Overview of Existing Legislation
AS PREVIOUSLY STATED, no less than 33 states currently list disability as grounds for termination of parental rights. As of this writing, those states are Alabama, Alaska, Arizona, Arkansas, California, Delaware, Georgia, Hawaii, Illinois, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Tennessee, Texas, Virginia, Washington, Washington DC, and Wisconsin. Of the states listed, only Kansas, Missouri, and Oklahoma stipulate that disability cannot be the sole grounds for termination of a disabled parent's rights.28 One additional state, Utah, does not refer to disability specifically but does use language vague enough that it could be construed as doing so, stating that a parent's rights may be terminated in the event "that the parent is unfit or incompetent" and "that there is a substantial likelihood that the parent will not be capable of exercising proper and effective care in the near future."29 These statutes run counter to the Americans with Disabilities Act as well as to Section 504 of the Rehabilitation Act, both of which prohibit state and local agencies such as those in the child welfare system from categorically discriminating on the basis of disability, yet they continue to inform state policy.
Of the states that include disability as grounds for termination of parental rights, 32 make specific mention of psychiatric disability or mental illness, 30 reference intellectual or developmental disabilities, and 9 list physical disabilities. Crucially, however, proceedings to terminate parental rights due to disability are often undertaken even in states where disability is not included as grounds for doing so. Erika Johnson and Blake Sinnett, the blind couple referenced in this brief's introduction, had their baby placed in foster care in Missouri in 2010 despite the fact that nowhere in Missouri law is physical disability listed as grounds for termination of parental rights.30 In Oregon, where Amy Fabbrini and Eric Ziegler fought for four years to regain custody of their sons, no disability of any kind is listed as grounds for termination. We find, therefore, that in order to best support the rights of parents with disabilities, even those states that do not include disability in their grounds for termination of parental rights must join those that do in enacting legislation that actively prohibits discrimination in dependency court proceedings on the basis of disability.
States that have eliminated disability as grounds for termination of parental rights include Colorado, Idaho, South Carolina, and West Virginia.31 New York, Oregon, and Rhode Island are working toward enacting similar legislation.32 Washington has enacted a bill specifically to counteract discrimination against parents with intellectual or developmental disabilities.33 In spite of these praiseworthy steps toward equity, however, discrimination persists and must be dealt with via further action at the state level.
Parents with disabilities who find themselves navigating the family court system may fare marginally better than those in the dependency court system. In 2017, the American Bar Association's House of Delegates adopted Resolution 114, which urges equal protection for parents with disabilities regarding child custody, visitation, and other family matters and which is modeled in part on a similar resolution passed on behalf of LGBTQ parents. The ABA's resolutions are, in part, a way in which issues are brought to the attention of state-level lawmakers and the judiciary around the country. The ABA's action is timely, and the attention from state actors, greatly needed. Yet still, only California, Idaho, Maryland, Minnesota, Nebraska, Oregon, Tennessee, and Utah have enacted legislation that explicitly prohibits family courts from considering parental disability in judgment awarding custody or visitation unless clear and convincing evidence shows that it affects the child's best interest.34 Similar legislation is under review in Massachusetts, New York, Rhode Island, and Virginia.35 Illinois and South Carolina have enacted legislation specifically to protect the rights of blind parents in family court proceedings,36 while Georgia, Hawaii, New York, Ohio, Oregon, and Virginia are in the process of doing the same.37
While we are happy to see states moving toward more equitable legal treatment of parents with disabilities, our findings indicate not only that more states need to take action to adopt such legislation but also that the legal changes made should strive for broader comprehensiveness. The exclusion of dependency court proceedings from the legislation outlined in the above paragraph, as well as the exclusion of people with certain types of disability from much of that legislation, still leaves room for the rights of many disabled parents, particularly those rendered most vulnerable by race and socioeconomic status as well as by misconceptions about their specific disabilities, subject to legalized discrimination.
We find that despite the California Supreme Court's ruling in the landmark In re Marriage of Carney case (1979), which overturned the lower court's decision that a previous custody order should be altered because the father involved had sustained a spinal court injury and become quadriplegic, discrimination remains pervasive. A judge maintained that a mother with a mobility disability should not be awarded custody of her children despite multiple assessments documenting her capability because he assumed that her children would function as her attendants, despite the fact that the mother was independent and the children had no more than the usual amount of household chores38 and despite the preponderance of evidence revealing that the notion of children taking on extra care-giving duties as the result of having a disabled parent is rooted only in stereotypes, not reality.39 In North Dakota case Holtz v. Holtz, a mother lost primary custody of her seven-year-old son due to concerns about her developmental and learning disabilities despite the father's admission that he had had almost no contact with his son prior to the lawsuit.40 Stories like these are far from uncommon, and some disabled individuals have even stated that fear of losing custody of their children has prevented them from leaving abusive relationships.41 Clearly, further clarification of existing law as well as expansion of legal protections for parents with disabilities in family court proceedings are urgently needed.
The same is the case for protections for individuals with disabilities who wish to become foster or adoptive parents. Currently, only Colorado, Idaho, Maryland, Michigan, Missouri, Nebraska, South Carolina, and Wisconsin explicitly prohibit discrimination against prospective foster and adoptive parents on the basis of disability, though the Wisconsin legislation addresses physical disability only.42 The above-mentioned legislation currently under review in Rhode Island and Virginia would follow suit.43 All of the blindness-specific legislation, both currently enacted and pending enactment, also prohibits discrimination on the basis of blindness in state foster care and adoption systems.
Yet despite this progress, and despite the fact that Titles II and III of the Americans with Disabilities Act prohibit public and private adoption agencies from discriminating against prospective parents on the basis of disability, foster care and adoption proceedings remain riddled with de facto and de jure disability discrimination.44 A blind mother was denied the opportunity to adopt a four-year-old boy because the child, she was told, was "too active" for her to care for.45 A couple, both wheelchair users, waited 15 years to be matched with their child due solely to disability-based discrimination from birth parents and public and private adoption agencies.46 A couple successfully fostering two children while working to adopt them had to fight to regain custody after their agency learned that the mother was HIV+.47 They ultimately won their case, but tragically, the mother died the day after the adoption was finalized.
Stories like the above are legion and are devastating not only for the many parents with disabilities eager to provide safe and loving foster and adoptive homes but also for the countless children in need of permanent families in the US and around the world. Action must be taken at the state level to clarify and implement existing federal law.
Disabled parents seeking to have children with the aid of assisted reproductive technologies face similar legal barriers. In 2000, Kijuana Chambers, a blind woman from Colorado, filed a lawsuit after a fertility clinic refused to work with her, stating that her blindness posed a safety risk to her not-yetconceived child.48 After a lengthy battle, the 10th Circuit Court of Appeals sided with the clinic. "It was the right thing to do," an attorney on the case claimed.49
As we know from the opening paragraphs of this document, the United States has a long history of efforts to prevent individuals with disabilities from having children, so it should come as no surprise that stories like Chambers's are common. In surveys, 79 percent of physicians working in the assisted reproductive technologies field have indicated that they would refuse to work with a prospective mother with a severe genetic disorder, while 32 percent would refuse treatment to a prospective mother with a below-average IQ, 66 percent to a prospective bipolar mother, and 95 percent to an HIV+ mother.50 Such discrimination violates the Americans with Disabilities Act, under Titles II and III of which providers of assisted reproductive technology services who receive any federal funding, such as Medicaid or Medicare, are legally barred from discriminating on the basis of disability. We reiterate that state laws must codify this as well as clarify the ADA's direct threat provision, which allows medical professionals to refuse care to a patient if that patient poses a direct threat to others. As per ADA regulations, the determination that an individual poses a direct threat must be based on individualized assessments, medical expertise, and/or objective evidence, but in practice, it is often applied indiscriminately as in the case of Kijuana Chambers. State-level guidance to counteract this tendency should be implemented.
Beyond the shadow of a doubt, legally sanctioned discrimination against parents with disabilities is rampant, and its lifealtering consequences are devastating for parents and children alike. The situation must be remedied. In the next section, we will turn to the question of how this can best be accomplished.
- 28. Revised Kansas Code for Care of Children, Kan. Stat. Ann. 38- 2201, 2006; MO HB 604/SB 555, 2011; 10A Okl. St. Ann. 1-4- 90413, 2014
- 29. U.C.A. 1953 78A-6-507
- 30. V. A. M. S. 211.477, 2003
- 31. CO HB 18-1104, 2018; ID Code Ann. 16-1601, 16-2001(2), 32- 717(5), 32-1005(3), 2004; SC HB 3538/SB 291, 2017; WV HB 2200, 2015
- 32. NY AB 02444; OR SB 1526; RI HB 5395
- 33. HB 2616, 2014
- 34. CA SB 1188, 2010; ID 32-717, 2004; MD HB 976/SB 765, 2016; MN Stat. 518.17, 2005; NE HB 845, 2018; OR HB 2433, 2013; TN HB 693/SB 749, 2013; UT HB 157, 2017
- 35. MA HB 845/SB 896; NY AB 02444; RI HB 5395; VA SB 70
- 36. IL HB 2626, 2017; SC HB 4469/SB 687, 2014
- 37. GA HB 891; HI SB 2208; NY AB 0171/SB 02366; OH HB 309; OR HB 3392; VA HB 2273/SB 1199
- 38. Kirshbaum et al, 2003
- 39. Cohen, 1998; Olkin et al, 2006; etc
- 40. Holtz v. Holtz, 1999
- 41. Nosek et al, 2001
- 42. CO HB 18-1104, 2018; ID Code Ann. 16-1501, 2002; MD HB 976/SB 765, 2016; MI Comp. Laws Ann. 722.957, 1994; MO HB 604/SB 555, 2011; NE HB 845, 2018; SC HB 3538/SB 291, 2017; WI Stat. 48.82(5), 1991
- 43. RI HB 5395; VA SB 70
- 44. Shade, 1998; National Council on Disability, 2012
- 45. Adams v. Monroe, 1998
- 46. National Council on Disability, 2012
- 47. Doe v. Nebraska, 2003
- 48. National Council on Disability, 2012
- 49. USA Today, 2003
- 50. Shade, 1998; Mutcherson, 2009