Efforts should be taken to address discrimination against parents with disabilities.
The Massachusetts Department of Children and Families removed Sara Gordon’s daughter from her care before Sara was discharged from the hospital after giving birth. Hospital staff reported Sara to the agency based on concerns that her intellectual disability would prevent her from caring for her daughter. It took two years of court proceedings and supervised visits for Sara to have her daughter returned.
In the United States, a child is placed into foster care every 2.5 minutes. Out of all children in foster care, 19 percent are placed there in part because a parent has a disability.
Termination of parental rights is considered the “death penalty of civil cases.”
The modern child welfare system, which scholars often refer to as the family regulation system, stems from a 1960s movement aimed at preventing child abuse and maltreatment. In response, the government passed legislation that required states to remove children from unsafe homes with the goal of reunifying the family if possible.
Ideally, a parent whose child was removed is provided social services and resources aimed at creating a safer home environment. The system, however, often fails to address the underlying social inequities—such as disability, discrimination, or poverty—that resulted in the child’s removal. Parents with disabilities face discrimination based on their status as a disabled person, which is considered as evidence as unfitness to parent.
Rather than addressing the important goal of preventing child abuse, the inclusion of disability status as a basis for terminating parental rights reinforces the harmful belief that disabled people should not be parents.
Today, 22 percent of mothers with intellectual or developmental disabilities are reported to the state’s family regulation system within one year of the child’s birth, compared to 6 percent of mothers without disabilities.
A typical parental rights termination proceeding requires the family regulation agency to demonstrate that a child’s parent is unfit—an individualized inquiry that must focus on the parent’s behaviors. If the agency succeeds, the court determines whether termination of rights is in the child’s best interest.
Disability discrimination occurs before, during, and after a family’s involvement in the system, both from laws and common practice.
Although states typically must only consider a parent’s conduct or actions that harm a child, most states allow parental disability to serve as a proper basis for terminating parental rights. These laws are pervasive, despite strong evidence that people with disabilities can and do successfully parent. As of 2022, 42 states and the District of Columbia include parental disability as a criterion for terminating parental rights. Several of these states list specific disabilities as grounds for termination, including intellectual disabilities, psychiatric or emotional disabilities, and physical disabilities.
Disabled parents are more likely to be reported to the state’s family regulation agency, and these reports result in family separation more often than reports against parents without a disability. Parents with psychiatric disabilities, for example, are 26 times more likely to have a child removed from the home after being reported to an agency. Sarah H. Lorr of the University of Maryland Francis King Carey School of Law argues that many of these reports against disabled parents are driven by stereotypes or assumptions about a parent’s disability rather than actual wrongdoing.
Some scholars contend that data-driven tools used by family regulation systems in investigating reports often exacerbate these disparities. Such tools combine information concerning the parent’s demographics, interactions with other social service systems, and health data to calculate a risk score. These tools risk reinforcing underlying assumptions based on ableist ideas rather than measuring the risk of maltreatment faced by an individual child.
Once a state agency removes the disabled parent’s child from the home, the parent faces several barriers to reunification. The agency more frequently lists long-term foster care rather than reunification as a case goal when the parent is disabled. Disabled parents working toward reuniting with a child are also less likely to receive access to family preservation and reunification services. Services that are provided are rarely tailored to the parent’s individual needs.
Discrimination against disabled parents risks worsening the parent’s disability. Evidence shows Involvement with the family regulation system can cause significant trauma to both the parent and child. This trauma is linked to psychological and physical impairments and can cause new disabilities or exacerbate existing conditions.
The first step toward rectifying harms that discriminatory family regulation practices impose on disabled parents is to expose how and when discrimination occurs. Once discrimination is identified, family regulation agencies can be held accountable for systemic discrimination through existing and proposed enforcement mechanisms.
A recent rule issued by the U.S. Department of Health and Human Services prohibits government family regulation systems from discriminating against disabled individuals. Under this rule, a state cannot terminate parental rights based on speculation, stereotypes, or generalizations about a parent’s disability rather than an individual determination concerning fitness to parent.
Disability rights activists expressed approval of the rule, calling it an important step toward dismantling ableism in family regulation agencies that receive federal funding. The American Association of People with Disabilities contends that it “one of the greatest advancements toward health equity for disabled people in American history.” The Association states that the rule will make it easier for family regulation systems and courts to identify and address disability discrimination when it arises.
Beyond enforcement of this new rule, Robyn M. Powell of Stetson University College of Law advocates challenging discriminatory family regulation laws through the Americans with Disabilities Act and the Equal Protection Clause of the U.S. Constitution. The Due Process Clause may also provide a remedy if a court uses disability status rather than parental fitness to justify termination. Although these laws may provide a strong basis for future court challenges, no court has struck down a state law for including disability in its parental rights termination criteria.
Federal and state governments should also address the discrimination disabled parents face before reaching the termination stage of family regulation.
In 2023, U.S. Representative Sheila Cherfilus-McCormick (D-Fla.) introduced the Equality for Families with Disabilities Act. The bill would require states to develop procedural safeguards and parenting services for people with disabilities at all stages of a family regulation case. If this bill were to become law, it could require states to engage in much-needed reform and facilitate reflection on systemic discrimination.
It is essential that disabled parents who choose to come forward with their disability status are centered in all advocacy and reform efforts. Advocates for disability rights can facilitate reform efforts by supporting movements led by disabled individuals that promote the need for parenting support as an aspect of parenting rather than an indication that a parent is unfit. Advocates should push for access to tools that will assist parents in successfully parenting in place of resorting to breaking up families. These efforts are important steps toward changing legal and societal narratives about disabled parents.
