The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
A mother with cerebral palsy gives birth to a baby girl. Lacking information about parenting with cerebral palsy, a nurse reports the mother to child protective services. The child is removed from the mother’s custody and child protection proceedings begin. The mother is devastated.
In the United States, at least 4.1 million parents with documented disabilities have children under age 18, according Robyn Powell, attorney advisor at the National Council on Disability in Washington, DC. Many of these parents can successfully raise their children with accommodations and supports. Too often, however, they experience bias and discrimination and lose custody or rights to their children because of their disabilities.
At an ABA webinar on November 13, 2014, Powell was joined by Ella Callow, legal programs director at the National Center for Parents with Disabilities in Berkeley, CA, and Katherine Nemens, supervising attorney, Clubhouse Family Legal Support Project, Mental Health Legal Advisors Committee, Boston, MA. They shared tips on representing parents with disabilities in dependency and family court cases.
Parenting with a Disability
Discrimination and unfair treatment of parents with disabilities can be traced to the early 1900s when many were denied parenthood through institutionalization or forced sterilization, according to Callow. Laws and policies shifted between the 1970s-1990s making it easier for parents with disabilities to be deemed unfit to parent and face automatic removals of their children.
Powell shared current removal statistics reported in the National Council on Disabilities’ recent report Rocking the Cradle (see Related Material):
- Removal rates of children from parents with psychiatric disabilities are as high as 70-80%.
- Child removal rates from parents with intellectual disabilities are as high as 80%.
- Parents with physical or sensory disabilities (blind, deaf, hard of hearing, low vision, deaf-blind) face high removal rates and loss of parental rights.
Automatic bypass of family reunification services and streamlined efforts to terminate rights of parents with disabilities are also common. State laws have helped shaped these trends, said Powell. More than two-thirds of dependency statutes include disability as a ground to terminate parental rights. And in every state, parental disability may be considered when determining the best interests of a child in a family or dependency court case, she said.
Bias and stigma by judges and attorneys lacking knowledge or understanding of disabilities and mental health issues for parents also lead to poor outcomes for many parents with disabilities.
Across family and juvenile dependency courts, parents with disabilities face challenges. Powell highlighted barriers in family court while Callow covered those in dependency court.
Bias/speculation in best interests determinations. In family law cases, such as child custody and visitation disputes, the parent’s disability may be considered when determining the best interests of the child in all states, said Powell. This often results in bias and speculation based on the parent’s disability. Parents with disabilities are more likely to lose custody of their children after a divorce. As a result, said Powell, many parents end up staying in bad, sometimes abusive, marriages for fear of losing their children.
No harm requirement. To clarify the meaning of the best interests of the child standard, many states have adopted the model custody language proposed by the Uniform Marriage and Divorce Act, said Powell. The act includes “the mental and physical health of all individuals involved” as a factor courts can consider when determining the best interests of the child. There is no requirement that the disability be shown to be causing harm to the child, therefore courts can base custody and visitation decisions on the parent’s disability alone.
Conflicting case law. Court opinions reflect ambivalence about the best interest standard, said Powell. She cited two commonly cited court cases as examples. In In re Marriage of Carney, 598 P.2d 36 (Cal. 1979), the California Supreme Court held a father’s disability did not prevent him from engaging with and maintaining a bond with his child. In that case the court held the father’s disability should not be considered in the custody determination. However, this view has not been consistently enforced, said Powell, and many parents with disabilities continue to experience discrimination in child custody or visitation matters.
Powell contrasted Carney with Holtz v. Holtz, 595 N.W.2d 1 (N.D. 1999). In that case, the North Dakota Supreme Court held it was in a child’s best interests to award custody to the father over the mother who suffered from an intellectual disability. Although the father had a history of anger issues and had had little contact with his child, the court weighed the mother’s disability and found it would be in the child’s best interests for the father to receive custody.
The cases, decided 20 years apart, reflect ongoing uncertainty about how parental disability factors into best interests decisions in family law cases, said Powell.
Callow explained how parents with disabilities fare in civil dependency courts, noting that parenting is a civil right long established in U.S. jurisprudence. She added that several U.S. Supreme Court cases have held that states may intervene to protect children only if the parent is unfit.
Although every state recognizes this standard, Callow said 37 states explicitly allow parental disability as a ground for removal, termination of parental rights, and/or automatic bypass of reunification services. These grounds are allowed because of the belief that courts never intervene without a nexus between the parent’s disability and the child’s safety. In practice, the nexus is often not there, said Callow.
ADA protections and limits. Among the ADA’s protections for parents in dependency cases, agencies must make reasonable accommodations for people with disabilities in their practices, policies, and procedures, said Callow. Equal access to programs, services, and activities must also be provided to people with disabilities.
Among the ADA’s limits, most courts have held the ADA is not a defense to termination of parental rights. This has led to a misconception that Title II of the ADA requiring accommodations for people with disabilities does not apply to child welfare cases. Another challenge is that the ADA did not fix a 1985 U.S. Supreme Court ruling in Cleburne v. Cleburne, 473 U.S. 432, requiring no strict scrutiny of discriminatory state disability laws.
ASFA protections and limits. The 1997 federal Adoption and Safe Families Act (ASFA) governing child welfare proceedings also protects parents with disabilities in dependency cases but has some limitations, said Callow. An example is ASFA’s requirement to provide parents reasonable services to address their parenting issues, which conflicts with its provision allowing bypass of reunification efforts based a parent’s disability. Callow explained that ASFA lists mental disability and mental illness as aggravated circumstances allowing for bypass of reunification services.
ASFA’s shortened permanency timelines also set unrealistic expectations for parents with disabilities and conflict with the ADA by not providing accommodations and flexibility for these parents. Most parents with disabilities need to start services earlier, receive them more often, and use them for a longer period to address their issues and successfully reunify with their children, said Callow. She cited an exception to the ASFA timeline in 32 states to file for termination of parental rights when the parent has not been provided reunification services required in the case plan. She urged practitioners in these states to get the proper accommodations and services into the parent’s case plan early to create flexibility around TPR filings.
Strategies and Solutions
Lawyers need to be creative when representing parents with disabilities. The panelists offered the following guidance to address common barriers and ensure parents with disabilities are given a fair chance to raise their children.
1. Seek modifications and accommodations.
Lack of accommodations for parents’ disabilities create hurdles that are hard for many parents to overcome. “You need to be able to show that the parent is successful at being able to use and benefit from services and accommodations,” said Powell. She offered the following strategies in dependency and family court matters:
Show the parent is successful at using a service. When the state is providing accommodations for the parent’s disabilities, show how the parent is succeeding and benefitting from those services. This can counter arguments related to the parent’s fitness.
Identify services or accommodations that are not being provided. At permanency hearings, draw the court’s attention to missing services that would benefit the parent. If the case proceeds to termination and you can show services or accommodations were not provided it can help show that termination is premature.
Make sure accommodations get into the service plan early. You can question the case plan. Make written comments on the service plan, and ask for specific accommodations you believe will help the parent succeed.
Challenge decisions not to provide accommodations. If the state is not providing or paying attention to accommodations, file a grievance with the child welfare agency. If that doesn’t work, consider filing a motion for an abuse of discretion with the court. These motions may not succeed, but in the interest of using accommodation issues at trial, it’s worth pursuing them early in the case to draw attention to the fact that the state is not providing them to your client.
Question the state agency decision maker (e.g., social worker’s supervisor) on their decision not to provide a service or accommodation. Ask: How did you decide a requested service or accommodation didn’t need to be provided?
In family courts, there is no specific requirement that anyone provide accommodations to parents with disabilities, said Powell. The state is not a party to the proceedings in the way it is in child dependency proceedings, there is no duty by the state to provide reasonable efforts to reunify the parent and child, and the case involves the best interests of the child standard. Therefore, it is harder to argue for accommodations. Two arguments to make:
Focus on the parent’s ability to mitigate the harm or potential harm that’s being alleged to the child in connection with the parent’s disability. Pay attention to the evidence that you can create when advocating for your client, connecting them with the right services, and pushing the court to pay attention to services and to focus on parenting ability not just the existence of a disability.
Seek court-related accommodations. Courts can provide accommodations to ease the court process for parents. These include accommodations around parents’ responses to discovery, the time of day a court hearing will occur, transportation to court, and courtroom modifications such as accessibility improvements, interpreters, support people, etc.
2. Be a zealous parent advocate.
Nemens encouraged advocates to focus on their relationship with and understanding of their parent clients’ specific disabilities, needs, and parenting capacities.
Know your client well. Particularly when dealing with a psychiatric disability, you need to know the specifics of your client’s diagnosis. You can look it up in the Diagnostic Statistical Manual V to get information on the diagnosis. It’s important to know the specifics for your client:
- What do the symptoms look like for the parent?
- What are some triggers?
- What individual challenges does the parent have and what services can be put in place to alleviate those challenges relating to their parenting?
Know what medications your client is taking, the side effects, and how they may affect parenting. Many medications cause as much damage to the people who take them as they help. The side effects can be brutal, yet a wide range of side-effects are considered acceptable for many medications. Be aware of them and ensure they are not misinterpreted (e.g., an assumption that slurred speech means the parenting is using again).
Know who your client is working with—their providers, and their peer and professional support systems. Peers can play an important role serving as mentors to parents as they go through the child welfare system or a highly contested custody case. It’s important to use provider and peer support networks for referrals to other services to assist your client, parenting groups, and education opportunities.
Focus on your client’s parenting strengths and abilities. Identify how services and supports that are in place for the parent can be supplemented or highlight the parent’s strengths and abilities. For example, rather than dwelling on a client’s mental health diagnosis, focus on parenting ability. Ask: Does the parent have the capacity to spend time with her child in an appropriate manner?
Encourage providers and peers to be advocates themselves. Service providers and peer supports can assist in the legal case as long as they don’t overstep their bounds and focus on their area of expertise. It’s important to know the evidentiary standards around mental health records and psychotherapist-patient privilege. Also know the rules and case law around addressing evaluations and assessments, competence, and capacity.
3. Understand what makes a quality parent evaluation.
Courts often base decisions about parents’ ability to care for and raise their children on parenting assessments and tests that are not grounded in best practice or evidence, according to Callow. She explained the dangers when such tests are misused and urged advocates to ensure courts rely on evidence-based parent evaluations.
Know the pitfalls of IQ testing. IQ testing is often misused to argue that a parent with a disability cannot be a good parent. Callow cautioned that IQ testing is a “pseudoscientific approach,” meaning it pretends to be or resemble science but is not. “Twenty years of research have shown no correlation exists between IQ and parenting ability until the IQ score drops below 50,” said Callow. Despite this research, she noted that between 60-80% of parents with disabilities involved in the child welfare system lose their children. IQ testing is frequently relied on by courts in these cases.
Scrutinize parent evaluations and parent-child assessments. Many evaluations of parents with disabilities are not evidence-based (see box above) and do not meet best practice, said Callow. She cited a review of parent evaluations performed across the country that showed:
- attitudinal bias in 67% of evaluations (negative comments about parents, inappropriate terminology, assumptions, speculation and prejudice),
deficiencies in the writing in 66% (poor English grammar and writing),
- use of inappropriate test measures in 71%,
- failure to observe the parent and child together in 69% (the “gold standard” of an effective parent-child evaluation).
The ADA and American Psychological Association guidelines set best practices for performing parenting evaluations and minimum competencies for those performing them, said Callow. She urged advocates to ensure evaluations meet these standards and to challenge them in court when they are not being followed.
Advocates can be the catalyst for parents with disabilities, ensuring their rights are protected and they are given a fair opportunity to raise their children. Through creative and early efforts to secure accommodations and modifications for individuals with disabilities, barriers to parenting can be overcome. Parent advocates can also help dismantle bias and speculation among professionals about parents with disabilities by challenging decisions, educating them on the law and parents’ rights, and sharing success stories involving parents with disabilities.
View the ABA webinar, “Representing Parents with Disabilities in Custody Cases: Best Practices,” presented on November 13, 1014.
Sidebar: Representing Parents with Disabilities
Advocates can request the following modifications and accommodations for parents with disabilities:
- Increase the frequency or length of service provision.
- Ensure the service provider has experience working with parents and the specific disability at issue in the case.
- Provide services at a parent’s home or alternate accessible site. If the parent uses a wheelchair, make sure the parent can enter the location where the service is provided.
- Give the parent frequent reminders for services.
- Provide accessible transportation to services.
- Provide information about services in an accessible format (large print, audio tape, braille, digital format).
- Offer note taking of meetings and court activities, especially for parents who are deaf or hard of hearing.
- Provide assistance with reading materials and interpreters if needed.
- Provide day care and respite care services, particularly for parents with psychiatric disabilities who may need to be hospitalized for medication changes.
- Provide foster family or informal support networks (churches, family helper or child care assistant, aide or personal assistant).
- Arrange housekeeping services.
- Arrange adaptive equipment (ramps, lowered counters, adapted doorknobs).
Sidebar: Representation Checklist
Seek modifications and accommodations.
- Show the parent’s success at using a service.
- Identify services/accommodations not being provided.
- Ensure accommodations are in the service plan early.
- Ask the caseworker why services and accommodations are not being provided.
- Focus on the parent’s ability to mitigate harm to child.
- Seek court-related accommodations.
Be a zealous parent advocate.
Know your client.
- Know what medications your client is taking.
- Know your client’s providers and support networks.
Encourage providers and supportive people to advocate for the parent.
- Focus on parenting strengths and abilities, not the parent’s disability alone.
- Ensure quality parent evaluations are used.
- Be weary of parent IQ testing.
Scrutinize parent evaluations and assessments.
- Ensure based parent assessments are evidence-based.
- Ensure parent evaluators have experience and specialized training.
Sidebar: Rocking the Cradle
Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and their Children, published by the federal National Council on Disability in 2012, is a must-have resource for parent advocates. The report includes a comprehensive review of the rights of parents with disabilities and their children. It is a good advocacy tool and is cited in court opinions in child welfare, family law, adoption, and assisted reproductive technology cases.
It includes interviews with experts and parents with disabilities, model
legislation, and practice and policy strategies.
Claire Chiamulera is CLP’s editor.