Parents with Disabilities in the United States: Prevalence, Perspectives, and a Proposal for Legislative Change to Protect the Right to Family in the Disability Community

Abstract

Jacobus tenBroek Disability Law Symposium I. INTRODUCTION 10 II. The Law and History 11 A. Dependency Law 11 B. Family Law 12 C. The History of Parenting in Communities of Disability 13 III. THE POPULATION OF PARENTS WITH A DISABILITY AND RATES OF REMOVAL 15 IV. THE CAUSES OF UNNECESSARY REMOVALS 17 A. Attitudinal Bias 17 B. Lack of Disability Awareness and Knowledge Regarding Adaptive Equipment and Services 18 C. Barriers to Meaningful Participation in the Process 20 D. Evidence 21 E. Law 22 F. Cost 23 V. THE EFFECT OF UNNECESSARY REMOVALS ON CHILDREN 23 A. Separation from the Primary Caretaker 23 B. Special Issues in Dependency Cases 24 C. What About Family Law Cases? 27 VI. REMEDIAL STATE AND FEDERAL LEGISLATION OF INTEREST .......28 A. Idaho 28 B. Kansas 31 C. California , 32 D. The Indian Child Welfare Act 33 VII. PROPOSED LEGISLATION: SUBSTANCE AND PROCEDURE 35 A. Components of Future Legislation 35 B. State or Federal? 38 VIII. CONCLUSION 40 I. INTRODUCTION Children from families with parental disability are unnecessarily removed from the custody of their parents at alarming rates. Frequently, the only basis for removal is the parent's disability and a baseless speculative concern that the parent will not be able to provide practically, developmentally, or in some other way for the child. One movement, espousing above all the right to self-determination and independence (Nothing About Us Without Us Ever! being one movement motto), has discovered that sometimes no amount of determination or independence - or perceived financial or ethnic privilege - can protect the children of parents with disabilities once they become the object of custody litigation.1 The roots of this phenomenon are historical, but the consequences quite current. Whether in dependency or family law cases, such removals are devastating and traumatizing for the children and parents involved. For countless children, the trauma of losing their families - one of the most consequential traumas a child can endure - is heightened when they are abused or neglected in foster care settings or by co-parents or extended family members who have histories of violence, substance abuse, or neglect, and who would never have won custody from an ablebodied parent. Such suffering has repercussions not only for the children, but for society as well. The rate of removal of children from families with parental disability is significantly higher than rates for children whose parents are not disabled, and the discrepancy is due to specific and avoidable problems within the social service and legal systems. The former are thus unfairly impacted and traumatized by removal and loss of familial integrity. Comprehensive legislative action that synthesizes other successful state and federal remedial legislation is needed to protect this population of children. II. THE LAW AND HISTORY A. Dependency Law The freedom to parent without interference from the state is protected by the Fourteenth Amendment to the U.S. Constitution.2 However, this right is balanced against the right of the state to protect its citizen children from harm.3 The Supreme Court has struck a compromise: individuals cannot have their parental rights terminated by the state unless they are found unfit. …