Justice for Parents with Disabilities and Their Children

Activists and scholars are increasingly calling for the abolition of the carceral state after the police killings of Breonna Taylor, George Floyd, and numerous other people of color and the subsequent 2020 uprisings. They are also increasingly demanding that the child welfare system, often referred to as the family policing system, be abolished.

Nearly twenty years ago, in her revolutionary book, Shattered Bonds: The Color of Child Welfare, Dorothy Roberts, a professor at the University of Pennsylvania, declared that the United States must “finally abolish what we now call child protection and replace it with a system that really promotes children’s welfare.”

Building off Professor Roberts’s groundbreaking work, in a forthcoming paper, I argue that the only way to achieve justice for parents with disabilities and their children is to abolish the child welfare system.

Each year, the child welfare system traumatizes and separates millions of marginalized families, including parents with disabilities and their children. Indeed, in 2019, the child welfare system investigated more than 3 million families and separated approximately 430,000 children from their parents.

Notably, two-thirds of the cases in which children were separated from their parents involved allegations of neglect, not abuse, which is often conflated with poverty. Thus, most of these families could have been spared child welfare system involvement if they had access to adequate supports and resources.

The disproportionate rate of child welfare system involvement in families headed by parents with disabilities is striking. Although children of parents with disabilities comprise only 9 percent of the nation’s youth, they make up 19 percent of the children in foster care.

The National Council on Disability—an independent federal agency that advises the President and U.S. Congress on disability policy—described the child welfare system’s bias against parents with disabilities as “persistent, systemic, and pervasive.”

Similarly, the U.S. Department of Justice and the U.S. Department of Health and Human Services have stated that the child welfare system’s discriminatory policies and practices toward parents with disabilities are “long-standing and widespread.”

The injustices that parents with disabilities and their children continue to experience are, in part, due to ableist provisions of the child welfare system’s federal and state regulatory and funding policies. For example, the Adoption and Safe Families Act of 1997 (ASFA) imposes a 15-month “clock” on families, which means that states may move forward with the termination of parental rights if a child has been removed from their home for 15 of the last 22 months.

Research shows, however, that it is often impossible for parents with disabilities to comply with ASFA’s stringent timelines because locating and securing appropriate supports often takes extensive time. Examples of such supports include in-home training for parents, adaptive parenting equipment, respite services, and mental health treatment. ASFA also promotes adoption through financial incentives to states, resulting in staggering numbers of family separations.

Moreover, ASFA authorizes child welfare agencies to bypass the provision requiring agencies to make reasonable efforts to reunify families and instead to terminate parental rights if the child has been “subjected … to aggravated circumstances,” which some states have interpreted to include parental disability. In other words, some states legally forgo providing reasonable efforts to reunify disabled parents and their children and proceed with termination of parental rights.

In addition, two-thirds of state child welfare laws include a parent’s disability as grounds for the termination of parental rights, meaning that a disability label can be used to demonstrate a parent’s unfitness.

Notably, the Americans with Disabilities Act (ADA) has been ineffective at preventing the child welfare system from discriminating against parents with disabilities. In another article, I analyzed 2,064 appellate termination of parental rights cases involving mothers with disabilities and found that the ADA was only raised in 6 percent of the decisions and only applied in less than 2 percent of the opinions.

In addition, interviews with parents with disabilities, their attorneys, and child welfare workers suggest that there are significant barriers to compliance with and enforcement of the ADA. So, even the far-reaching ADA has not stopped the child welfare system from unnecessarily interfering in the lives of parents with disabilities and their children.

Regrettably, the striking injustices experienced by parents with disabilities and their children are not surprising. As I have previously argued, the child welfare system is not ableist out of happenstance but rather is ableist by design. From institutionalization to forced sterilization to marriage restriction laws, the United States has enacted laws and policies aimed at prohibiting people with disabilities from creating and maintaining families.

Likewise, early child welfare laws and policies focused on “good” versus “bad” parents, with parents with disabilities always considered the latter. And, although early laws and policies focused on keeping families together, they carved out exceptions for family preservation in cases of “bad” parents. Today, those beliefs manifest in contemporary child welfare system laws and policies that disproportionately harm parents with disabilities and their children.

The child welfare system cannot be fixed because it is, in reality, not broken. Indeed, it is doing exactly what it is intended to do: oppress marginalized families, including those with parents with disabilities.

Accordingly, the only way to achieve justice for these families is to abolish the child welfare system and reimagine methods of providing non-punitive supports and resources. Such efforts must recognize and respond to the needs of parents with disabilities and their children, such as by ensuring economic well-being, investing in accessible supports, ending surveillance of families, and providing high-quality legal representation for those entangled in the system. Most importantly, all legal and policy responses must be led by those most impacted by the current child welfare system, including parents with disabilities. The goal must be to create a world in which the child welfare system is no longer deemed necessary.

Ultimately, the laws and policies that result in the child welfare system’s injustices must be radically transformed from the roots on upward. Simply reforming the system is not enough. The time to act is now—we cannot wait any longer.

Robyn M. Powell is a visiting assistant professor at Stetson University College of Law.