March 01, 2015

Federal Agencies Say State Cannot Discriminate Against Parents with Disabilities

Robyn Powell

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.

In a move expected to have a strong impact on the lives of parents with disabilities and their children, the United States Departments of Justice and Health and Human Services (Departments) recently issued a joint Letter of Findings.  The letter follows an investigation of the Massachusetts Department of Children and Families (DCF) and its handling of a mother with a developmental disability. The Departments found that DCF illegally discriminated against the mother based on her disability, violating Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). 

This article provides an overview of the findings and their anticipated wide-ranging impact on parents with disabilities in the child welfare system. It briefly discusses the investigation and findings, and the expected impact of the Departments’ involvement as it relates to parents with disabilities, and provides information on how to file similar complaints.

The Investigation & Findings

Sara Gordon, a pseudonym, is a 21-year-old woman with developmental disability. In November 2012, Ms. Gordon gave birth to her daughter. Two days later, while still in the hospital, DCF removed the baby from Ms. Gordon’s custody. Ms. Gordon lives with her parents, who have expressly stated their intent to provide her support in parenting her child. Indeed, Ms. Gordon’s mother quit her job to provide full-time support for Ms. Gordon and her baby. Ms. Gordon has fought to retain custody of her daughter for more than two years. During this time, DCF has only allowed minimal supervised visitation. Notably, several professionals have reviewed this case and found that a family-supported parenting plan with Ms. Gordon’s parents would be appropriate. 

On June 30, 2014, the Office for Civil Rights, U.S. Department of Health and Human Services (OCR) notified DCF that it had opened an investigation of a complaint filed by Ms. Gordon under Title II and Section 504 and had requested additional information. On August 20, 2014, the Disability Rights Section, Civil Rights Division, U.S. Department of Justice (DRS) notified DCF that it, too, had opened an investigation of the services DCF provides to people with disabilities and the removal and subsequent placement of Ms. Gordon’s daughter, and also requested additional information regarding the case and DCF’s policies. According to the findings, DCF has failed to fully comply with their request for information. 

Based on their investigation, the Departments found that, “DCF has repeatedly and continuously denied Ms. Gordon the opportunity to participate in and benefit from its services, programs, and activities, and has otherwise subjected her to discrimination in violation of Title II…[and] Section 504.” According to the findings,

Initially, DCF failed to individually analyze Ms. Gordon to determine what services and supports were appropriate for her in an effort to prevent Dana’s continued out-of-home placement. DCF then failed to (1) implement appropriate reunification services while Dana was in foster care; (2) identify appropriate service plan tasks; (3) assist Ms. Gordon in meeting service plan tasks to achieve reunification; (4) provide meaningful visitation and opportunities to enhance Ms. Gordon’s parenting skills; and (5) impose only necessary and legitimate safety requirements.

Therefore, the Departments instructed DCF to:

  • withdraw the termination of parental rights petition and take all necessary actions to address the violations identified in the findings, including implementing appropriate supports and services; 

  • pay compensatory damages to Ms. Gordon in an appropriate amount for injuries suffered because of DCF’s failure to comply with the ADA and Section 504; and 

  • develop and implement procedures addressing how ADA and Section 504 requirements apply to DCF and implement a training program for all investigators, social workers, family resource workers, supervisors, and Area Program Managers on compliance with Title II and Section 504. 

Should DCF fail to comply, the Attorney General may initiate litigation pursuant to the ADA and Section 504.

The Impact

Advocates expect the Departments’ findings to have a far-reaching effect for parents with disabilities and their children. As documented by the National Council on Disability’s 2012 report, “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children,” parents with disabilities face significant and pervasive discrimination by the child welfare system. Indeed, 25 years after the passage of the ADA, parents with disabilities often still must struggle to retain—or even gain in some situations—custody of their children. Regrettably, despite the ADA and Section 504’s obvious application to the child welfare system, state courts and child welfare agencies have continued to disregard these important laws and their legal obligations. 

The Departments’ action in Ms. Gordon’s case is historic because it is the first time either agency has affirmatively stated the ADA and Section 504 apply to the child welfare system. In sum, the findings state that parents with disabilities have the right to have appropriate supports and not have their child removed solely because of their disability. Although this case occurred in Massachusetts, this type of discrimination is happening across the country and the findings should be applied broadly.

How to File Complaints

As attorneys, you play an integral and challenging role in ensuring these families are afforded the rights they deserve. As Ms. Gordon’s case shows, filing complaints with DOJ and OCR can be an invaluable tool in your toolbox. Attorneys should considering filing complaints with both Departments if they believe that the state child welfare agency has discriminated against their client based on disability, including if the parent has been denied a reasonable accommodation.

DOJ has jurisdiction to investigate and enforce the ADA if a state or local government (including a state child welfare agency) or place of public accommodation has discriminated against a person with a disability. Attorneys can assist their clients with filing a complaint with DOJ. Complaints can be filed electronically or by mail (for more information, visit http://www.ada.gov/filing_complaint.htm). In addition to the parent’s contact information, complaints should include a brief description of the acts of discrimination, including the dates they occurred and the names of individuals involved; and any supporting documentation. Due to the large volume of complaints DOJ receives, it may take up to three months for the agency to review.

Similarly, OCR can investigate disability-based discrimination complaints based on ADA and Section 504 violations against health and human services programs, including state child welfare agencies. Typically, complaints must be filed within 180 days from the date of the alleged discriminatory act unless good cause for the delay can be demonstrated. Attorneys can assist their clients in filing complaints with OCR electronically or by mail (for more information, visit http://www.hhs.gov/ocr/civilrights/complaints/index.html). In addition to the parent’s contact information, these complaints should also include a brief description of the alleged discrimination; names and contact information of the agency that discriminated against the parent; and any supporting evidence.

Robyn Powell, JD, is an attorney advisor at the National Council on Disability (NCD), an independent federal agency that advises the President and Congress on matters concerning people with disabilities, and principal author of NCD’s Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and their Children. Ms. Powell is currently pursuing her PhD at the Heller School for Social Policy and Management at Brandeis University and holds a Bachelor of Science degree in Social Work from Bridgewater State University and a Juris Doctor from Suffolk University Law School.