Chapter 12 Representing Parents with Disabilities

LibraryRepresenting Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.)

CHAPTER 12 Representing Parents with Disabilities

Joshua B. Kay

12.01 Introduction: Scope and Nature of the Problem

Parents with disabilities are more likely than other parents to become involved in the child welfare system, and once involved, their cases are more likely to end in termination of parental rights. This chapter covers basic information about parents with disabilities and child welfare involvement, including the prevalence of disability among parents generally and the frequency with which parents with disabilities are involved in child welfare cases. It discusses why these parents are disproportionately involved in child welfare proceedings and the biases of professionals that contribute not only to this frequent involvement but also to the poor outcomes in many of these cases. The chapter also covers the legal framework specifically applicable to these cases and key elements of effective advocacy, including how to raise claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 (2014) to ensure that these parents' disabilities are reasonably accommodated when reunification services are provided.

12.01(a) Prevalence of Disability Among Parents and Frequency of Child Welfare Involvement

Many parents have a disability of some type, whether physical, sensory, cognitive, or psychiatric. National estimates indicate that at least 8.4 million and possibly more than 10 million parents with disabilities have children under the age of eighteen living in the home. See Megan Kirshbaum & Rhoda Olkin, Parents with Physical, Systemic, or Visual Disabilities, 20 Sexuality & Disability 65 (2002); Rhoda Olkin et al., Comparison of Parents with and Without Disabilities Raising Teens: Information from the NHIS and Two National Surveys, 51 Rehabilitation Psychol. 43, 44 (2006). Child welfare issues are a significant concern for parents with disabilities, because these parents are disproportionately involved in the child welfare system. Once entangled in the system, they are far more likely than parents without disabilities to have their parental rights terminated. Parents with psychiatric and cognitive disabilities appear to be especially at risk of child welfare involvement and eventual termination of their parental rights. The problems that parents with disabilities encounter in the child welfare system are so severe that the National Council on Disability released an extensive report substantially dedicated to these issues. See Nat'l Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children (2012).

Parents with cognitive or psychiatric disabilities are more likely than non-disabled parents to access state services, inviting close scrutiny by state personnel, and they have considerable contact with professionals who are mandated reporters of suspected child abuse and neglect. See Susan Kerr, The Application of the American with Disabilities Act to the Termination of the Parental Rights of Individuals with Mental Disabilities, 16 J. Contemp. Health L. & Pol'y 387, 403 (2000). These professionals are often the source of a Children's Protective Services (CPS) referral, and they have considerable credibility with CPS, so their reports are likely to prompt the Agency to intervene in the matter. See id. This situation contributes to the high rate of child welfare involvement for these parents and eventual termination of their parental rights. It is estimated that among mothers with mental illness, 40 to 75 percent lose custody of one or more of their children, a range of rates substantially higher than for mothers without mental illness. See Colby Brunt & Leigh Goodmark, Parenting in the Face of Prejudice: The Need for Representation for Parents with Mental Illness, 36 Clearinghouse Rev. 295, 297-98 (2002). Even higher percentages have been found among parents with intellectual disabilities, which may be the group most likely to become entangled in a CPS matter and eventually lose their parental rights. A prominent researcher has found in his sample groups that upward of 80 percent of parents with intellectual disabilities have experienced a termination of parental rights. See Maurice A. Feldman, Parents with Intellectual Disabilities: Implications and Interventions, in Handbook of Child Abuse Research and Treatment 401, 415 (John R. Lutzker ed., 1998). Rates of child welfare involvement for parents with physical and sensory disabilities also exceed those in the general population.

12.01(b) The Role of Poverty in the Involvement of Parents with Disabilities in the Child Welfare System

A significant contributor to the disproportionate involvement of parents with disabilities in the child welfare system is poverty. It is well established that poverty is among the strongest predictors of child welfare involvement, and parents with disabilities are twice as likely as other parents to be living in poverty. See Olkin, supra at 44. Whereas people with greater financial resources can purchase services privately to help them with family problems, those who live in poverty are more likely to come to the attention of the state by accessing public assistance. See, e.g., Rosemary Shaw Sackett, Terminating Parental Rights of the Handicapped, 25 Fam. L.Q. 253, 290 (1991). This reliance on the public system of care contributes to the close scrutiny experienced by parents with disabilities. For example, parents with a cognitive or psychiatric disability are likely to obtain services from a publicly funded mental health clinic while also getting other public benefits, such as Social Security or cash assistance. These parents have a great deal of contact with various caseworkers and other professionals who may refer them to CPS.

12.01(c) Common Biases and Assumptions about Parents with Disabilities

Negative assumptions about parents with disabilities appear to be common among various professionals, including CPS caseworkers. The combination of frequent contact with professionals, close scrutiny by state workers, and negative assumptions about the parental fitness of people with disabilities can be devastating. For example, the belief that people with psychiatric conditions are dangerous and largely beyond help is widespread in the child welfare field and may motivate lackluster service planning. See Theresa Glennon, Symposium, Walking with Them: Advocating for Parents with Mental Illness in the Child Welfare System, 12 Temp. Pol. & Civ. Rts. L. Rev. 273, 292 (2003). In contrast, high-quality research suggests that most parents with a psychiatric disability—or a cognitive disability—can provide appropriate parenting for their children with proper treatment and support.

Many caseworkers and other professionals, including psychologists who perform evaluations of parents in CPS cases, believe that a mental illness or, especially, a cognitive disability, cannot be changed, so no amount of treatment or support would allow the parent to provide adequate care for a child. Faced with this assumption, caseworkers are not motivated to engage in careful service planning with these parents, and psychologists are less likely to develop detailed treatment recommendations to address identified problems. In turn, the lack of treatment and other services increases the likelihood of eventual termination of parental rights.

The nature of disability varies a great deal within categories such as "cognitive," "psychiatric," "physical," and "sensory." There is wide variability even within subcategories, such as specific psychiatric diagnoses like schizophrenia or bipolar disorder, or cognitive disabilities such as intellectual or memory impairment. Placing a parent in a general disability or diagnostic category contributes little to an understanding of that individual parent's strengths, weaknesses, and needs. A categorical view of disability, in which the criteria for a particular category are emphasized instead of the person's actual capacities, contributes to the assumption that a disability is pervasive and static, because a caseworker may believe that a parent in a given category must have some set of characteristics assumed to be common to that category. See Alexander J. Tymchuk, The Importance of Matching Educational Interventions to Parent Needs in Child Maltreatment: Issues, Methods, and Recommendations, in Handbook of Child Abuse Research and Treatment 421, 422-23 (John R. Lutzker ed., 1998). In other words, caseworkers and other professionals may assess the category into which they have put the parent rather than the parent him- or herself. Once a person is categorized as disabled in some particular way, assumptions about what that means for parenting can dictate further actions by professionals. The child welfare system generally takes this approach to people with disabilities, which undermines service planning and increases the chances of termination of parental rights. See id.

In contrast, a "functional" perspective emphasizes what an individual person—rather than a broad category of people—can do and learn, and the circumstances under which the person successfully learns or applies what is learned. See id. at 22. A focus on abilities and contexts allows for a better fit between individual needs and educational methods and services. See id. The functional perspective on disability leads to a thorough assessment of relevant skills and deficits, which leads to the provision of high-quality services. This perspective fits well with the legal requirement that reasonable efforts include treatment plans tailored to the specific needs of parents and children.

Agency assumptions about disability are often reflected in petitions filed against parents with disabilities. When reviewing a termination Petition, it is especially important to determine whether the Petition indicates a nexus between the disability of the parent and actual parenting ability and any risk to the child. Does the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT