Losing Parental Rights
In many states, a parent’s
disability can be grounds
for taking away their children
by Elizabeth Lightfoot and Traci LaLiberte
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
“Disability
is one of the only grounds for termination that is based
on a parent’s condition, rather than a parent’s
behavior.”
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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laws used outdated terminology and imprecise definitions for describing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
“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.”
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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 elightfo@umn.edu or lali0017@umn.edu
