On November 14, 2017, Washington College of Law’s Disability Law Society and Family Law Society hosted “Rocking the Cradle: The Rights of Parents with Disabilities.” The hosts invited four experts on the issue: Molly Burgdorf and Carla Carter, who are both civil rights analysts for the U.S. Department of Health and Human Services; Sarah DeCosse, who is an attorney advisor in the disability rights section of the civil rights division of the U.S. Department of Justice; and Joan Durocher, who is the general counsel and director of policy for the National Council on Disability. Each panelist spoke for about ten minutes in total, and a variety of issues relating to the rights of a parent with disabilities was covered.
Ms. Durocher started by talking about a report that the National Council on Disability created called Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children. The report found that discrimination against parents with disabilities is extreme. It is one of the only groups in the U.S. who must fight to retain or even to gain parental rights. Ms. Durocher emphasized this by telling the story of a baby who was taken away from two blind parents simply because they were blind. Those parents had to fight from the start for the right to be allowed to keep their child. The report recommended a number of things to do to prevent situations like this from happening. It encourages states that list disability as a reason to terminate parental rights to eliminate such statutes. The report found that thirty-seven states have these types of statues on the books. In addition, the report also recommended that the Department of Education build parenting skills into its curriculum for people with disabilities. The report further asked for better data collection and for Congress to address the problem.
Next, Ms. Carter spoke about the problems that parents with disabilities face by being lumped into one group. There are many different types of disabilities, and some conditions present far fewer obstacles to parenthood than others. Ms. Carter told the story of one woman who was unable to work and decided that she wanted to at least provide a home for a child in need. She attempted to become a foster parent in Georgia. The foster care system there is overburdened and in need of homes. However, because she was supported through social security and suffered from fatigue, fibromyalgia, and depression, the state claimed that no child was deemed to be a good fit for her. In the end, she became a foster parent through an independent agency. This agency used the same laws, but because they were willing to work with her, a child got a loving home. Ms. Carter stated that parents with disabilities may not fit into the same mold as everyone else, but that does not make them incapable of being parents. She stated that although parents with disabilities may need hands-on training, states should try asking these parents what they need and how the state can help, instead of taking their children away.
Ms. Burgdorf started by telling the story of disability rights in the U.S. It is a horrifying story. She began by mentioning Buck v. Bell, the 1927 Supreme Court decision which held constitutional a Virginia law allowing the government to forcibly sterilize people suffering from a “hereditary form of insanity or imbecility.” Ms. Burgdorf stated that although there is still a long way to go, the U.S. is certainly improving. Modern society explicitly prohibits discrimination against people with disabilities; however, in practice this is not always the case. The Americans with Disabilities Act has been very helpful. Although the statute is not an outright defense to the termination of parental rights it does help by giving more rights to people with disabilities in general. However, Ms. Burgdorf concluded that there is still a long way to go, noting that more than half the states still have laws allowing parental rights to be terminated because of a disability. She stated that although there is much that can be done, a good starting point is to support the families better. She used Vermont as an example of a state that is implementing this well. In Vermont there is a two-tier support network for families of disabled parents. The first tier is to set up a network of peer supporters who can help the families out. The second tier is systematic change, which included trainings designed specifically for parents with disabilities.
To end, Ms. DeCosse set out the legal foundations of disability law in the U.S. The two most monumental pieces of disability rights legislation have both happened in the last fifty years. The first was Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination based on disability in certain government programs and activities. The second is the Americans with Disabilities Act of 1990, which “guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life.” Ms. DeCosse stated that under these two pieces of legislation, individuals with disabilities should be getting as full and equal opportunities as individuals without disabilities. Individuals that are covered by these pieces of legislation include parents, legal guardians, adoptive parents, caretakers, foster parents and many more. Therefore, theoretically the rights of parents with disabilities should be protected. However, as was shown by the other panelists, that is not always the case.
All said, the event showed that although rights for parents with disabilities have improved immensely over the past one hundred years, and have especially been steadily improving recently, there is still a long way to go. Specifically, getting sate and federal agencies more aware of the problem and possibilities as to how to fix it would really help to continue improving the rights of parents with disabilities. Vermont was laid out as an example of a State that is working to improve the situation. Other states could do well to follow their example.