Bias and subsequent discrimination toward people with disabilities is prevalent in our legal system, and its tentacles, based on our unconscious judgments, perceptions, and assumptions, too often puncture and permeate even our best intentions—usually cloaked in the legal authority of parens patriae—in ways that are sometimes subtle yet highly consequential. The labeling of someone as disabled subjects them to the critique of a social organization that seeks to exclude, restrict, and unwittingly put at a disadvantage people who have impairments, instead of recognizing the vast diversity of human beings and their inherent value and essential equality.
Or, to put it more bluntly, it is about prejudice. Whether the disabled person is a litigant or a child, when prejudice pushes them to the back of the queue because of the general lack of knowledge regarding the underlying facts about their abilities as a disabled person, the resultant decisions or conclusions made about them, predominantly based on fear and stereotypes, can have tragic consequences.
Bias Toward Adult Litigants or Parties
Bias toward adult litigants or parties in family courts is most often seen in the context of child custody and child welfare litigation. Although the right to be a parent is generally regarded as fundamental, this right is not always assumed for people with disabilities. Society as a whole tends to see people with disabilities as helpless, needy, and limited in their ability to meaningfully contribute. There is a tendency to dumb things down for people with disabilities and have lower expectations. A basic understanding of what it means to be disabled is just not something that is commonly known. Presumptions are typically based on stereotypes. Such stigma too often results in disastrous conclusions for parents who are involved in litigation regarding their children. Indeed, the rate of removal of children from parents with disabilities—especially if the disability is of a psychiatric, intellectual, or developmental variety—is ominously higher than rates for children whose parents are not disabled. Parents with disabilities are routinely referred to child protection services, and once involved, are permanently separated from their children at disproportionately high rates.
In fact, disabled parents are at a much higher risk of losing custody of their children than abled parents even though, when a court uses a parent’s disability as a factor in a custody or parenting time determination, the court is required to make specific written findings regarding how the parent’s disability has or will cause harm to their child. Despite this, according to the Christopher & Dana Reeve Foundation, two-thirds of the dependency statutes in the U.S. allow the court to determine that a parent is unfit on the basis of a disability, 35 states include disability as grounds for termination of parental rights, ten states allow physical disability as the sole grounds for the termination of a parent’s rights—even without evidence of abuse or neglect—and, in every state, disability of a parent can be included in determining the best interest of the child.
A young mother with quadriplegia had her baby removed at birth after testing had shown prenatal substance abuse. The social worker described the mother as forming no relationship with her baby. Because of the social worker’s unconscious biases regarding the mother’s disabilities, the social worker presumed the mother was psychologically incapable of forming a relationship with her newborn. Needless to say, the social worker reported the mother was depressed and appeared estranged and disinterested in her baby. However, in the six months since the child had been born the mother had not been offered or provided any assistance to make it possible for her to hold or care for her baby. Not surprisingly, when the social worker showed the mother videotapes of parents with disabilities and their babies (images of possibilities), the mother asked if the social worker would help her hold and feed her baby and, with an assortment of props and pillows, the mother was able to hold her baby for the first time. She tenderly nuzzled and murmured to her, caressing her with her lips, greeting her baby as new mothers do.
Bias toward adult litigants on the basis of disability also rears its head in cases where a guardian ad litem (GAL) is appointed. Under the doctrine of parens patriae, the state has a fundamental interest in protecting children. Accordingly, states may claim the authority to protect children by limiting or, under extreme circumstances, severing a parents’ rights. Typically, “extreme circumstances” involve instances of child abuse and neglect. Following this doctrine of parens patriae, many states have statutes that require a mandatory appointment of a GAL if the court suspects a child is a victim of abuse or neglect. In the context of a disabled parent, however, many times a GAL is appointed even though the allegations in the case do not rise to the level of abuse or neglect. In those cases, what other conclusion can be made but that the parent’s disability (for example, a seizure disorder) was the (unlawful) basis for the mandatory appointment? In other words, instead of respectfully making an inquiry into the actual facts of a parent’s disability to ascertain whether restrictions are even necessary (and, if so, whether some sort of adaptive assistance might level the playing field), family courts will often drastically reduce a disabled parent’s access to their children based on recitations of social workers who may not be qualified to assess a disabled parent’s disability and subsequent fitness to parent.
Furthermore, disabled parents who strive to be good parents often find that their efforts are misunderstood. They are not seen as parents trying to solve practical problems arising from their special situation. Instead, people often tend to interpret what they do as indicative of their shortcomings even though all parents, abled or disabled, make mistakes and have accidents. Likewise, out of fear of being harshly judged as a disabled person taking advantage of a child’s eagerness to help, and in an effort to prove their fitness, many disabled parents will refrain from requiring their children to be responsible for certain household chores because their children’s helping out around the home is not viewed in the context of normal socialization, but rather against the backdrop of the parent’s disability and need for assistance.
At a beach, a disabled mother in a wheelchair tied a rope to her children’s life jackets. She wanted her children to be able to move around freely while feeling secure they would not be in danger. Unfortunately, this was not acceptable to some beachgoer, who called 911 to report what they viewed as child abuse.
Bias Toward Children
One of the consistently tragic areas of family law where systemic discrimination against children with disabilities persists is in the area of adoptions. In many adoption agencies, whether they are public or private, children in need of adoption are ranked based on their desirability. Babies are on top of the list. As children get older, their ranking or desirability is concomitantly reduced, with the oldest and disabled children placed at the bottom. Although the ADA protects a disabled child from discriminatory treatment, these protections are largely inconsequential in practice. In other words, the network of adoption agencies working with potential parents in the United States does little if anything to discourage this ranking system, subsequently permitting informal prejudice to occur.
Children with disabilities have significantly lower rates of adoption and, once adopted, have higher rates of disruption. Sadly, the disability expertise of practitioners tasked with facilitating and coordinating this very important aspect of a child’s life may be questionable, as is their awareness of potential adaptive solutions.
When Mary, a woman with significant physical and sensory disabilities, applied to adopt her disabled niece, the social worker told Mary “a handicapped woman can’t take care of a handicapped child.” Luckily, Mary persisted and, after a court-appointed special advocate got involved a year later and the state child welfare agency was almost held in contempt, she was able to adopt her niece.
Meanwhile, children with developmental disabilities are oftentimes coerced into undergoing unnecessary medical procedures by well-intentioned doctors, social workers—and even their parents—to remove their reproductive organs. Mainstream society’s discomfort with the notion of people with disabilities’ relational intimacy is well documented. Subsequently, these young adults endure the results of misinformation and ignorance about their body’s capacity for enjoyment when that body differs from what is considered to be normal, resulting in the extinguishment of their reproductive rights in addition to the general disapproval they face when attempting to engage in romantic relationships. Concerns that they may give birth to “defective” babies and prejudicial assumptions about their capacity (as future disabled parents) to care for their children underpin the blatantly discriminatory treatment they endure. This odious pressure to ensure the highest-quality offspring has also resulted in a trend where women who choose to forgo prenatal testing often do so in the face of harsh criticism by their doctors, and sometimes even run the risk of losing their medical insurance if they choose to bring a fetus to term rather than abort a “flawed” (and therefore expensive) newborn.
Finally, we also see bias toward children manifest where children are treated unjustifiably differently because of their parents’ disability. The issue of a person’s disability usually isn’t about the physical, mental, or intellectual impairments that may or may not be associated with it, but about people’s implicit response to them. Consequently, the children of disabled parents are routinely victimized when they are separated without cause from their parents under the guise of benevolent protection. Regardless of the age of the child, separating children from those with whom they have established an in loco parentis relationship is a well-known source of anxiety, stress, and potential trauma. In infant-parent relationships, insufficient contact between the parent and infant can compromise and disrupt their mutual adaptive process. For example, studies have shown that infants as young as one month begin adapting to their parent’s disabilities by, for example, holding still and curling up into a fetal position during lifts.
So, What Can We Do?
One of the most important tools we have to mitigate bias against people with disabilities in family courts is to educate those who are likely to exhibit it.
Remind the court, the lawyers, the agencies, the experts, and the parties that one of the core tenets of our society is the importance of confronting discrimination. Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (ADA, or Title II) protects parents (and prospective parents) and children with disabilities from unlawful discrimination in the administration of child welfare programs, activities, access to the court, and court services. This includes state court proceedings involving parentage and parental rights. Such proceedings are classified as state activities and services for purposes of Title II.
The freedom to parent without interference from the state is a fundamental right protected by the 14th Amendment. The Child Welfare Act of 1980 required that “reasonable efforts” be made to keep children with their parents, to prevent or eliminate the need for removal of the child from his or her family. Then, in 1997, the Adoption and Safe Families Act (ASFA) clarified the requirement of the reasonable efforts standard, balancing it with the need to make safety the “paramount concern,” thereby strengthening the state’s response to a child’s need for safety and permanency at every point along the continuum of care.
Pursuant to the ASFA, states must make “reasonable” efforts to preserve a family before moving a child to an out-of-home placement. Under Section 504 and Title II of the ADA, courts are also required to make individualized factual assessments and consider, if appropriate, adaptive services to level the playing field. Thus, the court is required to first make an individualized assessment that evaluates the strengths, needs, and capabilities of the disabled parent or child based on objective evidence, personal circumstances, demonstrated competencies, and other factors divorced from generalizations and stereotypes. Such an assessment would inform the court regarding whether or not there is a need to restrict or remove the child from the care of the parent at all, and whether provisions could be made for adaptive services that would help a disabled parent perform as any other “able” parent would. This rarely happens.
The unspoken notion or presumption that a child is not safe because the parent is disabled is alive and well, though grievously outdated. Despite the fact that laws protecting the disabled are decades old, the federal requirements have flown under the radar to the point that very few people seem to be aware that reasonable efforts in family court following a factual assessment is a requirement under federal law. Disabled parents (and parents of disabled children) are often left to their own devices and must bear the burden of proving their fitness or ability to parent with little or no assistance at all, or they risk having their children determined to be in need of protection or services and removed from their care.
The single most effective way we can help minimize this reality is by underscoring that ensuring disabled parents have equal access to parenting opportunities is not an aspirational idea but a requirement under federal law. Insist that reasonable efforts are made and decisions involving people with disabilities are based on an individualized assessment of a disabled child’s needs or a disabled parent’s ability to adequately meet their child’s needs. As a practical matter, we can do that by insisting that the court go beyond merely providing a plan or a list of recommendations with the expectation that the parent will develop their own resources. We can do that by expressly requesting that the court examine whether the disability is relevant to the safety and protection of the child or the child’s best interest; determine whether services to the child and parent are adequate to meet the needs of the child and the parent, culturally appropriate, available and accessible, consistent and timely, and realistic under the circumstances; and determine whether or not auxiliary or adaptive services would level the playing field.
Our biases include both favorable and unfavorable assessments that directly affect our understanding, actions, and decisions on an unconscious level. Remarkably, a person’s implicit associations—acquired over their lifetime—may or may not even align with their explicitly declared beliefs. Nevertheless, our unconscious biases cause us to assign a value to people. Unfortunately, because stereotypes persist, our split-second unconscious assignment of value too often leads to discriminatory practices and decisions that have little basis in fact. As a result, people with disabilities continue to encounter significant legal, medical, and familial resistance to their decision and desire to become or continue to be parents.
Those of us who want to do our part in mitigating this result must start by making sure that state judiciaries across the country do not sidestep their duties to their citizens to address the issue of accessibility under the ADA and the Rehabilitation Act. This way, persons with disabilities are assured equal access to state and local governments and courts so that they may meaningfully exercise their fundamental rights protected by the Due Process clause of the 14th Amendment, and have a fair shot at having their cases evaluated by individualized factual assessments.
Benjamin Franklin is quoted as saying, justice will not be served until those that are not affected are as outraged as those who are. The truth is we are all different, and we all have different abilities. And we all have implicit biases, preferences, and prejudices. The question that needs to be asked is whether our differences (and our uninformed ideas about the disabled) are being used in family court proceedings as a justification for unequal treatment, the kind that is already so routinely meted out by society at large through invisible slights, indignities, and unexamined assumptions.