The Americans with Disabilities Act: Legal and Practical Applications in Child Protection Proceedings
| Author | Joshua B. Kay |
| Pages | 201-236 |
THE
AMERICANS
WITH
DISABILITIES
ACT:
LEGAL
AND
PRACTICAL APPLICATIONS
IN
CHILD
PROTECTION
PROCEEDINGS
JOSHUA
B.
KAY*
I. INTRODUCTION
Parents with
disabilities,
particularly
those
with
intellectual
disability
and/or
mental
illness, are
disproportionately
represented
in
the
child
protection
system.
1
Once involved
in
the
system,
they
are
far
more
likely
than
parents
without
disabilities
to
have
their children
removed and
their
parental rights
terminated.
The
reasons
for
this
are
many.
Parents
with
disabilities
are
relatively
likely
to
experience
other
challenges
that
are
themselves
risk
factors
for
child
protection involvement.
In
addition,
child
protection
agencies,
attorneys,
courts,
and
related professionals
often lack
knowledge
and
harbor
biases
about
parents
with
disabilities,
increasing the
likelihood
of
more
intrusive
involvement
in
the
family. Yet research
does
not
support
their
negative
assumptions
about
these
parents.
Not
only
do
most
of
their
children
fare
well,
but
when
people
with disabilities have
parenting
deficiencies,
they
can
be
addressed
with appropriate
services
that
accommodate
their
disabilities,
suggesting
that
the
high
rate
of
termination
of
parental rights
in
this
population
is
unwarranted.
The
Americans
with
Disabilities
Act
of
1990 and
stronger legal
advocacy
are
viable
tools
to improve
how
the
child
protection
system
addresses
the needs
of
parents
with
disabilities
and their
children.
2
Despite
a
problematic
history
of
child
protection
courts limiting
the
reach
of
the
Copyright
©
2018,
Joshua
B.
Kay
*
Clinical
Assistant Professor
of
Law,
University
of
Michigan
Law School;
J.D.,
University
of
Michigan
Law
School; Ph.D., Clinical
Psychology,
University
of
Michigan.
I
am
indebted
to
my
colleagues
in
the
University
of
Michigan
Law
School
Child
Advocacy
Law
Clinic, Professors
Vivek
Sankaran
and
Frank
Vandervort,
for
their
feedback
and
support.
I
also appreciate the
feedback
received
from
attendees
at
Capital
University
Law
Review's
Thirteenth
Annual Wells
Conference
on
Adoption
Law
at
the
Capital
University
Law
School
on
February
8,
2017.
1
David McConnell
&
Gwynnyth
Llewellyn,
Stereotypes,
Parents
with
Intellectual
Disability,
and
Child Protection,
24
J.
Soc.
WELFARE
&
FAM.
L.
298-99
(2002).
Intellectual
disability involves
significantly below
average
intellectual
functioning
coupled
with
limitations
in
adaptive
skills.
Id.
2
The
Americans
with
Disabilities
Act,
42
U.S.C.
§
12101
et
seq.
[hereinafter
"ADA"].
CAPITAL UNIVERSITY
LAW
REVIEW
ADA,
there
is
recent
progress
in
case
law
and
state
statutes to
realize
the
ADA's
full
potential
by incorporating
its
requirements
and
removing
parental
disability
as
a
ground
for
child protection intervention.
This
paper
discusses
the
interplay
of
disability
rights
and
child
protection
cases.
Part
II
describes the
scope
of
this
issue.
Part
III
discusses
the
various challenges faced
by
parents
with
disabilities
that
increase
their risk
of
involvement
in
child
protection cases.
This
Part
also
describes
biases about
parents
with
disabilities
often
held
by
various
players
in
the
system,
including case
workers
and
judges.
Part
IV
describes
research
indicating
that
the
reality
of
child welfare
for
parents
with
disabilities belies
commonly held biases.
Part
V
discusses
the
ADA
and
its
application
to child
protection
cases,
including
how courts
have
decided
these cases
historically
and
some
recent
signs
of
progress
in
more
fully
applying
the ADA
in
these
matters.
Finally,
Part VI
suggests
approaches
that
legal
advocates
should
adopt
when they
represent
parents
with
disabilities.
II.
PARENTS
WITH
DISABILITIES
AND
CHILD
PROTECTION
PROCEEDINGS
A.
Scope
of
the
Problem
The
number
of
parents
with
any disability
is
substantial.
An
estimated
"8.4
million
parents
with
disabilities
have
children
under
18
living
at
home."
3
Another
estimate
is
that
there
are
over
10
million
families
with
children
living
in
a
home
with
a
parent who
has
a disability.4 Still,
another
researcher
found
that
15%
of
all
American
families
include
at
least
one
parent
with
a
disability.'
Child
protection
involvement
is
a
significant
concern
to
the
disability
community, because
the
child
protection
system
intervenes
in
their
families
relatively
frequently,
and
their
cases
are
far
3
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).
4
Megan
Kirshbaum
& Rhoda
Olkin,
Parents
with
Physical,
Systemic,
or
Visual
Disabilities,
20
SEXUALITY
&
DISABILITY
65
(2002).
See
also
Stephanie
N.
Gwillim, The
Death
Penalty
of
Civil
Cases:
The
Need
for
Individualized
Assessment
&
Judicial
Education
when
Terminating
Parental
Rights
of
Mentally Ill
Individuals,
29
ST.
Louis
U.
PuB. L.
REv.
341,
343
(2009)
(citing research
showing
an
increase
in
the
number
of
families
headed
by
a
parent
with a
disability).
5
Ella
Callow,
Maintaining
Families
when
Parents
Have
Disabilities,
28
CHILD
L.
PRAC.
129
(2009).
[46:783
ADA
APPLICATIONS
IN
CHILD
PROTECTION
more
likely to result
in
termination
of
parental
rights.
6
By one
conservative
estimate,
19%
of
children
in
the
foster
care
system
in
2012
were
removed
at
least
in
part because
of
parental
disability.
7
Research
suggests
that
approximately
30%
of
child
protection court
cases involve
parents with
one
or
more
disabilities,
whether intellectual,
psychiatric,
physical,
or
sensory.
8
In
comparison,
people with
disabilities
represent
approximately
15%
of
the population.
9
International
and
American
studies
have
found
that
"children
who
have parents with
disabilities are
disproportionately
involved
in
the
child
protection system
and more likely
to
be
placed
in
formal
foster
care."
1
The
National
Council
on
Disability
has reported
with
alarm,
the
high
rates
of
child
protection involvement
amongst
parents
with
disabilities,
and
the
Department
of
Health
and
Human
Services
and
the
Department
of
Justice, both charged
with
enforcing the ADA,
have taken
notice.
11
Parents
with
mental
disabilities,
whether
intellectual
or
psychiatric, are
at
particularly high
risk.
Studies
have
suggested
that
these
parents
make up
over
one-fifth
of
parents
involved
in
child
protection
systems.'
2
6
See,
e.g.,
Maurice A.
Feldman,
Parents
with
Intellectual
Disabilities:
Implications
and
Interventions,
in
HANDBOOK
OF
CHILD
ABUSE
RESEARCH
AND
TREATMENT
401
(John
R.
Lutzker
ed.,
1998).
7
Elizabeth
Lightfoot &
Sharyn
DeZelar,
The
Experiences
and
Outcomes
of
Children
in
Foster
Care
who
Were
Removed
Because
of
a
Parental
Disability,
62
CHILD.
&
YOUTH
SERVS.
REv.
22, 26
(2016).
1
Phillip
A. Swain
& Nadine
Cameron,
"Good
Enough
Parenting":
Parental
Disability
and
Child
Protection,
18
DISABILITY
&
Soc'Y
165,
169
(2003).
9
Id.
at
171.
10
Lightfoot
&
DeZelar,
supra
note
7,
at
27.
11
NAT'L
COUNCIL
ON
DISABILITY,
ROCKING
THE
CRADLE:
ENSURING
THE
RIGHTS
OF
PARENTS
WITH
DISABILITIES
AND
THEIR
CHILDREN
(2012),
http://www.ncd.gov/
sites/default/files/Documents/NCD
Parenting_508
0.pdf
[https://perma.cc/N4A5-E3YU];
U.S.
DEP'T
OF
HEALTH
&
HUMAN SERV.,
OFFICE
FOR
CIVIL
RIGHTS ADMIN.
FOR
CHILDREN
&
FAMILIES
&
U.S.
DEP'T
OF
JUSTICE,
CivIL
RIGHTS
Div.
DISABILITY
RIGHTS
SECTION,
PROTECTING
THE
RIGHTS
OF
PARENTS
AND
PROSPECTIVE
PARENTS
WITH
DISABILITIES:
TECHNICAL ASSISTANCE
FOR
STATE
AND
LOCAL
CHILD
WELFARE
AGENCIES
AND
COURTS
UNDER
TITLE
II
OF
THE
AMERICANS
WITH
DISABILITIES
ACT
AND
SECTION
504
OF
THE
REHABILITATION
ACT
2
(Aug. 2015) [hereinafter,
TECHNICAL
ASSISTANCE]
http://www.ada.gov/dojhhs
ta/child
welfare
tapdf
[https://perma.cc/3N9R-GQPC].
12
Charisa
Smith,
Making
Good
on
an
Historic
Federal
Precedent:
Americans
with
Disabilities
Act
(ADA)
Claims
and
the
Termination
of
Parental
Rights
of
Parents
with
(continued)
2018]
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