Maintaining the Legal Status of People with Intellectual Disabilities as Parents: The ADA and the CRPD

• DOI: http://doi.org/10.1111/fcre.12395
• Published date: 01 January 2019
• Date: 01 January 2019
• Author: Leslie Francis

MAINTAINING THE LEGAL STATUS OF PEOPLE WITH

INTELLECTUAL DISABILITIES AS PARENTS: THE ADA

AND THE CRPD

Leslie Francis

People with intellectual disabilities face proceedings to terminate their parental rights with disturbing regularity, with protect-

ing the interests of offspring the primary justification. Although protecting children from harm is surely critical, these termi-

nation proceedings involve problematic assumptions about how fitness to parent is understood, how parenting is legally

constructed, and what nondiscrimination requires for parents with intellectual disabilities. Using Article 12 of the Convention

on the Rights of Persons with Disabilities as a model, it suggests two alternatives to the all-or-nothing termination processes

in place today that might better realize the enjoyment of legal capacity as parents on an equal basis with others for people

with intellectual disabilities: limited terminations analogous to limited guardianships and supported parenting along the lines

of supported decision making proposed in the CRPD.

Key Points for the Family Court Community:

•State statutes that list parental intellectual disability or mental illness as grounds to be considered in proceedings for

termination of parental rights are discriminatory and should be amended; states should be required instead to provide

clear evidence of risks of harm to the child in termination proceedings.

•States are obligated under the Americans with Disabilities Act (ADA) to provide individualized assessments of paren-

tal capacities and reasonable accommodations in services for parents with intellectual disabilities; these may include

adjustments in time frames, visitation structures, or instructional methods.

•Failure to provide accommodations for parents with intellectual disabilities may be violations of the ADA even in

states holding that the failure to provide ADA accommodations is not a defense to a termination of parental rights.

•Limited terminations and supported decision making should be considered instead of all-or-nothing terminations of

parental rights.

Keywords: Best Interests of the Child; Convention on the Rights of Persons with Disabilities (CRPD); Intellectual Disabil-

ities; Parental Rights; Supported Decision Making; and Termination of Parental Rights.

People with intellectual disabilities may have strong interests in procrea ting and in parenting, yet

the law often stands in the way of their realizing these interests. Buck v. Bell, decided by the

U.S. Supreme Court in 1927 and never overruled, illustrates the challenge to their parenthood with

stark clarity: “We have seen more than once that the public welfare may call upon the best citizens

for their lives. It would be strange if it could not call upon those who already sap the strength of

the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent

our being swamped with incompetence. It is better for all the world if, instead of waiting to execute

degenerate offspring for crime or to let them starve for their imbecility, society can prevent those

who are manifestly unfit from continuing their kind…Three generations of imbeciles are enough.”

1

In the passage, Justice Holmes famously expressed the eugenics sentiments of his day: that people

with intellectual disabilities are unfit as parents, that their children will be unfit, that both they and

their children are unmitigated drains on society, and that society may, as a result, impose steriliza-

tion on them without their consent.

Corresponding: francisl@law.utah.edu

FAMILY COURT REVIEW, Vol. 57 No. 1, January 2019 21–36

© 2019 Association of Family and Conciliation Courts

U.S. law has moved far beyond the involuntary sterilization practices of Justice Holmes’s

day.

2

Nonetheless, people with intellectual disabilities may still face proceedings to terminate

their parental rights with regularity. The primary justification for termination seems utterly

reasonable on its face: children must be protected from harm; leaving them in the care of par-

ents with inadequate parenting skills may place them in situations of neglect or danger and is

certainly not in their best interests; and so parents with intellectual disabilities may be found

unfit as parents and their children’s best interests served if parental rights are terminated. One

premise of this justification is surely correct: children must be appropriately protected from

harm. But there is far more to say about the inferences drawn from this premise for people with

intellectual disabilities as legal parents, including about how fitness to parent is understood,

how parenting is constructed by the law, and what nondiscrimination requires for individuals

with intellectual disabilities as parents.

Several major recent recommendations have considered antidiscrimination in decisions to

terminate parental rights. In 2017, the American Bar Association (ABA) adopted a resolution

against disability discrimination in a number of matters involving parental rights, including

termination proceedings. The resolution provides that state governments should “enact legisla-

tion and implement public policy providing that custody, visitation, and access shall not be

denied or restricted, nor shall a child be removed or parental rights be terminated, based on a

parent’s disability.”Instead, there must be a showing “that the disability is causally related to

a harm or an imminent risk of harm to the child that cannot be alleviated with appropriate ser-

vices, supports, or other reasonable modifications.”

3

The resolution was supported by a care-

ful analysis of the extent to which state laws continue to treat disability as relevant to

termination of parental rights and the initiation of federal efforts to end disability discrimina-

tion in termination proceedings.

4

The ABA resolution bore immediate fruit, as it was used in

testimony before the South Carolina state legislature that resulted in statutory protections for

people with disabilities.

5

Federal efforts include the 2012 report of the National Council on

Disability aimed to ensure the rights of parents with disabilities and their children, together

with a toolkit for parents with disabilities.

6

They also include a technical manual for child

welfare agencies to use in addressing discrimination against parents with disabilities.

7

In addi-

tion, in 2015 the Civil Rights Division of the Department of Justice informed the state of

Massachusetts that it was in violation of the Americans with Disabilities Act (ADA) for its

failure to incorporate reasonable modifications into the services it provided a parent with

developmental disabilities.

8

The 2012 National Council on Disability report, Rocking the Cradle, observed that parents

with intellectual disabilities (along with parents with mental illness and parents with visual

impairments) faced particularly serious risks with respect to the continued custody of their

children.

9

The report called on state and federal governments to pay particular attention to the

protections given to family life in the Convention on the Rights of Persons with Disabilities

(CRPD): “States Parties shall take effective and appropriate measures to eliminate discrimina-

tion against persons with disabilities in all matters relating to marriage, family, parenthood

and relationships, on an equal basis with others”and shall “render appropriate assistance to

persons with disabilities in the performance of their child-rearing responsibilities.”

10

The

CRPD, although not ratified in the United States, provides a model for how this antidiscrimi-

nation project may be achieved for parents: people with disabilities “have the right to recogni-

tion everywhere as persons before the law …enjoy legal capacity on an equal basis with

others in all aspects of life …and States Parties shall take appropriate measures to provide

access by persons with disabilities to the support they may require in exercising their legal

capacity.”

11

Two features are core to this model: the right to enjoy legal capacity on an equal

basis with others and the state’s obligations to take appropriate measures to access the support

needed to exercise this capacity.

This article uses the CRPD Article 12 model to explore the current legal situation with respect

to parental rights of people with intellectual disabilities in the United States. It begins with a

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