Bias Toward the Disabled
| Author | Geri C. Sjoquist |
| Pages | 14-46 |
14 FAMILY ADVOCATE www.shopaba.org
Bias and subsequent discrimination toward people
with disabilities is prevalent in our legal system,
and its tentacles, based on our unconscious
judgments, perceptions, and assumptions, too
often puncture and permeate even our best
intentions—usually cloaked in the legal authority of parens
patriae—in ways that are sometimes subtle yet highly
consequential. e labeling of someone as disabled subjects
them to the critique of a social organization that seeks to
exclude, restrict, and unwittingly put at a disadvantage
people who have impairments, instead of recognizing the vast
diversity of human beings and their inherent value and
essential equality.
Or, to put it more bluntly, it is about prejudice. Whether
the disabled person is a litigant or a child, when prejudice
pushes them to the back of the queue because of the general
lack of knowledge regarding the underlying facts about their
abilities as a disabled person, the resultant decisions or
conclusions made about them, predominantly based on fear
and stereotypes, can have tragic consequences.
Bias Toward Adult Litigants or Parties
Bias toward adult litigants or parties in family courts is most
often seen in the context of child custody and child welfare
litigation. Although the right to be a parent is generally
regarded as fundamental, this right is not always assumed for
people with disabilities. Society as a whole tends to see people
with disabilities as helpless, needy, and limited in their ability
to meaningfully contribute. ere is a tendency to dumb
things down for people with disabilities and have lower
expectations. A basic understanding of what it means to be
disabled is just not something that is commonly known.
Presumptions are typically based on stereotypes. Such stigma
too often results in disastrous conclusions for parents who are
involved in litigation regarding their children. Indeed, the rate
of removal of children from parents with disabilities—espe-
cially if the disability is of a psychiatric, intellectual, or
developmental variety—is ominously higher than rates for
children whose parents are not disabled. Parents with disabili-
ties are routinely referred to child protection services, and once
involved, are permanently separated from their children at
disproportionately high rates.
In fact, disabled parents are at a much higher risk of
losing custody of their children than abled parents even
though, when a court uses a parent’s disability as a factor in a
custody or parenting time determination, the court is
required to make specic written ndings regarding how the
parent’s disability has or will cause harm to their child.
Despite this, according to the Christopher & Dana Reeve
Foundation, two-thirds of the dependency statutes in the
U.S. allow the court to determine that a parent is unt on
the basis of a disability, 35 states include disability as grounds
for termination of parental rights, ten states allow physical
disability as the sole grounds for the termination of a parent’s
rights—even without evidence of abuse or neglect—and, in
every state, disability of a parent can be included in deter-
mining the best interest of the child.
Real-Life Example:
A young mother with quadriplegia had her baby removed at
birth after testing had shown prenatal substance abuse. e
social worker described the mother as forming no relationship
with her baby. Because of the social worker’s unconscious biases
regarding the mother’s disabilities, the social worker presumed
Bias Toward
the Disabled
BY GERI C. SJOQUIST
Published in Family Advocate, Volume 44, Number 3, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
WINTER 2022 15
the mother was psychologically incapable of forming a relation-
ship with her newborn. Needless to say, the social worker
reported the mother was depressed and appeared estranged and
disinterested in her baby. However, in the six months since the
child had been born the mother had not been oered or provided
any assistance to make it possible for her to hold or care for her
baby. Not surprisingly, when the social worker showed the
mother videotapes of parents with disabilities and their babies
(images of possibilities), the mother asked if the social worker
would help her hold and feed her baby and, with an assortment
of props and pillows, the mother was able to hold her baby for
the rst time. She tenderly nuzzled and murmured to her,
caressing her with her lips, greeting her baby as new mothers do.
Bias toward adult litigants on the basis of disability also
rears its head in cases where a guardian ad litem (GAL) is
appointed. Under the doctrine of parens patriae, the state
has a fundamental interest in protecting children. Accord-
ingly, states may claim the authority to protect children by
limiting or, under extreme circumstances, severing a
parents’ rights. Typically, “extreme circumstances” involve
instances of child abuse and neglect. Following this
doctrine of parens patriae, many states have statutes that
require a mandatory appointment of a GAL if the court
suspects a child is a victim of abuse or neglect. In the
context of a disabled parent, however, many times a GAL is
appointed even though the allegations in the case do not
rise to the level of abuse or neglect. In those cases, what
other conclusion can be made but that the parent’s disabil-
ity (for example, a seizure disorder) was the (unlawful) basis
for the mandatory appointment? In other words, instead of
respectfully making an inquiry into the actual facts of a
parent’s disability to ascertain whether restrictions are even
necessary (and, if so, whether some sort of adaptive
assistance might level the playing eld), family courts will
often drastically reduce a disabled parent’s access to their
children based on recitations of social workers who may not
be qualied to assess a disabled parent’s disability and
subsequent tness to parent.
Furthermore, disabled parents who strive to be good
parents often nd that their eorts are misunderstood.
ey are not seen as parents trying to solve practical
problems arising from their special situation. Instead,
people often tend to interpret what they do as indicative of
their shortcomings even though all parents, abled or
disabled, make mistakes and have accidents. Likewise, out
of fear of being harshly judged as a disabled person taking
advantage of a child’s eagerness to help, and in an eort to
prove their tness, many disabled parents will refrain from
requiring their children to be responsible for certain
household chores because their children’s helping out
around the home is not viewed in the context of normal
socialization, but rather against the backdrop of the parent’s
disability and need for assistance.
Real-Life Example:
At a beach, a disabled mother in a wheelchair tied a rope to her
children’s life jackets. She wanted her children to be able to move
around freely while feeling secure they would not be in danger.
Unfortunately, this was not acceptable to some beachgoer, who
called 911 to report what they viewed as child abuse.
Bias Toward Children
One of the consistently tragic areas of family law where
systemic discrimination against children with disabilities
persists is in the area of adoptions. In many adoption
agencies, whether they are public or private, children in need
of adoption are ranked based on their desirability. Babies are
on top of the list. As children get older, their ranking or
desirability is concomitantly reduced, with the oldest and
disabled children placed at the bottom. Although the ADA
protects a disabled child from discriminatory treatment,
these protections are largely inconsequential in practice. In
other words, the network of adoption agencies working with
potential parents in the United States does little if anything
to discourage this ranking system, subsequently permitting
informal prejudice to occur.
Children with disabilities have signicantly lower rates of
adoption and, once adopted, have higher rates of disruption.
Sadly, the disability expertise of practitioners tasked with
facilitating and coordinating this very important aspect of a
child’s life may be questionable, as is their awareness of
potential adaptive solutions.
Real-Life Example:
When Mary, a woman with signicant physical and sensory
disabilities, applied to adopt her disabled niece, the social worker
told Mary “a handicapped woman can’t take care of a handi-
capped child.” Luckily, Mary persisted and, after a court-ap-
pointed special advocate got involved a year later and the state
child welfare agency was almost held in contempt, she was able
to adopt her niece.
Meanwhile, children with developmental disabilities are
oftentimes coerced into undergoing unnecessary medical
procedures by well-intentioned doctors, social workers—and
even their parents—to remove their reproductive organs.
Mainstream society’s discomfort with the notion of people
with disabilities’ relational intimacy is well documented.
Subsequently, these young adults endure the results of
misinformation and ignorance about their body’s capacity for
enjoyment when that body diers from what is considered to
be normal, resulting in the extinguishment of their reproduc-
tive rights in addition to the general disapproval they face
when attempting to engage in romantic relationships.
Concerns that they may give birth to “defective” babies and
prejudicial assumptions about their capacity (as future
disabled parents) to care for their children underpin the
blatantly discriminatory treatment they endure. is odious
Published in Family Advocate, Volume 44, Number 3, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
16 FAMILY ADVOCATE www.shopaba.org
pressure to ensure the highest-quality ospring has also
resulted in a trend where women who choose to forgo prenatal
testing often do so in the face of harsh criticism by their
doctors, and sometimes even run the risk of losing their
medical insurance if they choose to bring a fetus to term rather
than abort a “awed” (and therefore expensive) newborn.
Finally, we also see bias toward children manifest where
children are treated unjustiably dierently because of their
parents’ disability. e issue of a person’s disability usually
isn’t about the physical, mental, or intellectual impairments
that may or may not be associated with it, but about people’s
implicit response to them. Consequently, the children of
disabled parents are routinely victimized when they are
separated without cause from their parents under the guise of
benevolent protection. Regardless of the age of the child,
separating children from those with whom they have
established an in loco parentis relationship is a well-known
source of anxiety, stress, and potential trauma. In infant-
parent relationships, insucient contact between the parent
and infant can compromise and disrupt their mutual
adaptive process. For example, studies have shown that
infants as young as one month begin adapting to their
parent’s disabilities by, for example, holding still and curling
up into a fetal position during lifts.
So, What Can We Do?
One of the most important tools we have to mitigate bias
against people with disabilities in family courts is to educate
those who are likely to exhibit it.
Remind the court, the lawyers, the agencies, the experts,
and the parties that one of the core tenets of our society is the
importance of confronting discrimination. Section 504 of
the Rehabilitation Act of 1973 (Section 504) and Title II of
the Americans with Disabilities Act of 1990 (ADA, or Title
II) protects parents (and prospective parents) and children
with disabilities from unlawful discrimination in the
administration of child welfare programs, activities, access to
the court, and court services. is includes state court
proceedings involving parentage and parental rights. Such
proceedings are classied as state activities and services for
purposes of Title II.
e freedom to parent without interference from the state
is a fundamental right protected by the 14thAmendment.
e Child Welfare Act of 1980 required that “reasonable
eorts” be made to keep children with their parents, to
prevent or eliminate the need for removal of the child from
his or her family. en, in 1997, the Adoption and Safe
Families Act (ASFA) claried the requirement of the reason-
able eorts standard, balancing it with the need to make
safety the “paramount concern,” thereby strengthening the
state’s response to a child’s need for safety and permanency at
every point along the continuum of care.
Pursuant to the ASFA, states must make “reasonable”
eorts to preserve a family before moving a child to an
out-of-home placement. Under Section 504 and Title II of
the ADA, courts are also required to make individualized
factual assessments and consider, if appropriate, adaptive
services to level the playing eld. us, the court is required
to rst make an individualized assessment that evaluates the
strengths, needs, and capabilities of the disabled parent or
child based on objective evidence, personal circumstances,
demonstrated competencies, and other factors divorced from
generalizations and stereotypes. Such an assessment would
inform the court regarding whether or not there is a need to
restrict or remove the child from the care of the parent at all,
and whether provisions could be made for adaptive services
that would help a disabled parent perform as any other “able”
parent would. is rarely happens.
e unspoken notion or presumption that a child is not
safe because the parent is disabled is alive and well, though
grievously outdated. Despite the fact that laws protecting the
disabled are decades old, the federal requirements have own
under the radar to the point that very few people seem to be
aware that reasonable eorts in family court following a
factual assessment is a requirement under federal law.
Disabled parents (and parents of disabled children) are often
left to their own devices and must bear the burden of proving
their tness or ability to parent with little or no assistance at
all, or they risk having their children determined to be in
need of protection or services and removed from their care.
e single most eective way we can help minimize this
reality is by underscoring that ensuring disabled parents have
equal access to parenting opportunities is not an aspirational
idea but a requirement under federal law. Insist that reason-
able eorts are made and decisions involving people with
disabilities are based on an individualized assessment of a
disabled child’s needs or a disabled parent’s ability to ad-
equately meet their child’s needs. As a practical matter, we
can do that by insisting that the court go beyond merely
providing a plan or a list of recommendations with the
expectation that the parent will develop their own resources.
We can do that by expressly requesting that the court
examine whether the disability is relevant to the safety and
protection of the child or the child’s best interest; determine
whether services to the child and parent are adequate to meet
the needs of the child and the parent, culturally appropriate,
available and accessible, consistent and timely, and realistic
under the circumstances; and determine whether or not
auxiliary or adaptive services would level the playing eld.
Conclusion
Our biases include both favorable and unfavorable assessments
that directly aect our understanding, actions, and decisions
on an unconscious level. Remarkably, a person’s implicit
associations—acquired over their lifetime—may or may not
even align with their explicitly declared beliefs. Nevertheless,
our unconscious biases cause us to assign a value to people.
continued on page 46
Published in Family Advocate, Volume 44, Number 3, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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