Analysis Law and Policy

For Parents Around the Country, Having a Disability Can Mean Losing Custody of Their Kids

Robyn Powell

This week, Colorado considers legislation that would help protect disabled parents from losing their parental rights.

In 2012, Sara Gordon, a young mother with an intellectual disability, had her 2-day-old daughter taken by the state of Massachusetts and placed in foster care. Specifically, the state believed she was unable to care for her newborn because of her disability, based on difficulty officials said she displayed with feeding and diapering. While these are common challenges for most new mothers, for Gordon, it led to a battle involving the federal government. After more than two years, she regained custody of her daughter.

Gordon’s story is not unique. As people with disabilities become more integrated into their communities, a growing number are becoming parents. Researchers estimate that at least 4 million parents in the United States—roughly 6 percent of the parent population—have a disability. At the same time, disabled parents often contend with bias and speculation concerning their parenting ability, especially by the child welfare system.

More than two-thirds of state child welfare laws still allow for a parent’s disability to be considered for the purposes of terminating parental rights. And tellingly, a recent study found that 19 percent of children in foster care had been removed from their home at least in part because they had a disabled parent. According to the National Council on Disability, “The child welfare system is ill-equipped to support parents with disabilities and their families, resulting in disproportionately high rates of involvement with child welfare services and devastatingly high rates of parents with disabilities losing their parental rights.”

Now, however, legislatures across the country are considering changes to state laws that would ensure the rights of parents and prospective parents with disabilities, along with their families. This week, a committee in the Colorado House will vote on the Family Preservation for Parents With Disability Act (HB 18-1104). The bill, sponsored by Rep. Jessie Danielson (D-Wheat Ridge), establishes safeguards for parents and prospective parents with disabilities—which “are critical to family preservation and the best interests of the children of Colorado.”

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HB 18-1104 is based on the idea that ensuring the rights of parents with disabilities is compatible with protecting the bests interests of children. To that end, the legislation establishes a number of protections: First, the bill prohibits a parent’s disability from serving as the basis for denying or restricting custody, visitation, adoption, foster care, or guardianship, when it is otherwise considered to be in the best interest of the child. Second, the legislation requires courts to consider the benefits of providing supportive parenting services, which may assist parents or prospective parents with disabilities in fulfilling parenting responsibilities, when determining custody, visitation, adoption, foster care, and guardianship. Finally, the bill requires the state’s child welfare agency to provide reasonable accommodations to parents with disabilities and their families based on individual need.

Last month, Carrie Ann Lucas, executive director of Disabled Parents Rights, along with several parents with disabilities, testified before the Colorado House Committee on Public Health Care and Human Services in support of HB 18-1104. “In my parent defense practice, between 75 and 80 percent of my clients in child protection cases had a disability. Oftentimes disabled parents are not receiving the accommodations they are entitled to. Too often decisions are made to prevent a child from going home, without providing parents a fair opportunity to parent,” Lucas told Rewire.News.

“This bill provides some checks and balances for families, ensuring parents have a fair chance to parent, and ensuring children are not denied the opportunity to live in the family of origin due to discrimination,” she continued.

Notably, there is opposition to the legislation. According to CBS Denver, “Some social workers are concerned the bill goes too far and one lawmaker suggested better training for social workers, in how to accommodate parents with disabilities, may be a better approach.”

According to the National Research Center for Parents with Disabilities (full disclosure: I am employed there as an attorney and researcher), 16 states have successfully passed similar legislation. Last year, for example, South Carolina Gov. Henry McMaster (R) signed the Persons with Disabilities Right to Parent Act (H 3538) into law. This legislation prohibits discrimination against parents and prospective parents with disabilities in matters of custody, visitation, child welfare, guardianship, and adoption. The bill also eliminates disability as grounds for termination of parental rights.

The legislatures in ten more states, including Colorado, are considering bills that would forbid discrimination in the child welfare, family law, and adoption systems based on parental disability.

Nonetheless, not all states have been successful. For example, advocates in Massachusetts have been pushing their legislature to pass an act prohibiting discrimination against adults with disabilities in family and juvenile court proceedings for nearly four years.

These policies can have devastating effects on families, especially for those who are already at higher risk of being targeted by the child welfare system.

Heather Watkins, a Black disabled woman, disability rights advocate, writer, and mother, is among those who have been steadfast in urging lawmakers in Massachusetts to pass legislation that would prevent discrimination against parents with disabilities. She told Rewire.News, “As a disabled parent of color, I am deeply concerned about protecting the rights of parents with disabilities. No one should have to worry that their disability will be used adversely to separate them from parenting their children.”

Jennifer, a mother who requested that Rewire.News use a pseudonym for her, has epilepsy and bipolar disorder; she is also a stroke survivor who lives in a state without legal protections for disabled parents. Recently, she told Rewire.News that she had a “bogus” call made to her state’s child welfare agency after women from her boyfriend’s church unexpectedly stopped by their home.

“We were unloading groceries [from the car and] it was cold and raining so I was dropping them in the living room,” she recounted. The women told her that her house was “deplorable” and days later a social worker showed up at her door. Jennifer continued, “I’m not the most organized but my kids weren’t in danger and now a child really needing help went unserved.”

“I was terrified I’d lose my kids,” she told Rewire. “I was scared [that] once I told them of my stroke and bipolar, it would be used against me.” Jennifer was equally worried about the wellbeing of her three children, all of whom also have disabilities. She was especially concerned that her son, who has physical, intellectual, and emotional disabilities, would be institutionalized because others would be unable to care for him. Luckily, upon meeting with Jennifer, the child welfare agency closed their report, finding no problems.

Others, however, face different consequences. Longstanding research has revealed the overrepresentation of certain racial and ethnic populations—including Black and Native people—in the child welfare system when compared to their numbers in the general population. In addition, disability rates are higher among Black and Native parents, meaning that many disabled parents face double discrimination because of their multiple marginalized identities. “As persons of color and parents, our abilities are often second-guessed, given a side-eye, and profiled in disproportionate ways,” Watkins said.

Amy Mulzer, instructor of clinical law in Brooklyn Law School’s Disability and Civil Rights Clinic, agrees. She told Rewire.News, “All parents with disabilities are at risk of discrimination as a result of societal assumptions about their ability to parent. But when you are a parent with a disability who is also a person of color or low-income or a member of the LGBTQ community, the risk is that much greater.”

Mulzer has represented many parents with disabilities who are also members of other vulnerable communities. “You face a real danger of losing your children to the child welfare system, and once your children have been removed, it’s almost impossible to get the accommodations you need to complete your court-ordered case plan and bring them back home,” she said.

Contrary to pervasive stereotypes about the capabilities of parents with disabilities, having a disability does not inherently make someone an unfit parent. In fact, research has consistently found that the majority of parents with disabilities and their children fare quite well when given the opportunity. Scholars are now beginning to take notice of the many ways in which children actually benefit from having a disabled parent, such as exhibiting increased empathy. Likewise, having a disability may be beneficial to parents. “Disability permeates every aspect of my lived experience and has factored in key quality of life decision-making and helped chart the course of my life’s trajectory. My parenting has benefited as I’ve had to consider how I would respond to challenges knowing that my child would be a direct recipient of how I internalized my disability,” Watkins told Rewire.News.

The right to raise a family is undeniably one of our most cherished in the United States. However, for people with disabilities, especially those from marginalized communities, it is often challenged solely because of bias and speculation. Changing state laws is an important first step to finally addressing this unjust treatment—in addition to shifting priorities toward creating stronger societal support for everyone, including those with disabilities.

As Watkins put it, “Though it hasn’t always been easy, I’m grateful for the dimension and experience that being a disabled parent has granted me. I know that adaptations, support networks, and eliminating access barriers—structural and attitudinal—are keys to greater quality of life.”

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