BARRIERS AND FACILITATORS TO COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT BY THE CHILD WELFARE SYSTEM: INSIGHTS FROM INTERVIEWS WITH DISABLED PARENTS, CHILD WELFARE WORKERS, AND ATTORNEYS.

• Author: Powell, Robyn M.

INTRODUCTION 122 I. PARENTS WITH DISABILITIES AND THE CHILD WELFARE SYSTEM 126 A. Overview of the Issues 127 B. The Child Welfare System and the Americans with Disabilities Act 131 1. Overview of the Americans with Disabilities Act 132 2. Application of the Americans with Disabilities in the Child Welfare System: Lessons and Limitations 134 II. METHODOLOGY AND DATA 137 A. Qualitative Methodology 138 B. Sample 139 1. Recruitment 139 2. Inclusion Criteria 141 3. Sample Description 141 C. Data Collection 144 D. Data Analysis 145 III. DISCUSSION AND FINDINGS 146 A. Knowledge, Training, and information 147 1. Knowledge, information, and Training for Parents with Disabilities 148 2. Knowledge, Information, and Training for Child Welfare Workers 149 3. Knowledge, information, and Training for Legal Professionals 152 B. Institutional Support 155 1. Policies and Procedures 156 2. Agency Culture and Leadership 157 3. Resource availability 158 C. Legal and social Context 160 1. Tensions Between Children's Rights and Parents' Rights 161 2. The Convergence of Disability Law and Child Welfare Law 163 IV. IMPLICATIONS FOR RESEARCH, POLICY, AND PRACTICE 165 A. Future Research 166 B. Policy and Practice Considerations 168 1. Increased Knowledge 168 a. Child welfare workers should receive training about the law and people with disabilities 169 b. Legal professionals should receive training about the ADA and people with disabilities 170 c. Parents with disabilities should receive training about their legal rights 171 2. Building Institutional Capacity 172 a. Child welfare agencies should develop detailed policies and procedures for their staff about the ADA 172 b. Agencies must foster a culture that supports ADA compliance 173 c. Services and supports for disabled parents must be developed, implemented, and readily available 173 3. Regulatory, Statutory, and Judicial Considerations 175 a. States should pass legislation to support the rights of disabled parents 175 b. Statutory or regulatory reforms on the federal level should be considered 176 c. Judges should address tensions between disability law and child welfare law 176 CONCLUSION 177 INTRODUCTION

For nearly five years, a mother with an intellectual disability fought the state of Michigan to regain custody of her daughter and son. The mother's battle to reunite with her children began in April 2012, when she brought her infant daughter to the Michigan Department of Health and Human Services (Department) because she was having difficulty caring for her daughter. (1) The mother was homeless and desperately in need of assistance. (2) The Department took custody of the infant and placed her in foster care. (3) In January 2013, a treatment plan was developed, which, among other things, required the mother to attend parenting classes, participate in counseling, visit her daughter in a supervised setting, complete high school or obtain a GED, secure housing and income, and undergo a parenting evaluation. (4) The Department's treatment plan for the mother included several goals, including that she would "obtain the intellectual capacity to fully be able to care for herself and her daughter." (5) A month later, in February 2013, the mother gave birth to her son, who was immediately placed in foster care. (6)

For most of 2013, the mother participated in services required by the plan, despite difficulties. (7) At a January 2014 hearing, the mother's attorney requested individualized services tailored to meet the mother's disability-related needs. (8) Over the next year and a half, on at least five occasions, the mother's attorney inquired about the Department's efforts to provide the mother with services through a local community-based organization that serves parents with disabilities. (9) Nonetheless, she never received these services. (10) In January 2015, the Department filed a petition to terminate the mother's parental rights to both children, which was granted in July 2015. (11)

The mother appealed her case, asserting that the Department failed to provide reasonable efforts because it did not accommodate her disability as required by the Americans with Disabilities Act (ADA). (12) She argued that receipt of reasonable modifications could have prevented the termination of her parental rights. (13) In turn, the Department and the children's lawyer-guardian ad litem contended that the mother had waived such a claim because she had not raised the issue previously. (14) The Court of Appeals disagreed, finding that the mother had preserved her claim sufficiently, as demonstrated by her attorney's many objections before the termination proceedings concerning the inadequate services the Department was providing her. (15) The Court concluded, therefore, that because the mother's treatment plan failed to include reasonable modifications, she was not offered an opportunity to benefit from the proffered services. (16) Accordingly, the Court found that the termination was premature. (17)

The children's lawyer-guardian ad litem appealed the Court's decision. The Michigan Supreme Court affirmed the Court of Appeals' decision, holding that the Department must make reasonable efforts in most child welfare system cases, and its duties under Title II of the ADA "dovetail" with this requirement. (18) specifically, the court stated:

Absent reasonable modifications to the services or programs offered to a disabled parent, the Department has failed in its duty under the ADA to reasonably accommodate a disability. in turn, the Department has failed in its duty...to offer services designed to facilitate [reunification]...and has, therefore, failed in its duty to make reasonable efforts at reunification.... (19) The Court found that "efforts at reunification cannot be reasonable...unless the Department modifies its services as reasonably necessary to accommodate a parent's disability. And termination is improper without a finding of reasonable efforts." (20)

While this case ultimately had a positive outcome, this mother's experience illustrates an all-too-common issue facing parents with disabilities: Child welfare agencies and courts regularly disregard the ADA, particularly at the termination of parental rights phase. (21) Although the ADA (22) was passed thirty years ago to ensure "equality of opportunity" (23) for people with disabilities, disabled people are still fighting for their fundamental right to parent. (24) In other words, the ADA is not protecting the rights of parents with disabilities involved with the child welfare system, although it should. Notwithstanding a burgeoning body of scholarship that has documented the adverse experiences disabled parents and their families face when engaged with the child welfare system, no study has empirically elucidated why the ADA is not effectively safeguarding these parents' rights. In particular, no research concerning the ADA and the child welfare system has collectively examined the experiences and perspectives of the individuals most intimately involved in these cases: parents with disabilities, child welfare workers, and attorneys who represent parents ("parents' attorneys"). Not including the insights of these individuals is a substantial omission from an otherwise considerable body of research. This Article begins to fill that gap.

Through in-depth qualitative interviews with disabled parents, child welfare workers, and parents' attorneys, this Study offers novel and critically needed data on the barriers and facilitators to compliance with the ADA by the child welfare system, as perceived and experienced by the parents and professionals who support them. This Study has two overarching research questions. First, what are disabled parents', child welfare workers', and parents' attorneys' experiences related to compliance with the ADA by the child welfare system? Second, what do disabled parents, child welfare workers, and parents' attorneys perceive as the barriers and facilitators to compliance with the ADA by the child welfare system? Understanding these unique experiences and viewpoints is essential to the development and implementation of policies and practices that advance compliance with the ADA by the child welfare system as well as to ensuring that parents with disabilities and their families are afforded their rights.

This Article is organized as follows. Part I discusses the experiences of parents with disabilities who are involved with the child welfare system. specifically, this Part begins by describing inequities experienced by disabled parents involved with the child welfare system, including potential causes of these disparities. It then explains the ADA and its applicability to the child welfare system, including a brief discussion about the difficulties enforcing the law in the courtroom and emerging legislative and judicial trends that suggest an increased understanding of how the ADA protects the rights of parents with disabilities. Part II explains the Study's methodology and data, including information about the Study's sample, data collection, and data analysis. Part III presents and discusses the findings, which are organized according to the barriers and facilitators to compliance with the ADA by the child welfare system: (1) knowledge, training, and information; (2) institutional support; and (3) legal and social context. Finally, drawing on the data, Part IV concludes by exploring the implications of this Study for future research as well as policymaking and practice.

The Study has notable limitations, namely the general nature of its findings in light of the sample's size and homogeneity. Selection bias and recall bias also limit the Study's findings. Notwithstanding, as the first investigation of the barriers and facilitators to the child welfare system's compliance with the ADA, this Study offers a novel contribution to our understanding of this issue and raises important questions for future...