NCD Issues Major Report on Parents with Disabilities

Jonathan Young and his colleagues on the National Council on Disability are really doing terrific work.  Today, the Council issued this must-read report entitled Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children.  From the executive summary:

These parents are the only distinct community of Americans who must struggle to retain custody of their children. Removal rates where parents have a psychiatric disability have been found to be as high as 70 percent to 80 percent; where the parent has an intellectual disability, 40 percent to 80 percent. In families where the parental disability is physical, 13 percent have reported discriminatory treatment in custody cases. Parents who are deaf or blind report extremely high rates of child removal and loss of parental rights. Parents with disabilities are more likely to lose custody of their children after divorce, have more difficulty in accessing reproductive health care, and face significant barriers to adopting children. 

Clearly, the legal system is not protecting the rights of parents with disabilities and their children. Fully two-thirds of dependency statutes allow the court to reach the determination that a parent is unfit (a determination necessary to terminate parental rights) on the basis of the parent’s disability. In every state, disability may be considered in determining the best interest of a child for purposes of a custody determination in family or dependency court. In theory, a nexus should always be shown between the disability and harm to the child, so that a child is taken from a custodial parent only when the parent’s disability is creating a detriment that cannot be alleviated. However, this is not the reality. 

Discrimination against parents with disabilities is all too common throughout history, and it remains an obstacle to full equality for people with disabilities in the present. Furthermore, this problem is not limited to traditional categories of disability, such as physical or sensory impairments. Discrimination by legal authorities and in child custody proceedings against parents with emerging disabilities is common as well. For example, as improved diagnosis and expanding diagnostic criteria have enhanced identification of children and adults on the autism spectrum, discrimination against parents diagnosed as autistic has emerged as a serious and ongoing systemic problem. As our society recognizes autism and other newly identified disabilities in a greater percentage of the next generation, the percentage of the American public susceptible to discrimination will increase. Parents who belong to these groups will experience the same abuses of their civil rights that parents with psychiatric disabilities currently experience; notably, status-based removals and deprivation of due process protections such as reunification services. 

This report recommends actions that should be taken immediately to ensure the rights of parents with disabilities and their children. Whether action is taken at the state or federal level, as an amendment or a new law, the need for action could not be more timely or clear.