016).
[16] Alison Gemmill, Summary of the 2008 National Child Abuse and Neglect
Data System (NCANDS) Child File: Victims of Maltreatment and Their
Caregivers' Disabilities (Berkeley, CA: Through the Looking Glass, 2011).
[17] David McConnell et al., Parental Cognitive Impairment and Child
Maltreatment in Canada, 35(8) Child Abuse & Neglect 621-32 (Aug. 2011); Tim
Booth, Wendy Booth, and David McConnell, Care Proceedings and Parents with
Learning Difficulties: Comparative Prevalence and Outcomes in an English and
Australian Court Sample, 10(4) Child Fam. Soc. Work 353-60 (Nov. 2005); Tim
Booth and Wendy Booth, Findings from a Court Study of Care Proceedings
Involving Parents with Intellectual Disabilities, 1(3-4) J. Pol'y Pract.
Intellect. Disability 179-81 (Sept. 2004); Gwynnyth Llewellyn, David
McConnell, and Luisa Ferronato, Prevalence and Outcomes for Parents with
Disabilities and Their Children in an Australian Court Sample, 27(3) Child
Abuse & Neglect 235-51 (Mar. 2003); Brigit Mirfin-Veitch et al., Supporting
Parents with Intellectual Disabilities, 6 New Zealand J. Disability Stud.
60-74 (1999); Maurice Feldman, Bruce Sparks, and Laurie Case, Effectiveness
of Home-Based Early Intervention on the Language Development of Children of
Mothers with Mental Retardation, 14(5) Res. Developmental Disabilities
387-408 (Sept.-Oct.1993).
[18] Jung Min Park, Phyllis Solomon, and David S. Mandel, Involvement in the
Child Welfare System Among Mothers with Serious Mental Illness, 57(4)
Psychiatric Serv. 493, 496 (2006).
[19] Loran B. Kundra and Leslie B. Alexander, Termination of Parental Rights
Proceedings: Legal Considerations and Practical Strategies for Parents with
Psychiatric Disabilities and the Practitioners Who Serve Them, 33(2)
Psychiatric Rehab. J. 144-45 (Fall 2009).
[20] Elizabeth Lightfoot, Katharine Hill, and Traci LaLiberte, The Inclusion
of Disability as a Condition for Termination of Parental Rights, 34 Child
Abuse & Neglect 927, 928 (2010).
[21] Linda Toms Barker and Vida Maralani, Final Report: Challenges and
Strategies of Disabled Parents: Findings from a National Survey of Parents
with Disabilities (Berkeley, CA: Through the Looking Glass, 1997), available
at
<http://www.lookingglass.org/store/product_info.php?manufacturers_id=10&prod
ucts_id=33>
http://www.lookingglass.org/store/product_info.php?manufacturers_id=10&produ
cts_id=33 .
[22] Elizabeth Bartholet, What's Wrong with Adoption Law? 4 Int'l J. of
Children's Rights 265-66 (1996), available at
<http://www.law.harvard.edu/faculty/bartholet/pdfs/wrong.pdf>
http://www.law.harvard.edu/faculty/bartholet/pdfs/wrong.pdf.
[23] See generally Handbook of Attachment: Theory, Research, and Clinical
Applications (Jude Cassidy and Philip R. Shaver eds., 1999)
[24] Id.
[25] John Bowlby, A Secure Base: Parent-Child Attachment and Healthy Human
Development 32 (1988).
[26] L. Alan Sroufe et al., Relationships, Development, and Psychopathology,
in Handbook of Developmental Psychopathology 75, 80 (Arnold J. Sameroff,
Michael Lewis, and Suzanne M. Miller eds., 2d ed., Kluwer Academic/Plenum
Publishers 2000).
[27] Douglas F. Goldsmith, David Oppenheim, and Hanine Wanlass, Separation
and Reunification: Using Attachment Theory and Research to Inform Decisions
Affecting the Placements of Children in Foster Care, 55 Juv. & Fam. Ct. J.
1, 2 (2004).
[28] Kurt Mundorff, Children as Chattel: Invoking the Thirteenth Amendment
to Reform Child Welfare, 1 Cardozo Pub. L. Pol'y & Ethics J. 131, 150
(2003).
[29] National Council on Disability, Rocking the Cradle: Ensuring the Rights
of Parents with Disabilities and Their Children 2 (Sept. 27, 2012),
available at <http://www.ncd.gov/publications/2012/Sep272012>
http://www.ncd.gov/publications/2012/Sep272012.
[30] Some states use the term "parenting time" instead of the term
"visitation." This report will use the term "visitation." Parenting time
issues include what the regular parenting time schedule should be for the
children. This means day-to-day visitations schedules, pick-up and drop-off
arrangements, as well as holiday and vacation schedules.
[31] Note that a right of access is much broader than a right of visitation.
Rights of access may encompass the right to open communication with the
child by means of Skype, Facetime, telephone, emails, letters, and physical
visitation.
[32] National Council on Disability & Christopher & Dana Reeve Foundation,
Parenting with a Disability: Know Your Rights Toolkit (May 5, 2016),
available at
<http://www.ncd.gov/sites/default/files/Documents/Final%20508_Parenting%20To
olkit_Plain%20Language_0.pdf>
http://www.ncd.gov/sites/default/files/Documents/Final%20508_Parenting%20Too
lkit_Plain%20Language_0.pdf.
[33] Letter from U.S. Dep't. of Justice, Civil Rights Division & U.S. Dep't
of Health & Human Serv., Office for Civil Rights, to Interim Comm'r Erin
Deveney, Mass. Dep't of Children & Families (Jan. 29, 2015), available at
<http://www.ada.gov/ma_docf_lof.pdf> http://www.ada.gov/ma_docf_lof.pdf.
[34] 42 U.S.C. § 12131 et seq.
[35] 29 U.S.C. § 794.
[36] See 42 U.S.C. § 12101(a)(5).
[37] U.S. Dep't of Health & Human Serv., Office for Civil Rights, Admin. For
Children & Families & U.S. Dep't of Justice, Civil Rights Div. Disability
Rights Section, Protecting the Rights of Parents and Prospective Parents
with Disabilities: Technical Assistance for State and Local Child Welfare
Agencies and Courts under Title II of the Americans with Disabilities Act
and Section 504 of the Rehabilitation Act (Aug. 10, 2015), available at
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.pdf>
http://www.ada.gov/doj_hhs_ta/child_welfare_ta.pdf.
[38] U.S. Dep't of Health and Human Serv., Office for Civil Rights, Admin.
for Children & Families & Georgia Dep't of Human Serv., Division of Family &
Children Serv., Settlement Agreement, OCR Transaction No. 09-102792 (Dec.
15, 2015), available at
<http://www.hhs.gov/sites/default/files/dfcs-revised-settlement-agreement.pd
f>
http://www.hhs.gov/sites/default/files/dfcs-revised-settlement-agreement.pdf
.
[39] U.S. Department of Health & Human Services Office for Civil Rights &
State of Georgia Department of Human Services, Settlement Agreement, OCR
Transaction No. 09-102792 (Dec. 15, 2015), available at
<http://www.hhs.gov/sites/default/files/dfcs-revised-settlement-agreement.pd
f>
http://www.hhs.gov/sites/default/files/dfcs-revised-settlement-agreement.pdf
.
[40] ABA Resolution 95A107.
[41] ABA Resolution 99M109(b),
<http://www.americanbar.org/content/dam/aba/directories/policy/1999_my_109b.
authcheckdam.pdf>
http://www.americanbar.org/content/dam/aba/directories/policy/1999_my_109b.a
uthcheckdam.pdf.
[42] ABA Resolution 03A112,
<http://www.americanbar.org/content/dam/aba/directories/policy/2003_am_112.a
uthcheckdam.pdf>
http://www.americanbar.org/content/dam/aba/directories/policy/2003_am_112.au
thcheckdam.pdf.
[43] ABA Resolution 06M102,
<http://www.americanbar.org/content/dam/aba/directories/policy/2006_my_102.a
uthcheckdam.pdf>
http://www.americanbar.org/content/dam/aba/directories/policy/2006_my_102.au
thcheckdam.pdf.
[44] ABA Resolution 08A107,
<http://www.americanbar.org/content/dam/aba/directories/policy/2008_am_107.a
uthcheckdam.pdf>
http://www.americanbar.org/content/dam/aba/directories/policy/2008_am_107.au
thcheckdam.pdf.
[45] Addington v. Texas, 441 U.S. 418, 425 (1979).
[46] Id. at 424.
[47] Santosky v. Kramer, 455 U.S. 745 (1982).
[48] Id. at 766-67.
[49] Id. at 768.
[50] Child Welfare Information Gateway, Factsheet: How the Child Welfare
System Works (2013),
<http://www.childwelfare.gov/pubs/factsheets/cpswork.cfm>
http://www.childwelfare.gov/pubs/factsheets/cpswork.cfm.
[51] Santosky, 455 U.S. at 753; Quilloin v. Walcott, 434 U.S. 246, 255
(1978); Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977).
[52] Reno v. Flores, 507 U.S. 292, 303 (1993); Santosky, 455 U.S. at 766
(observing that the state has an "urgent interest in the welfare of the
child") (quoting Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981)
(internal quotations omitted)); Prince v. Mass., 321 U.S. 158, 166 (1944).
[53] Santosky, 455 U.S. 745.
[54] See Ala. Code 1975 § 12-15-319(a)(2) (2016) (Mental Illness/Emotional
Disability & Intellectual/Developmental Disability); Alaska Stat. Ann. §
47.10.011(11) (2016) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability); Ark. Code Ann. §
9-27-341(b)(3)(B)(vii)(c) (2015) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability); Ariz. Rev. Stat. §8-533 (b)(3)
(2014); Cal. Welf. & Inst. Code § 300(b)(1) (2016) (Mental Illness/Emotional
Disability & Intellectual/Developmental Disability); Colo. Rev. Stat. §
19-3-604(b)(I) (2012) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability); 13 Del. Code § 1103(a)(3) (2009)
(Mental Illness/Emotional Disability & Intellectual/Developmental
Disability); D.C. Code § 16-2353(b)(2) (2016) (Mental Illness/Emotional
Disability & Intellectual/Developmental Disability & Physical Disability);
Ga. Code Ann. §§ 15-11-310, 15-11-26(9) (2014) (Mental Illness/Emotional
Disability & Intellectual/Developmental Disability & Physical Disability);
Haw. Rev. Stat. § 571-61(b)(1)(F) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability); 750 Ill. Comp. Stat. Ann. 50/1(D)(p)
(2016) (Mental Illness/Emotional Disability & Intellectual/Developmental
Disability); Iowa Code Ann. § 232.116(1)(k)2), (2)(a) (2016) (Mental
Illness/Emotional Disability & Intellectual/Developmental Disability); Kan.
Stat. Ann. Art. 22, § 38-2269(b)(1) (2016) (Mental Illness/Emotional
Disability & Intellectual/Developmental Disability & Physical Disability);
Ky. Rev. Stat. § 625.090(3)(A) (2012) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability); Md. Code Ann., Fam. Law §
5-323(d)(2)(iii) (2009) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability & Physical Disability); Mass. Gen.
Laws Ann. 210 § 3(c)(xii) (2012) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability); Miss. Code Ann. § 93-15-121(a), (b)
(2016) (Mental Illness/Emotional Disability & Intellectual/Developmental
Disability & Physical Disability); Mo. Rev. Stat. § 211.447(5)(2)(A), (10)
(2014) (Mental Illness/Emotional Disability & Intellectual/Developmental
Disability); Mont. Code Ann. § 41-3-609(2)(a) (2015) (Mental
Illness/Emotional Disability & Intellectual/Developmental Disability); Neb.
Rev. Stat. § 43-292(5) (2016) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability); Nev. Rev. Stat. Ann. § 128.106(1)(a)
(2015) (Mental Illness/Emotional Disability & Intellectual/Developmental
Disability); N.H. Rev. Stat. Ann. § 170-C:5(IV) (2016) (Mental
Illness/Emotional Disability & Intellectual/Developmental Disability); N.J.
Stat. Ann. §§ 9:2-19, 9:2-13(e) (2013) (Intellectual/Developmental
Disability); N.M. Stat. Ann. §§ 32A-4-28(B)(2),
<http://public.nmcompcomm.us/nmpublic/gateway.dll/?f=templates&fn=default.ht
m> 32A-4-2(F)(4) (2016) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability & Physical Disability); N.Y. Soc.
Serv. § 384-b 4(c) (2016) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability); N.C. Gen. Stat. § 7B-1111(a)(6)
(2013) (Mental Illness/Emotional Disability & Intellectual/Developmental
Disability); N.D. Cent. Code § 27-20-44(1)(b) (2016) (Mental
Illness/Emotional Disability & Intellectual/Developmental Disability &
Physical Disability); Ohio. Rev. Stat. Ann. § 2151.414(E)(2) (2016) (Mental
Illness/Emotional Disability & Intellectual/Developmental Disability &
Physical Disability); Okla. Stat. Ann. § 1-4-904(B)(13) (2016) (Mental
Illness/Emotional Disability & Intellectual/Developmental Disability &
Physical Disability); Or. Rev. Stat. § 419B.504(1) (2016) (Mental
Illness/Emotional Disability & Intellectual/Developmental Disability); S.C.
Code Ann. § 63-7-2570(6) (2014) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability & Physical Disability); Tenn. Code
Ann. § 36-1-113(g)(8)(A) (2016) (Intellectual/Developmental Disability);
Tex. Fam. Code § 161.003(a)(1) (2015) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability); VA. Ann. Code § 16.1-283(B)(2)(a)
(2012) (Mental Illness/Emotional Disability & Intellectual/Developmental
Disability); Wash. Rev. Code § 13.34.180(1)(e)(ii) (2013) (Mental
Illness/Emotional Disability & Intellectual/Developmental Disability); Wis.
Stat. Ann. § 48.415(3) (2016) (Mental Illness/Emotional Disability &
Intellectual/Developmental Disability). See also Elizabeth Lightfoot, Sharyn
DeZelar, and Andrea Brubaker, The Inclusion of Parental Disability in State
Termination of Parental Rights Statutes: A State of the States ( University
of Minnesota, School of Social Work, Center for Advanced Studies in Child
Welfare, 2015) <http://cascw.umn.edu/portfolio-items/disability-map/>
http://cascw.umn.edu/portfolio-items/disability-map/ (providing a
state-by-state analysis of state dependency statutes and the inclusion of
parental disability).
[55] Ala. Code § 12-15-312(c)(1)(e) (2016); Alaska Stat. § 47.10.086(c)(5)
(2015); Ariz. Rev. Stat. § 8-846(D)(1)(b) (2016); Cal. Welf. & Inst. Code §
361.5(a), (b)(2) (2016); Ky. Rev. Stat. § 610.127(6) (2016); S.C. Code Ann.
§ 63-7-1640(C)(7) (2016); Utah Code Ann. § 78A-6-312(20), (21)(a) (2016).
[56] Susan Stefan, Accommodating Families: Using the Americans with
Disabilities Act to Keep Families Together, 2 St. Louis U. J. Health L. &
Pol'y 135, 168 (2008).
[57] 42 U.S.C. § 12132.
[58] Id. § 12131(1)(A), (B).
[59] U.S. Department of Health and Human Services & U.S. Department of
Justice, supra note 37.
[60] Id.
[61] 42 U.S.C. §§ 12181-189.
[62] Id. § 12181(7)(K).
[63] 29 U.S.C. § 794(a).
[64] See, e.g., 28 C.F.R. § 42.105; 45 C.F.R. § 84.5.
[65] See, e.g., 28 C.F.R. § 35.130(b); see also 28 C.F.R. pt. 35, App. B
(explaining in the 1991 Section-by-Section guidance to the Title II
regulation that, "[t]aken together, the provisions [in 28 C.F.R. §
35.130(b)] are intended to prohibit exclusion . . . of individuals with
disabilities and the denial of equal opportunities enjoyed by others, based
on, among other things, presumptions, patronizing attitudes, fears, and
stereotypes about individuals with disabilities. Consistent with these
standards, public entities are required to ensure that their actions are
based on facts applicable to individuals and not presumptions as to what a
class of individuals with disabilities can or cannot do."); School Bd. of
Nassau County v. Arline, 480 U.S. 273, 285 (1987).
[66] U.S. Department of Health and Human Services & U.S. Department of
Justice, supra note 37.
[67] See 45 C.F.R. §§ 84.12(a), 84.22(a) & (f), 84.52(d); 28 C.F.R. §
35.130(b)(7).
[68] U.S. Department of Health and Human Services & U.S. Department of
Justice, supra note 37.
[69] 28 C.F.R. § 35.160; 45 C.F.R. § 84.52(d).
[70] U.S. Department of Health and Human Services & U.S. Department of
Justice, supra note 37.
[71] 28 C.F.R. § 35.160(b)(2).
[72] Id.
[73] See 28 C.F.R. § 35.130(b)(1)(ii)-(iv), (vii), (b)(7); 45 C.F.R. §
84.4(b)(1)(ii)-(iii); see also 28 C.F.R. § 42.503(b)(1)(ii), (iii).
[74] U.S. Department of Health and Human Services & U.S. Department of
Justice, supra note 37.
[75] Id.
[76] Id.
[77] 28 C.F.R. § 35.139; see School Bd. of Nassau County v. Arline, 480 U.S.
273 (1987).
[78] Id.
[79] 28 C.F.R. § 35.139(a)-(b); Arline, 480 U.S. at 287.
[80] 28 C.F.R. § 35.139(b); Arline, 273 U.S. at 288.
[81] See Rocking the Cradle, supra note 29, at 93-94 (comprehensively
reviewing court decisions).
[82] Id. at 93.
[83] See, e.g., In re Adoption of Gregory, 747 N.E.2d 120, 125 (Mass. 2001);
In re Terry, No. 214617, 2000 WL 244425, at *5 (Mich. Ct. App. Feb. 29,
2000); In re Antony B., 54 A.2d 893, 899 (Conn. App. Ct. 1999); In re
B.K.F., 704 So. 2d 314, 317 (La. Ct. App. 1997); In re B.S., 693 A.2d 716,
720 (Vt. 1997).
[84] In re B.S., 693 A.2d at 721. See also In re Torrance P., 522 N.W.2d
243, 244-45 (Wis. Ct. App. 1994) (duty to make diligent effort to provide
court-ordered services is defined by dependency statute and not ADA; ADA
does not increase those responsibilities or dictate how they must be
discharged); In re Maryia R., 1997 WL 178082, at *5 (Conn. Super. Ct. Apr.
1, 1997) (although father's developmental disability must be considered in
determining reasonableness of county's efforts, neither his disability nor
ADA changes inquiry or burden of proof).
[85] See, e.g., In re Doe, 60 P.3d 285, 293 (Haw. 2002); In re Rodriguez,
No. 98CA007073, 1999 WL 568115, at *8 (Ohio Ct. App. Aug. 4, 1999).
[86] Irving N. v. R.I. Dep't of Children, Youth & Families, 900 A.2d 1202
(R.I. 2006), cert. denied, 127 S. Ct. 1372 (2007).
[87] Joshua B. Kay, "Representing Parents with Disabilities, in Representing
Parents in Child Welfare Cases: Advice and Guidance for Family Defenders 259
(Martin Guggenheim and Vivek S. Sankaran eds., Chicago: ABA Publishing,
2015). See Chris Watkins, Comment, Beyond Status: The Americans with
Disabilities Act and the Parental Rights of People Labeled Developmentally
Disabled or Mentally Retarded, 83 Cal L. Rev. 1415, 1473-74 (1995).
[88] Id.
[89] Id. at 263.
[90] In re Hicks/Brown, No. 328870, 2016 WL 1650104 (Mich. Ct. App. Apr. 26,
2016).
[91] Pub. L. No. 105-89, 111 Stat. 2115 (1997).
[92] 42 U.S.C. § 671(a)(15)(A) & (B).
[93] Kay, supra note 87, at 256; 45 C.F.R. § 1355.34(c)(5)(vi).
[94] Id.
[95] 42 U.S.C. § 671(a)(15)(D)(i)-(ii).
[96] See, e.g., Cal. Fam. Code § 3011 (2013); Conn. Gen. Stat. Ann. § 46b et
seq. (2016); Fla. Stat. Ann. § 61.13(2)(c) (2016); Minn. Stat. § 518.17
(2015); N.Y. Dom. Rel. Law § 70 (2016) (as interpreted in Miller v. Pipia,
297 A.D.2d 362, 364-65 (N.Y. App. Div. 2002) and Eschbach v. Eschbach, 436
N.E.2d 1260 (N.Y. 1982)); Okla. Stat. tit. 43, § 112 (2016); Tex. Fam. Code
§ 153.002 (2015).
[97] Idaho Stat. § 32-717(5) (2016).
[98] Id. § 32-717(2).
[99] Md. Code Ann., Fam. Law § 9-107(b)(1) (2016).
[100] Id. § 9-107(b)(2).
[101] Id. § 9-107(b)(3).
[102] Id. § 9-107(b)(4)(i).
[103] Id. § 9-107(b)(4)(ii).
[104] Or. Rev. Stat. § 107.137(3) (2016).
[105] Tenn. Code Ann. § 36-106(e).
[106] Jacobus tenBroek, The Right to Live in the World: The Disabled in the
Law of Torts, 54 Cal. L. Rev. 841 (1966).
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