Research & Evaluation
Termination of Parental Rights
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Examples of Modifications and Accommodations
Download Guide for Creating Legislative Change as a PDF.
The Project
The Disability and Parental Rights Legislative Change Project was initiated at the University of Minnesota as a collaborative project in the College of Education and Human Development between the School of Social Work and the Institute on Community Integration. The collaboration developed following the identification of discriminatory legislation within child custody and terminaton of parental rights statutes. The goal of the project is to assist interested groups in removing disability from these statutes to eliminate discrimination, with the ultimate goal of ensuring the safety, permanency and well-being of children. This guide provides an overview of the problem; key principles for protecting parents with disabilities; model statutory language and accompanying definitions; a legislative change strategy; practice suggestions for modifying services and providing parental accommodations; frequently asked questions and answers; and resources.
Background
Historically, social policy has regulated the parenting of people with disabilities in several different ways including forced sterilization, institutionalization and segregation. In the United States, some social policies have changed, however laws exist that can limit the parental rights of people with disabilities. More than two-thirds of states in the U.S. have laws that include “parental disability” as one of their grounds for termination of parental rights. Although recent research has found that parents with disabilities are not more likely to maltreat their children than parents without disabilities, studies have found very high rates of termination of the rights of parents with disabilities.
These legal obstacles to parents with disabilities reflect widespread attitudinal discrimination they face from the general public. For example, in the 1962/2007 Minnesota Survey of Attitudes Regarding Developmental Disabilities, over one-third of the respondents disagree with the statement, “People with developmental disabilities should be allowed to have children, just like everyone else.” These types of attitudes about disabilities are also reflected in many state laws regarding parenting (such as divorce and child custody statutes).
Both the Americans with Disabilities Act and the Rehabilitation Act prohibit state and local governments from discriminating against people with disabilities in their programs and services. However, one area that these anti-discrimination laws do not cover is child custody and child protection proceedings, and many parents with disabilities still face discrimination in these arenas.
Parental rights legislation
All states have state laws outlining the grounds for termination of parental rights in relation to child abuse and neglect. When rights are terminated, parents lose all legal rights and ties to their children. The federal law, The Adoption and Safe Families Act, mandates certain circumstances in which rights must be terminated, such as abandonment or excessive time in foster care. States vary in which other circumstances require termination of parental rights, including such grounds as chronic substance abuse, failure to maintain contact with a child, or failure to maintain support of a child.
A recent review of all state laws in the United States found that 36 states and the District of Columbia had laws that included disability-related grounds for termination of parental rights, while 15 states did not. All of the states that include disability in their grounds for termination specify explicit types of disabilities for courts to consider, including mental illness (36 states), intellectual or developmental disability (32 states), emotional illness (18 states) and physical disability (7 states).
Many of these state laws used outdated terminology and imprecise definitions for describing people with disabilities. For example, the most common combination of disability descriptions was “emotional illness, mental illness and mental deficiency,” which is the language used by 11 states in their state codes. This type of language was common in the 1940s and 1950s, and is considered very inappropriate today. Also, many states failed to include any definitions for disabilities within their state laws relating to child protection.
A significant concern about the inclusion of disability in the grounds for termination is that such inclusion can shift the focus from a parent’s behavior to a parent’s condition. Disability is one of the only grounds for termination that is based on a parent’s condition, rather than a parent’s behavior. While no state says that disability can be grounds by itself for termination of parental rights, if disability is included as grounds for termination, it can become the focus of a child protection case.
Several states have recently removed the disability language from their state termination of parental rights laws. One of these states, Idaho, has also added language in its state law that both protects people with disabilities from discrimination in child protection or child custody proceedings, and specifies that a parent with a disability has a right to demonstrate their parenting ability with the use of adaptive equipment or supportive services.
While, currently, parents with disabilities in many states may face discrimination in child custody and termination of parental rights proceedings, this can be changed. States need to reconsider the inclusion of disability in child custody codes. At the very minimum, states should update the disability-related terminology and definitions in their state’s codes.
Action
As a result of this review of state statues and the potential for discrimination, the Disability and Parental Rights Legislative Change Project brought together a mulit-disciplinary advisory group to develop model legislative language that self-advocates, advocacy groups, and disability professionals can use to mobilize efforts in their states to remove disability as a grounds for termination of parental rights (TPR) in their states. It should be noted that the focus and the work of this advisory group extends beyond TPR to include adoption, and child custody statutes (separation, divorce, and guardianship); all of which aims to promote the safety, permanency and well-being of children. The objectives of the project include the development of a guide with strategies for creating legislative change, the provision of technical assistance to four states as they begin efforts to change their state legislation, and wide dissemination of the related research and product materials.
Institute on Community Integration
http://ici.umn.edu
The Institute on Community Integration (ICI) was founded out of the belief that universities had a great deal to offer people with disabilities in our society. Bringing together expertise from different fields — from the health sciences to education, psychology, social work and many others — creates a center of academic strength to push the frontiers of knowledge, and to connect that knowledge and the development of ideas to the needs of people with disabilities, their families and their communities.
ICI, a University Center for Excellence in Developmental Disabilities based at the University of Minnesota, is home to six affiliated centers and over 100 projects. Its work is guided by the belief that all people with disabilities should experience the benefits of family and community living while receiving the services necessary to fully develop their potential in the areas of personal independence, self-care, educational and vocational achievement and social participation.
School of Social Work
http://cehd.umn.edu/ssw
Since its founding in 1917, the University of Minnesota School of Social Work (SSW) has contributed to the development of the field. It is ranked as one of the nation’s best schools of social work—a leader in creative learning ventures through distance education, interactive television, satellite, and independent study. SSW is home to five dynamic research and training centers and the national Social Welfare History Archives. As the nation’s first graduate social work program at a public land-grant university, the SSW has been a national and international leader in education and scholarship.
Through its Master of Social Work (M.S.W.) program, SSW prepares professionals for social work practice, equipping them with advanced skills to help individuals, groups, and communities enhance or restore social functioning and maximize favorable social conditions. The curriculum emphasizes social justice, the value of human diversity, and the empowerment of oppressed people, and emphasizes practice focusing on client strengths and problem-solving capacities to foster change at multiple levels. Our Ph.D. program develops scholars who provide new knowledge and leadership in the rapidly changing world of social welfare.