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Should the Disabled Have to Fight for the Right to Parent?

Posted on Dec 15, 2012

If you are a disabled American, your disability may not be used as grounds for discrimination in employment, government, commercial facilities, public accommodations, telecommunications, or transportation. Your basic right to parent, though, is not protected.

An estimated 6.1 million children in the U.S. have disabled parents. Many of these children are at risk for being taken from their homes and families—not because they don’t receive adequate care, but because of misconceptions about disability.

The National Council on Disability, an independent federal agency, recently published a report on parenting among the disabled. According to the report, which is titled “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children,” the American legal system is not providing adequate protection of the rights of parents with disabilities. In fact, in most states, child welfare laws allow the courts to consider disability when determining whether a parent is fit to raise his or her children

The 445-page report cites many examples of legal cases in which the disability of one or both parents was a factor, such as:

  • A Kansas City couple’s two-day-old daughter was taken into custody by the state of Missouri because both parents were blind. A nurse reported the mother as an unfit parent after she had difficulty during her initial attempts at breastfeeding. It took 57 days for the couple to regain custody of their daughter.
  • A Chicago woman who is a Navy veteran had to fight for 18 months to keep custody of her young son after an ex-boyfriend accused her of being an unfit parent because of her quadriplegia.
  • A California woman was told that her cerebral palsy might make her an unsuitable candidate to adopt a child. The woman, who was a successful professional, and her husband, a physicist at Stanford University, had already paid an advance adoption fee. The adoption agency only relented after the prospective parents paid an occupational therapist to assess the woman’s capabilities and conducted research to learn how other parents with disabilities had been successful in raising children.

Cases like these can be found throughout the country. Removal rates are as high as 80 percent when parents have a psychiatric or intellectual disability. In general, parents with physical or mental disabilities are more likely than nondisabled parents to face barriers when attempting to adopt, to be denied assisted-reproductive treatments, and to lose custody of their children in a divorce.

Child-welfare experts say that while they strive to keep families together, the removal of children from their parents, especially in cases of significant intellectual disabilities, is sometimes necessary to protect the child’s health and welfare. The report stresses that support networks for disabled parents should be viewed positively and not seen as evidence that the parents are not capable.

The authors of the report believe that terminating parental rights on the grounds of disability is a clear violation of the intent of the 1990 Americans with Disabilities Act.

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John L. Keefe
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Founding Attorney of Keefe Disability Law