Seventeen years ago, my oldest daughter was in foster care, and not returning to her parents. She is my biological niece. I contacted her social worker, and expressed interest in being a permanent placement for Heather. What commenced was a 16 month long battle to get custody of her. My daughter’s social worker was convinced “there is no way that handicapped woman can care for this handicapped child.” With a great deal of advocacy from myself and others, as well as a judge that was less discriminatory, Heather was eventually placed with me.
At that time, I had been a classroom teacher for 7 years, teaching middle school and elementary students. I was teaching part-time, working part time as a youth pastor, and part time for a disability rights organization as an advocate. I had recently completed my master’s degree. I had spent my entire adult life at that point working with children. I was being denied custody solely due to my disability.
My story had a happy ending. Heather eventually came home, it’s been over 15 years, and she is doing fabulously.
I knew however, if I were having these issues, a well-educated mostly white woman, I knew other parents didn’t stand a chance when child protection systems have a target on them. I then went to law school, and now my legal practice specializes in representing parents with disabilities who are involved in child protection cases, and disability based child custody cases.
Disabled parents are highly over-represented in child welfare cases. In my court appointment cases, which are made at random, over 80% of my clients have disabilities. Disabled people are less than 20% of the overall population. Almost every single one of these parents have child protection involvement due to neglect, not abuse. Most of the alleged neglect is a result of poverty.
Three years ago the National Council on Disability issued a groundbreaking report, titled Rocking the Cradle: Ensuring the rights of parents with disabilities and their children. The report demonstrates the magnitude of discrimination faced by disabled parents, from involvement in child protection cases, to family law (divorce) cases, to adoption, and even access to reproductive technology services.
In over 2/3 of the states, Colorado included, termination of parental rights can be based on a parent’s disability, particularly intellectual disabilities, and psychiatric disabilities.
In child protection cases, there are only four attorneys in the entire county that practice disability rights law, and child welfare law. Four — in the entire county — and only two provide direct representation (the other two provide crucial technical assistance, and policy work).
Child welfare law and disability rights are very different areas of law. In fact, child welfare law is extraordinarily different from even family law. One of the worst things a parent involved with the child welfare system can do is hire an attorney who does not have experience in child welfare law. Hiring a divorce attorney, or even worse, a personal injury attorney, has disastrous implications for a parent whose child is in foster care. Likewise child welfare law attorneys typically do not have the requisite disability law experience to be effective advocates for their disabled clients. Collaboration and training among disability rights law practitioners and child welfare law practitioners will improve outcomes, but will not resolve the underlying discrimination.
While the U.S. Departments of Justice and Health and Human Services recently issued a letter of findings that found the Massachusetts child welfare system in violation of the ADA, the majority of courts still hold that the ADA does not apply to termination of parental rights cases. The Colorado Court of Appeals recently held in one of my client’s cases that while the ADA is still not a defense to termination of parental rights, it does apply to the remainder of a child welfare case.
Disabled parents desperately need further legislative protections. We need Congress to explicitly legislate protections for disabled parents in family courts and child welfare cases. Until that happens, parents will still be denied the full promise of integration and anti-discrimination that the ADA promises.