March 01, 2017

Parents with Disabilities

The ABA expressed support this month for H. 3538, a bill pending in the South Carolina House of Representatives that would safeguard the right of people with disabilities to parent and have custody of, or visitation with, a child by prohibiting discrimination based solely on disability. “Twenty-six years after the enactment of the American with Disabilities Act, 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,” John D. Elliott, the South Carolina Bar delegate to the ABA House of Delegates, said in testimony March 2 before the South Carolina House Judiciary Subcommittee on General Laws. Elliot described policy adopted by the ABA at the February 2017 Midyear Meeting urging state 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 convicting 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.” The policy also urges that a prospective parent’s disability not be a bar to adoption or foster case when the placement is determined to be in the best interests of the child.  Elliott explained that even though the U.S. Supreme Court has long recognized that the fundamental right of parents to make decisions concerning the care, custody and control of their children is protected under the Due Process Clause of the Fourteenth Amendment, many parents with disabilities are denied access to appropriate family-based services, support and other reasonable modifications that would provide them with a full and equal opportunity to keep or reunite with their child. He noted that there has been a rising number of disability discrimination complaints from parents with disabilities, and the Department of Health and Human Services and the Justice Department issued joint technical assistance in August 2015 to state and local child welfare agencies and courts. He emphasized that the legislation would provide people with disabilities the right to supportive services to help them compensate for the aspects of their disabilities that affect their ability to care for a child and at the same time would not limit the state’s right to protect the child’s health and safety.

 

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