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In its new report, “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children,” issued September 2012, the National Council on Disability closely studies the experiences of parents with disabilities and their families. The report highlights systemic barriers these parents face when creating and maintaining families.
Among the proposed solutions is legislative reform. The report highlights states that are leading the way reforming their state statutes governing custody of children in dependency and family court proceedings. Summaries, adapted from the report, appear below:
The Idaho State Independent Living Council (SILC) undertook a groundbreaking effort to change legislation that was devastating the lives of parents with disabilities and their families. As a grassroots organization, the Idaho SILC gathers information on the issues most important to its consumers and includes these issues in its annual State Plan on Independent Living. In 2000, many consumers reported a rising fear of unjustified removals of children from their parents with disabilities. Led by Kelly Buckland, the executive director of Idaho SILC at the time, the Fathers and Mothers Independently Living with their Youth (FAMILY) Committee was established to address this problem.
In collaboration with Through the Looking Glass and local legislators, the FAMILY Committee drafted legislation for introduction during the 2000 state legislative session. Two attempts to pass the legislation in 2000 and 2001 failed. Eventually, four successful bills were passed over the 2002 and 2003 legislative sessions, modifying every custody-related section of the Idaho Statutes.
Collectively, these bills addressed attitudinal bias; lack of knowledge of disability, adaptive equipment, and services; problems in the production of good evidence and the challenge of bad evidence; and laws leading to discrimination by allowing the removal of a child without showing a nexus between the disability and detriment to the child. The bills made the following language additions and removals in the divorce, separation, and dependency statutes:
- Added a nondiscrimination statement regarding parents with
- Defined “disability, supportive services, and adaptive equipment.”
- Added a section that makes evidence relevant and admissible regarding the services and adaptive equipment available to enable parents with a disability to care for their children.
- Added language requiring anyone who conducts a parenting evaluation to consider the use of adaptive equipment and supportive services for parents with disabilities and requiring the evaluator to have (or be assisted by someone who has) expertise in such equipment and services.
- Removed references to disability as a factor to be considered in custody determinations.
- Added a section requiring a written statement by the court should it decide that disability is a relevant factor in a custody determination.
- Because of the FAMILY Committee’s efforts, statutes governing adoption and probate guardianships of children were also modified.
Two cases involving the new legislation have reached the appellate level. In Doe v. Doe, the court was unable to reach the merits of the case because it determined the new legislation was not to be applied retroactively. In Lieurance-Ross v. Ross, a father appealed the decision of a family court magistrate that he could not be awarded custody of his children because he had a general guardianship as a result of stroke-impaired cognitive functioning. In a decision that demonstrated what the court had learned from the new legislation, the conclusion included a discussion of adaptive parenting equipment and services and stated the following:
“[Because] a parent with a guardian is not precluded from seeking custody of his or her child, we see no reason to apply Section 32-717(2) differently in situations where a parent with a disability has a guardian from those situations where a parent with a disability does not have a guardian. In either scenario, the court is required to make findings regarding the effect the disability has on the parent’s ability to carry out parenting responsibilities and whether adaptive equipment or supportive services can compensate for those aspects of the disability that affect the parent’s ability to care for his or her child.”
The State Independent Living Council of Kansas (SILCK) embarked on a process of protecting the rights of parents with disabilities and their families through legislative amendment. Following the 2003 Kansas Disability Conference, at which numerous parents with disabilities shared stories of losing their parental rights, SILCK pursued this injustice during the 2004 legislative session.
Over the previous seven years, the Judicial Council had focused on revising the Kansas Code for Child in Need of Care (CINC). Although the council had not considered the issue of discrimination against parents with disabilities, SILCK secured technical assistance from Ella Callow, director of Through the Looking Glass’s legal program, and engaged members of the council to support the proposed changes. Nondiscriminatory language had not been included in the original bill, but testimony from SILCK to amend and add such language was supported by attorneys, Judicial Council members, and the state Judiciary Committee.
As a result of the timing of the CINC revision project, SILCK was able to introduce and pass effective remedial legislation for parents with disabilities and their families swiftly and without much revision. SB 230 passed during the 2005 legislative session and went into effect in 2006. This legislation included four significant safeguards for parents with disabilities in the new Chapter 38 of Article 22 “The Revised Kansas Code for Care of Children.” These safeguards addressed issues of attitudinal bias; lack of knowledge of adaptive equipment; problems in the production of good evidence and the challenge of bad evidence; and laws that led to discrimination by allowing the removal of a child without showing a link between the parent’s disability and detriment to the child.
The legislation added the following language:
A nondiscrimination statement regarding parents with disabilities that more fully encompassed them in the policy directive to protect the privacy and unity of the family.
- A statement that the disability of a parent will not constitute a ground for finding the child dependent or for removing the child from the parent without a specific showing of a causal relationship between the disability and harm to the child.
- A statement that the disability of a parent will not constitute a ground for terminating the parental rights of a parent with a disability without a specific showing of a causal relationship between the disability and harm to the child.
- A mandate that custody determinations under the code will consider the availability and use of accommodations, specifically adaptive equipment and support services.
While more limited in scope (because it was part of a revision of one specific code—the dependency code), the Kansas legislation includes some significant protections for parents with disabilities. Because it requires that causation between harm to the child and the disability be established, the code principally necessitates the provision of proper services and the performance of adapted evaluations and assessments. These legislative changes set the stage for modification of other relevant Kansas codes, such as those affecting domestic relations, adoption, and guardianship.
Other State Efforts
Acknowledging the importance of adaptive baby care equipment for some parents with disabilities, California’s Protection and Advocacy system, in collaboration with Through the Looking Glass, sponsored AB 2152 in 2000. This legislation caused adaptive baby care equipment to be included in the list of durable medical equipment covered by Medi-Cal (California’s Medicaid program).
California’s legislation is groundbreaking because it expands references to “conditions that interfere with normal activity” to include those that interfere with the ability to parent; identifies such conditions as meeting the definition of significant disability and thus rendering services medically necessary; and expands the rights of Medi-Cal beneficiaries to include receiving adaptive parenting equipment within the definition of durable medical equipment.
On July 12, 2011, Missouri Governor Jay Nixon signed into law HB604 and SB555, which strengthen the rights of parents with disabilities and their families. These bills came on the heels of a recent case in which a couple lost custody of their daughter for 57 days because they were blind. This legislation prohibits discrimination on the basis of disability “without a specific showing that there is a causal relationship between the disability or disease and a substantial and significant risk of harm to a child.” The legislation applies to termination of parental rights and custody as well as foster and adoptive parents.
In 2009, Maryland passed legislation protecting the rights of parents with disabilities. HB 689/SB 613 prohibits discrimination on the basis of disability against parents, guardians, or caregivers who are involved in adoption, custody, or Children in Need of Assistance cases.
In 2007, Vermont changed its state law, which now includes language mandating that in child welfare, there should be an appropriate balance between protecting children and respecting the rights of a parent or guardian, including a parent or guardian with disabilities, and recognizes that people with a disability can be successful parents. The rules also include the possible use of adaptive equipment and supports.
The Vermont state statute requires that the strengths and needs of parents with disabilities be considered in child welfare proceedings. Specifically, Vermont State Code 52 § 4922(b) states: “The rules shall strike an appropriate balance between protecting children and respecting the rights of a parent or guardian, including a parent or guardian with disabilities, and shall recognize that persons with a disability can be successful parents. The rules shall include the possible use of adaptive equipment and supports.”
Rhode Island eliminated disability language in its termination of parental rights statute in 2000.
In 1997, Arkansas wrote the ADA into its child welfare statute. Pursuant to Ark. Code Ann. § 9-27-341, a court may terminate parental rights only after it has found by clear and convincing evidence that “despite a meaningful effort…to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent”; provided, however, that “the department shall make reasonable accommodations in accordance with the Americans with Disabilities Act…to parents with disabilities in order to allow them meaningful access to reunification and family preservation services.”
Endnotes omitted. See the report for full citations.