Justice Department and Department of Health and Human Services Affirm
ADA applies to Child Welfare
Department of Health and Human Services (DHHS) affirmed in late January 2015 that federal law entitles parents with developmental disabilities to special child welfare accommodations and services. Their rights arise under the Americans with Disabilities Act (ADA) and the Rehabilitation Action (Title II and Section 504). The civil rights divisions of both federal agencies conducted a joint investigation that found disabilities rights violations by the Massachusetts Department of Children and Families (DCF) as outlined in the letter from the two federal agencies on January 29, 2015.
The Massachusetts child welfare agency was found to have violated the ADA and Section 504 by denying a mother with developmental disabilities the opportunity to benefit from supports and services. The agency removed her two-day-old infant from the hospital, and she waged a two-year battle in an unsuccessful effort to reunify with her daughter. An important element of the mother’s success in this case came from her ability to obtain a “competence based family assessment” from an expert qualified in developmental disabilities and parenting. Dr. Nicole Brisson (Sage Haven Associates, Vermont) not only assessed the mother’s capacity to parent with supports, but also was able to establish that the child welfare agency’s insistence upon the mother’s submitting to a neuropsychological evaluation was inappropriate and misguided. DOJ and DHHS made special note of Dr. Brisson’s finding that neuropsychological evaluations are often not conducted by individuals with specialized knowledge of parents with disabilities, they are standardized against a population that does not include appropriate norms or accommodations for parents with disabilities, and they often lead to improper conclusions. As Dr. Brisson explained: “Parenting is a complex set of variables that cannot be reduced to simply tests. Instead the parents’ learning style/ability is better evaluated through direct clinical observation.”
In violation of their obligations under ADA and Section 504, the child welfare agency relied upon “discriminatory assumptions and stereotypes” about the mother’s disability “without consideration of implementing appropriate family-based support services.” They found that the agency continued to deny the mother “access to appropriate family-based support services it makes available to parents to successfully achieve reunification and has failed to reasonably modify its policies, practices, and procedures to accommodate (her) disability.” Instead they “assumed that the mother was unable to learn how to safely care for her daughter because of her disability, and, therefore, denied her the opportunity to receive meaningful assistance from her mother and other service providers during visits.” The child welfare workers supported a change in the permanency goal to adoption and sought to terminate the mother’s parental rights on the basis of her disability. The letter of findings asks the child welfare agency to “immediately implement services and supports for an appropriate amount of time to provide the mother a full and equal opportunity to pursue reunification with the child, in consideration of two years of denials, and the “evaluations of the professionals that have opined on this case.” In addition, they awarded damages to the parent, and mandated training for DCF personnel. The joint Letter of Findings is available on ADA.gov.
For more general information on the Americans with Disabilities Act visit ADA.gov, or call the toll-free ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).
Rocking the Cradle State Legislation
Despite the growing need for foster and adoptive parents for the more than 400,000 children living in the foster care system, prospective parents with disabilities remain an untapped resource. In 2012, NCD’s Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Children, showed that the foster care and adoption systems are riddled with discriminatory practices that forestall prospective parents with disabilities the opportunity to open their hearts and homes to children who so desperately need them.
Equally, it is imperative for the child welfare system to prevent unnecessary foster care placements resulting from bias and disparate treatment and instead promote safe reunification for parents with disabilities and their children. As detailed in NCD’s Rocking the Cradle, parents with disabilities and their families are frequently, and often unnecessarily, forced into the system and, once involved, lose their children at disproportionately high rates. Indeed, with removal rates as high as 80%, the children of parents with disabilities are unjustly overrepresented in foster care. Moreover, NCD’s Rocking the Cradle found that children of parents with disabilities often linger in foster care for longer periods because of discriminatory practices that prevent appropriate reunification. Notably, according to Casey Family Programs, for every $6 spent to maintain children in foster care, only $1 is available to be invested in a wider array of services that prevent the need for foster care.[i]
Accordingly, TASP joins NCD in urging the immediate implementation of Rocking the Cradle’s recommendations to promote opportunities for prospective foster and adoptive parents with disabilities and eradicate practices that cause unnecessary foster care placements and prevent swift reunification for parents with disabilities and their children.
We call upon state legislatures to pass legislation that would prohibit discrimination against parents with disabilities and their children in accordance with the model legislation in Rocking the Cradle. We also join NCD in commending Idaho, Kansas, Missouri, Tennessee, Washington, and Oregon for passing legislation that ensures the rights of parents with disabilities as well as Massachusetts, who is currently considering legislation based on Rocking the Cradle. NCD urges all states to eliminate disability from their child welfare laws as grounds for termination of parental rights and enact comprehensive legislation based on the model legislation in Rocking the Cradle.
Please read the important information below and pass on to others in your network!
We are passing along important information that will require your immediate attention and immediate action regarding the need to ratify the Convention on the Rights of Persons with Disabilities. But, first a little background…
On July 30, 2009, the United States signed the Convention on the Rights of Persons with Disabilities (CRPD). The CRPD is the first international treaty to address disability rights globally. While the Convention does not establish new human rights, it does set out greater clarity of the obligations on States to promote, protect and ensure the rights of persons with disabilities.
So far, 143 countries have ratified the “Disability Treaty”, called the Convention on the Rights of Persons with Disabilities (CRPD).
But the U.S. has not yet joined them. This has the potential to slow down advances in disability rights in other countries around the world.
We need student and youth volunteers and other campus leaders at U.S. colleges/universities to help change that. People like YOU – and we need you NOW if we are going to pass the CRPD in 2014!
This is where your attention and action is needed!
Advocacy is particularly needed with Republican Senators, as 6 more are needed for a “supermajority” needed to ratify the treaty. Please contact your State Republican Senators to communicate how important their vote is to ratify this important treaty.