Parents with Disabilities and State Child Welfare
While our state child welfare agencies ostensibly serve to protect children from abuse or neglect by caretakers, these systems can pose a threat to the rights of parents with disabilities. Pervasive stereotypes about disability can lead even the most well-meaning agency worker to treat disability as a barrier to parenting and not focus on individual abilities. This can lead to unnecessary agency involvement and cause significant harm to a family.
Studies show that parents with disabilities, especially those with intellectual or psychiatric disabilities, are disproportionately involved in child welfare cases. Nat’l Council on Disability, Rocking the Cradle 15–17 (2012). Parents with disabilities are much more likely to be reported to state child welfare agencies for abusing or neglecting their children than parents without disabilities. And when parents with disabilities are reported, the allegations against them are more likely to be substantiated or supported by agency workers. Parents with disabilities are also tragically more likely to have their children removed from their care and placed in foster care and are more likely to have their parental rights terminated.
Despite this increased likelihood of system involvement, there is little evidence to show that parents with disabilities are any more likely to abuse or neglect their children than parents without disabilities. Instead, many parents find themselves facing state intervention because of misconceptions and stereotypes about their disabilities. In fact, research done on the outcomes of children of parents with various disabilities has provided evidence that many young adults raised by a parent with a disability have had very positive childhood experiences.
The Americans with Disabilities Act: Legal Protections for Parents with Disabilities
Title II of the ADA applies to both state child welfare agencies and the court systems handling the cases involving child welfare. In addition, section 504 of the Rehabilitation Act of 1973 prohibits discrimination against people with disabilities in programs and activities that receive federal financial assistance (29 U.S.C. § 794). Section 504 essentially provides the same protections as the ADA, but this article focuses on the protections under the ADA. The act prohibits government entities from discriminating against parents with disabilities and requires the provision of reasonable accommodations, just as it requires access to public buildings and opportunities for employment. The practical applications, however, can be different given the different nature of services, programs, and activities in this context, and for many advocates, it can be difficult to identify how this law applies to the families that they work with.
Though this article focuses on the rights of biological or legal parents with disabilities and their protections under the law, the ADA applies to and protects the rights of almost every person who could potentially be involved in a child welfare case—children, parents, legal guardians, relatives, caregivers, foster parents, prospective parents, and prospective foster or adoptive parents.
As previously mentioned, the law defines a person with a disability as an individual with an impairment that substantially limits a major life activity or major bodily function. 42 U.S.C. § 12101 and subsequent sections. And the law is meant to be read broadly when determining a disability. It includes protection for anyone who has a record of having a disability or anyone who is even just regarded as having a disability. Id. The law also treats substance use disorder as an impairment under the ADA, including when a parent is in recovery, such as when a parent is prescribed medication for opioid use disorder. The act does not provide protections for individuals if they are actively using illegal drugs according to the federal government. But given the reality of relapse as a part of recovery from substance use disorder, there is an argument that an individual in that situation should still be protected under the law as an individual with a disability and thereby entitled to accommodation and protections against discrimination.
Under Title II of the ADA, parents with disabilities are entitled to several protections. First, individuals with disabilities are guaranteed equal access and equal opportunity to participate in and benefit from services, programs, or activities provided by a government agency (or their contracted providers). 28 C.F.R. § 35.130 (2024). This requires the child welfare agency to conduct an individualized assessment of the needs of the parent, without reliance on generalizations or stereotypes about the parent’s disability. This assessment should determine what is required to ensure the parent can access the service being provided.
Second, the child welfare agency (and the court) must make reasonable modifications to policies, practices, and procedures when necessary to avoid discrimination against individuals with a disability. 28 C.F.R. § 35.130(b)(7) (2024). This can also require reasonable accommodations for individuals involved with the child welfare system in the form of particular supports or services either to ensure the agency is effectively communicating with them (such as providing summaries of meetings in writing or allowing them to bring an individual to meetings with the agency to take notes), or it could require the agency to accommodate when it comes to the activities of their parenting in a way that isn’t the standard practice (such as making reminder calls to parents in advance of their parenting time with the children, or calling them to remind them of doctor’s appointments they are entitled to attend with their child). This provision of the law requires the agency to engage in an interactive process to determine the proper response, because reasonable modifications or accommodations are not one size fits all.
Third, the child welfare agency is required under the ADA to ensure effective communication with parents, which may include providing auxiliary aids and services to a parent. 28 C.F.R. § 35.160(b)(1) (2024). This could include sign-language interpreters or documents in Braille or in plain language. These protections apply to investigations, interviews, assessments, when children are removed, case and service planning meetings, and court proceedings—just to name a few.
Fourth, the methods of administering the service, program, or activity may not discriminate against individuals based on their disability, nor may it lead to disparate treatment of individuals with disabilities. 28 C.F.R. § 35.130(a)–(b)(1)(7) (2024). This may mean that the child welfare agency must obtain services for parents outside the agency with a community-based agency or other service provider (contracted with the state or not) as a reasonable accommodation and to ensure equal access to the service program or activity.
Finally, the ADA also requires that the eligibility criteria applied to individuals to allow them to participate in a service, program, or activity cannot discriminate based on their disability and must allow these benefits to be accessible to individuals with disabilities. 28 C.F.R. § 35.130(a), (b)(8) (2024). For example, if a parenting program requires in-person participation, that criterion for participation could limit access for a person with a mobility-related disability or for a person with a mental health disability who cannot access certain modes of transportation. As a result, it may be necessary to modify that criterion for a parent with a disability so the parent may participate in the program.
All these specific requirements incorporate one resounding principle—that every disability is a disability of one. The agency must treat a parent individually, on a case-by-case basis, and assess that parent based on facts and objective evidence, not based on generalizations or stereotypes regarding the parent’s disability. This requirement for individualized assessment and response applies throughout the agency’s involvement, including when a case worker is determining a parent’s capabilities as a parent and need for support or services.
Each of these requirements presents a federally mandated opportunity for the child welfare agency to support parents with disabilities. Likewise, each agency failure can present an opportunity to advocate for your client. One particular case that occurred in the Commonwealth of Massachusetts led to an enforcement action by the U.S. Department of Justice (DOJ) that has changed the landscape for disability rights advocates in the child welfare system.
The Case of “Sara Gordon”
In a landmark case that brought national attention to the rights of parents with disabilities, Sara Gordon, a mother with an intellectual disability, found herself fighting to keep custody of her daughter, who was removed from her care due to assumptions about her disability. Unfortunately, her case exemplifies what many parents with disabilities experience in the child welfare system, but it has also led to significant changes intended to protect parents with disabilities in Massachusetts.
In 2012, the commonwealth’s Department of Children and Families (DCF) removed Sara’s newborn daughter, Dana, just two days after she was born, citing concerns about Sara’s ability to care for the child, this despite Ms. Gordon’s family support and the network of professionals she had to help her care for her daughter. The DCF argued that her mild intellectual disability posed an inherent risk to the child’s well-being, despite the fact that Ms. Gordon had not even been given the opportunity to demonstrate her ability to parent Dana with proper supports in place. This decision underscored the deep-rooted biases that exist in child welfare agencies, where disabilities are often viewed as automatic disqualifiers for parenting.
Between 2012, when Dana was removed, and 2015, the DCF repeatedly denied Ms. Gordon’s requests for appropriate supports, services, and accommodations. As a result of this treatment, Ms. Gordon filed a complaint with the DOJ and Office for Civil Rights of the U.S. Department of Health and Human Services (HHS). The DOJ concluded an extensive investigation, and in January 2015, the DOJ and HHS issued a joint letter finding that the DCF had discriminated against Ms. Gordon on the basis of her disability and, further, that the agency had engaged in systemic discrimination against parents with disabilities, in violation of the ADA. Joint Letter from the U.S. Dep’t of Justice and U.S. Dep’t of Health & Human Servs., to Erin Deveney, Interim Comm’r of the Mass. DCF (Jan. 29, 2015).
The DOJ identified systemic failures of the DCF to ensure that its case workers followed appropriate policies and procedures and have necessary training to perform their duties, without discriminating on the basis of disability. Id. at 3. The DOJ further found that the DCF repeatedly and continuously denied Ms. Gordon the opportunity to participate in and benefit from its services, programs, and activities, as required by the ADA, such as tailored support services, adaptive parenting programs, and assistance for meaningful visitation that would enable her to learn how to care for her daughter. Id. at 11–21. The DOJ’s findings were a critical turning point for disability rights within the child welfare system. The DOJ’s investigation concluded that the DCF’s practices were not only discriminatory but in direct violation of federal law. And its findings drew attention to the requirements of the ADA and its application to child welfare to protect parents with disabilities from discriminatory treatment when it came to how they were raising their children.
After more than two years of court battles, a juvenile court judge awarded guardianship of Dana to her grandmother, who lived with Ms. Gordon and who had always been someone who supported Ms. Gordon. This result reunited the family, with natural support available to Ms. Gordon, and allowed her to continue parenting her daughter. Although this individual case reached a resolution, the DOJ’s efforts to ensure protections for parents with disabilities involved in the child welfare system continued.
In 2020, the DOJ and the HHS reached a landmark settlement agreement with the Massachusetts DCF in response to a complaint filed by Ms. Gordon and numerous others. This agreement required the DCF to comply with the ADA by, among other reforms, revising existing policies, creating a new disability policy, training staff on ADA compliance, and appointing a statewide disability coordinator. A key component of the settlement emphasized that the DCF must assess each parent’s abilities individually, rather than making blanket assumptions based on disability. While the settlement agreement and the subsequent disability policy issued by the DCF represent significant progress in recognizing the rights of parents with disabilities, much remains to be done to improve the practices and experiences of parents involved in the child welfare system. The settlement agreement expired in November 2023, after only three years, leaving limited time for substantial change to take root in such a large state agency and little opportunity for federal monitoring to ensure those changes were implemented effectively.
It is important to note that, although the agreement extended protections under the ADA to all parents with disabilities involved with the DCF—not just those involved in court proceedings—it did not require the DCF to collaborate with parents with disabilities or those with lived experience in the child welfare system when developing policies or practices. The agreement mandated the creation of a new disability policy, as well as the development of an internal complaint process to address denials of accommodation requests and allegations of discriminatory practices, but it lacked other enforcement mechanisms or other remedies for noncompliance, essentially leaving the DCF to regulate itself.
The development of a new disability policy, issued in January 2022 and revised in March 2023 and again in September 2024, was an improvement for the Massachusetts child welfare agency. Mass. DCF, Disability Policy No. 23-04 (rev. Sept. 2024). Now there is a clear document outlining the responsibilities of the agency and the rights of parents when it comes to requesting accommodations and complaining about discriminatory treatment. While the policy is comprehensive and detailed and, like the settlement, applies to all DCF-involved parents with disabilities (id. at 2), it is also lengthy and cumbersome for the average case worker to apply to the delivery of services. In addition, the agency has chosen not to mandate training of all its staff on the policy, but instead to rely on training of managers and supervisors, in the hope that the requirements of the policy will trickle down through their supervision model to front-line workers. Advocates, attorneys, and parents have unfortunately not found this method to be effective, and even two and a half years after its promulgation, many case workers are either unaware of the existence of the policy or are failing to implement its requirements.
These developments in Massachusetts have led us to put forward the following strategies and suggestions for advocacy on behalf of parents with disabilities.
Identifying ADA Issues
When representing any parent or child in these complex cases, it is crucial to identify any potential disability or ADA issues, even if they are not explicitly labeled as such in the case file or recognized by your client. At the outset of a case, look for “red flags” in agency documents—such as phrases like “lack of insight,” “poor communication skills,” or “unable to cope/manage the child’s behavior.” These may indicate that the parent has a mental health or intellectual disability that the agency views as a character or parenting flaw, rather than recognizing it as a need for appropriate supports and services.
Meeting with your client and doing a thorough interview is, of course, key. Early in the case, take the time to understand your client’s history, particularly your client’s experiences in school, interactions with service providers, any diagnoses related to mental health or substance use issues, and how any disability presents in your client’s day-to-day life. Disabilities, particularly mental health issues, manifest differently in everyone, so it is essential to ask what your client finds helpful and supportive. School and medical records might also give you important clues about a disability or perceived disability that would qualify the client for ADA protection. Getting these records as soon as possible should be standard practice.
After thoroughly reviewing your client’s history and gaining insight from your client as an expert in his or her own life, it’s equally important to engage with your client’s providers and support system. Speak with individuals who have worked with or supported your client, both currently and in the past, to learn about the services provided, what the client needed, and what interventions were effective or ineffective. These discussions are key to ensuring that you, as the client’s advocate, are aware of supports and services the client has used in the past, and to identifying possible referrals for future services. If identifying necessary accommodations or services proves challenging, it may be beneficial to have your client evaluated for that specific purpose. Existing providers can help determine the type of evaluation needed and recommend the appropriate professional to conduct it. These efforts are essential to building a strong, informed case for your client’s rights under the ADA and ensuring that your client receives the support he or she deserves.
Early Action Steps
Regardless of your state statutes or requirements, it is still recommended that you document every request. In Massachusetts, case law suggests that a parent must notify the agency of the parent’s rights under the ADA early on in the case (Adoption of Gregory, 434 Mass. 117, 125–26 (2001)), and so it is standard practice to send an “ADA letter” to the agency indicating that a client is an individual with a disability who requires accommodation. We would go further to suggest that best practice is to put in writing the specific accommodations and aids, services, or adaptive equipment your client requires. While it is the agency’s responsibility to provide the accommodations, case workers who are untrained in disability issues are rarely able to identify what a client needs. It will typically be necessary for the advocate to use what the advocate has learned from the client to make the best possible suggestions when asking for accommodations from the agency.
If the child is still at home with family, ask the agency to identify the danger or risk of harm the agency believes could result in removal of the child. Can that risk be removed or mitigated by an accommodation or other intervention to support the family, rather than removing the child? Oftentimes, there is a perceived risk to a child that is directly related to the client’s disability and assumptions about that disability. This is a critical time to challenge those assumptions and stereotypes and insist on the agency’s compliance with an individual assessment and provision of services and supports. When engaging in safety planning with the agency—which should always include the parent’s full participation—also engage natural and professional supports for the client to help identify ways in which to reduce the risk of harm to the child while maintaining the child safely at home. At this stage, it is still the agency’s responsibility to make reasonable efforts—and therefore to provide reasonable modifications or accommodations—to prevent the removal of the child.
The Americans with Disabilities Act and Reasonable Efforts
Under federal law, every state’s child welfare agency has certain obligations to make “reasonable efforts” in its interactions with families. Adoption Assistance and Child Welfare Act, 42 U.S.C. § 671(a)(15), amended by Adoption and Safe Families Act, 42 U.S.C. § 670 (permitting some exceptions to requirements to make reasonable efforts). This includes making reasonable efforts to prevent the removal of the child from the child’s family, and if removal does occur, the agency must make reasonable efforts to reunify the family before seeking to terminate parental rights. Id. However, federal law does not define reasonable efforts so as to ensure that each family is considered on a case-by-case basis. 42 U.S.C. § 671(a)(15). When considering the rights of parents with disabilities under the ADA and the state’s obligation to provide a reasonable accommodation—such as ensuring access to services or effective communication—it becomes clear that the state’s actions constitute a failure. For example, if an accommodation is meant to level the playing field—such as providing a sign-language interpreter for a deaf parent attending a parenting class or ensuring wheelchair access at a visitation center—the agency’s failure to provide that accommodation means the agency has not made the necessary effort to support the parent. As a result, the parent is deprived of a fair opportunity to keep the family intact or reunify with the child. This is a violation of both federal law and state statutes mandating reasonable efforts. We strongly encourage all advocates to consider this key component in their representation and assistance of parents with disabilities in their state intervention cases.
Court-Involved Cases and ADA Advocacy
When a case is court-involved, it is crucial to remember that your client’s right to accommodations—including equal access and effective communication—extends to the judiciary. Ensure that your client receives reasonable accommodations during court proceedings. This could involve requesting short breaks, the use of visual aids, the presence of a supportive individual, or holding the session in a smaller, quieter courtroom to minimize distractions. Making these requests early in the process sets the tone and establishes the narrative that your client is an individual with a disability entitled to specific rights under federal law. Both the agency and the courts are legally required to uphold these rights. This approach offers an opportunity to shift the perspective regarding your client—from someone perceived as failing to someone in need of and deserving support.
As a case moves through the courts, it is essential to raise ADA issues and request reasonable accommodations at every stage and opportunity. Accommodations must be implemented before any assessment of a parent’s unfitness is conducted. Without them, there is a significant risk that agency workers and courts will base their determinations on biases or assumptions about the parent’s disability. The court should evaluate a parent’s fitness only after the parent’s needs have been accommodated and appropriate services have been provided. This approach increases the likelihood of reducing any perceived risk to the child and may even support a finding of parental fitness.
If your jurisdiction permits it, filing a motion for ADA-compliant or accessible services (or a motion for reasonable efforts) may be not only appropriate but advisable. The agency should be reevaluating the needs of the family it is working with at many junctures in the case and reconsidering various reasonable accommodations for the parent with a disability. If a parent requires more time to learn certain parenting skills—diapering and bathing an infant, for example—then a motion for expanded parenting time and the assistance of a parent aid to model those activities may be appropriate. A further accommodation of a visual aid for the parent at home or at the visits may also increase the parent’s ability to master that skill in less time, ultimately improving the parent’s capacity to parent the infant child and reducing the time before the child can be placed at home. Ensuring that the court sees that the agency’s failure to meet the requirement of reasonable efforts for a parent can change the trajectory of a case and, hopefully, result in better outcomes for the family.
It is crucial to be well versed in your agency’s obligations under any existing policy or regulation. Leverage these protections whenever possible in your cases and be sure to highlight the agency’s failures to meet policy standards when filing with the court. The DOJ’s findings in the Sara Gordon case, along with the settlement agreement with the Massachusetts DCF, can serve as persuasive authority in any jurisdiction because they reflect an application of federal law. See also the Department of Justice’s guidance, Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for Child Welfare Agencies and Courts (Aug. 2015, rev. June 2020). Bringing deficiencies to the judge’s attention is a critical step toward securing a “no reasonable efforts” finding. See generally Judge Leonard Edwards, “Overcoming Barriers to Making Meaningful Reasonable Efforts Findings,” Child L. Prac. Today (2019) (explaining situations when a “no reasonable efforts” findings can be made and what the implications of the findings are). This, in turn, can lead to court-ordered directives requiring the agency to better address the family’s needs and ensure compliance with the ADA.
Finally, in advocating for your client, always focus on whether the agency workers and courts are making decisions based on individualized situations and on facts related to parenting capacity and functioning, not on bias or disability alone. These cases require a connection—or nexus—between parental disability and actual harm to the child, not mere assumption or perceived risk. Use the ADA to push the agency into compliance at each and every turn possible. Do not wait for case workers to identify accommodations that your client needs—time is always of the essence in these cases, either to prevent removal or to return a child home. If you can identify a service, support, or aid that will benefit your client, ask for it. Making a request of the agency does not mean that is the only request you can make—individualized assessment and treatment mean that every situation is analyzed and can lead to multiple accommodations and changes in those services over the life of the case. Also identify any accommodations available for a disabled child that can improve the parent’s access to or parenting of that child—the ADA also applies to children with disabilities involved with state child welfare. And if your state agency refuses to comply with the provisions of the ADA, fails to provide your client with identifiable reasonable accommodations, and has not provided your client with services appropriate to your client’s disability, file a complaint with the DOJ, and do so as soon as there is an issue. The DOJ’s investigation can take months, and regular communication between the parent client, you as the attorney, and the DOJ attorney is crucial. Ensure your client is willing to sign releases that will allow the DOJ to access your client’s file with the state agency to avoid obstacles to a full investigation.
The Important Role of Parent Peer Partners
Parent peer partners—individuals who have personally experienced state child welfare intervention—play a vital role in supporting parents, especially those with disabilities, as they navigate the system. Having faced these challenges themselves, these peers offer a level of empathy and guidance, and a unique understanding that professionals cannot offer. For parents with disabilities, this support can be transformative. Parent peers intimately understand the emotional toll and the complexities of challenging a system that often misunderstands or undervalues a parent’s abilities. By sharing their lived experiences, peers can empower parents with disabilities to advocate for their rights, including identifying the reasonable accommodations parents may need as guaranteed under ADA. In addition, the perspective of those with lived experience can positively influence how child welfare agencies approach disability, offering a model of resilience and capability that challenges stereotypes and biases. The presence of a parent peer can help parents with disabilities feel more connected, less isolated, and potentially less fearful of the child welfare system. The inclusion of parent peer partners in advocacy efforts for parents with disabilities is an invaluable tool to fight discrimination that must not be underestimated.
Conclusion
Despite the ADA’s protections, state intervention in families where a parent has a disability remains a significant issue. Parents with disabilities are disproportionately involved in the child welfare system and their parental rights are terminated, especially those with intellectual or psychiatric disabilities, at much higher rates than the rights of non-disabled parents. These disparities are often driven by implicit bias and the failure of states to adequately follow ADA guidelines in child welfare proceedings. To address this reality, many states have passed protective legislation; Massachusetts has developed a disability policy as a result of an agreement with the federal government; and, most recently, the Children’s Bureau, the HHS, and the DOJ have issued joint guidance to state and local child welfare agencies and courts on the requirements of the ADA to help ensure compliance with federal nondiscrimination laws. The last decade has seen increased availability of a variety of resources for parents with disabilities and their advocates involved in the family courts and child welfare. There is also now more and current data available regarding parents with disabilities in the U.S. and their representation in the child welfare system than ever before.
But despite all this progress and change, the experience of parents with disabilities in this harmful system has not necessarily improved, nor have they felt the impact of their legal protections under the ADA. Much work remains, both in pushing for greater enforcement of the ADA in the child welfare system, in including parents with lived experience in the development of programs and policies, and in increasing awareness of the rights of parents with disabilities in courts and among agency workers. Putting the ADA to work on behalf of parents and children with disabilities provides a path forward and reinforces that parents with disabilities deserve the right to raise their children free from discrimination and unwanted state intervention.
