In many states, a parent’s disability can be grounds for taking away their children

More than two-thirds of states in the U.S. have laws that include “parental disability” as one of their grounds for termination of parental rights. Although recent research has found that parents with disabilities are not more likely to maltreat their children than parents without disabilities, studies have found very high rates of termination of the rights of parents with disabilities.

These legal obstacles to parents with disabilities reflect widespread attitudinal discrimination they face from the general public. For example, in the 2007 MN Governor’s Council Survey 2007 of the general public in Minnesota, over one-third of the respondents to the statement, “People with developmental disabilities should be allowed to have children, just like everyone else,” disagreed. These types of attitudes about disabilities are also reflected in many state laws regarding parenting.

Both the Americans with Disabilities Act and the Rehabilitation Act prohibit state and local governments from discriminating against people with disabilities in their programs and services. However, one area that these anti-discrimination laws do not cover is child custody and child protection proceedings, and many parents with disabilities still face discrimination in these arenas.

A recent review of all state laws in the United States found that 36 states and the District of Columbia had laws that included disability-related grounds for termination of parental rights, while 15 states did not. All of the states that include disability in their grounds for termination specify explicit types of disabilities for courts to consider, including mental illness (36 states), intellectual or developmental disability (32 states), emotional illness (18 states) and physical disability (7 states).

Many of these state laws used outdated terminology and imprecise definitions for describing people with disabilities. For example, the most common combination of disability descriptions was “emotional illness, mental illness and mental deficiency,” which is the language used by 11 states in their state codes. This type of language was common in the 1940s and 1950s, and is considered very inappropriate today. Also, many states failed to include any definitions for disabilities within their state laws relating to child protection.

All states have state laws outlining the grounds for termination of parental rights in relation to child abuse and neglect. When rights are terminated, parents lose all legal rights and ties to their children. The federal government mandates certain circumstances in which rights must be terminated, such as abandonment or excessive time in foster care. States vary in which other circumstances require termination of parental rights, including such grounds as chronic substance abuse, failure to maintain contact with a child, or failure to maintain support of a child.

A major concern about the inclusion of disability in the grounds for termination is that such inclusion can shift the focus from a parent’s behavior to a parent’s condition. Disability is one of the only grounds for termination that is based on a parent’s condition, rather than a parent’s behavior. While no state says that disability can be grounds by itself for termination of parental rights, if disability is included as grounds for termination, it can become the focus of a child protection case.

Several states have recently removed the disability language from their state termination of parental rights laws. One of these states, Idaho, has also added language in its state law that both protects people with disabilities from discrimination in child protection or child custody proceedings, and specifies that a parent with a disability has a right to demonstrate their parenting ability with the use of adaptive equipment or supportive services.

As a result of this review of state statues and the potential for discrimination, the authors, both researchers at the University of Minnesota, have brought together an advisory group to develop model legislation that self-advocates, advocacy groups, and disability professionals can use to mobilize efforts in their states to remove disability as a grounds for termination of parental rights (TPR) in their states. It should be noted that the focus and the work of this advisory group extends beyond TPR to include adoption, child custody statutes (separation, divorce, and guardianship). The objectives of the project include the development of a toolkit with strategies for creating legislative change, the provision of technical assistance to four states as they begin efforts to change their state legislation, and wide dissemination of the related research and product materials.

While currently parents with disabilities in many states may face discrimination in termination of parental rights proceedings, this can be changed. States should reconsider the inclusion of disability in TPR codes. At the very minimum, states should update the disability-related terminology and definitions in the TPR codes.

For additional information about the advisory group started by Drs. Lightfoot and LaLiberte, please contact them at [email protected] or [email protected]