Millions of Americans with disabilities have gained innumerable rights and opportunities since Congress passed landmark legislation on their behalf in 1990. And yet advocates say barriers and bias still abound when it comes to one basic human right: To be a parent.
A Kansas City, Mo., couple had their daughter taken into custody by the state two days after her birth because both parents were blind. A Chicago mother, because she is quadriplegic, endured an 18-month legal battle to keep custody of her young son. A California woman paid an advance fee to an adoption agency, then was told she might be unfit to adopt because she has cerebral palsy.
Such cases are found nationwide, according to a new report by the National Council on Disability, an independent federal agency. The 445-page document is viewed by the disability-rights community as by far the most comprehensive ever on the topic — simultaneously an encyclopedic accounting of the status quo and an emotional plea for change.
“Parents with disabilities continue to be the only distinct community that has to fight to retain — and sometimes gain — custody of their own children,” said autism-rights activist Ari Ne’eman, a member of the council. “The need to correct this unfair bias could not be more urgent or clear.”
The U.S. legal system is not adequately protecting the rights of parents with disabilities, the report says, citing child welfare laws in most states allowing courts to determine that a parent is unfit on the basis of a disability. Terminating parental rights on such grounds “clearly violates” the intent of the 1990 Americans with Disabilities Act, the report contends.
Child-welfare experts, responding to the report, said they shared its goals of expanding supports for disabled parents and striving to keep their families together. But they said removals of children from their parents — notably in cases of significant intellectual disabilities — are sometimes necessary even if wrenching.
“At the end of the day, the child’s interest in having permanence and stability has to be the priority over the interests of their parents,” said Judith Schagrin, a veteran child-welfare administrator in Maryland.
In the bulk of difficult cases, ensuring vital support for disabled parents may be all that’s needed to eliminate risks or lessen problems, many advocates say.
The new report, titled “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children,” estimates that 6.1 million U.S. children have disabled parents. It says these parents are more at risk than other parents of losing custody of their children, including removal rates as high as 80 percent for parents with psychiatric or intellectual disabilities.
The report praises a few states — including Idaho, Kansas and California — for modifying child-custody laws to the benefit of disabled parents. It urges Congress to amend the Americans with Disabilities Act to add protections for parents, and it calls on state lawmakers to eliminate disability as a distinct ground for terminating parental rights.
Christine Waters, an attorney with Legal Services of Central New York, based in Syracuse, worked with colleagues in 2008-09 in a bid to change the state law specifying that parental rights can be terminated if a parent has psychiatric problems or is intellectually impaired. Some legislators expressed support, Waters said, but the effort ultimately failed.
“Everything would look like it was going fine ... and then there would be some well-publicized, awful incident where someone who had a mental illness — without support — did something shocking and horrible, and a child was seriously harmed or died and we’d be back to square one,” Waters said.
Waters said some child-welfare officials resisted any change, wary of being held responsible if something went wrong.
The assumption that people with disabilities can’t parent “is bad for society and heartbreaking for families,” Waters said. “The easy thing is to terminate the parental rights. We need to do the right thing, not the easy thing.”
Disabled parents whose parenting ability comes into question often are placed at a disadvantage by parenting assessments that are inappropriate or unfair, the report says. It calls for better research to improve assessment standards and gain more knowledge about how various disabilities affect the ability to be an effective parent.
National Council on Disability report: http://www.ncd.gov/newsroom/09272012