The U. S. Department of Health and Human Services and Department of Justice Provide Technical Assistance to Courts and Child Welfare Agencies Regarding the Rights of Parents with Disabilities under 504 and the ADA
Today the Department of Health and Human Services (HHS) and the Department of Justice (DOJ) issued a technical assistance document: Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act ( https://www.ada.gov/doj_hhs_ta/child_welfare_ta.html ).
The introduction to the document notes that child welfare agencies and courts have a responsibility under the ADA and Section 504 to protect parents and prospective parents from discrimination in the administration of child welfare services. Of course, the courts and child welfare agencies also have a mandate to protect children from abuse and neglect. The document notes that these responsibilities are not necessarily contradictory:
“The goals of child welfare and disability non-discrimination are mutually attainable and complementary. For example, ensuring that parents and prospective parents with disabilities have equal access to parenting opportunities increases the opportunities for children to be placed in safe and caring homes."
Describing the need for this technical assistance, the Office for Civil Rights (OCR) within HHS and the Civil Rights Division of DOJ both noted a sharp and continuing rise in complaints of discrimination from individuals with disabilities who are involved in the child welfare system. Moreover, both the Office for Civil Rights and the DOJ Civil Rights Division in their enforcement activities have observed that courts and child welfare agencies vary in the extent to which they have implemented policies to protect the rights of parents with disabilities from unlawful discrimination. They give the following example:
"... In a recent joint investigation by OCR and DOJ of practices of a State child welfare agency, OCR and DOJ determined that the State agency engaged in discrimination against a parent with a disability. The investigation arose from a complaint that a mother with a developmental disability was subject to discrimination on the basis of her disability because the State did not provide her with supports and services following the removal of her two-day-old infant. The supports and services provided and made available to nondisabled parents were not provided to this parent, and she was denied reasonable modifications to accommodate her disability. As a result, this family was separated for more than two years."
Providing additional support for the need for technical assistance, the document refers to a 2012 report from the National Council on Disability (NCD) that found that:
"...parents with disabilities are overly, and often inappropriately, referred to child welfare services, and once involved, are permanently separated at disproportionately high rates. In a review of research studies and other data, NCD concluded that among parents with disabilities, parents with intellectual disabilities and parents with psychiatric disabilities face the most discrimination based on stereotypes, lack of individualized assessments, and failure to provide needed services. Parents who are blind or deaf also report significant discrimination in the custody process, as do parents with other physical disabilities. Individuals with disabilities seeking to become foster or adoptive parents also encounter bias and unnecessary barriers to foster care and adoption placements based on speculation and stereotypes about their parenting abilities."
There are two fundamental principles of Section 504 and Title II of the ADA: (1) individualized treatment; and (2) full and equal opportunity. Thus, the TA document advises that each situation involving parents and prospective parents with disabilities be dealt with individually and on a case-by-case basis.
To provide full and equal opportunity requires that parents with disabilities must be offered an opportunity to participate in child welfare programs, services, and activities that are equal to those extended to individuals without disabilities. Moreover, equal access may require "the provision of aids, benefits, and services different from those provided to other parents and prospective parents where necessary to ensure an equal opportunity to obtain the same result or gain the same benefit, such as family reunification."
The document then goes on to describe the basic requirements of Section 504 and Title II of the ADA and then provides sixteen detailed questions and answers clarifying those requirements and how they can be implemented. This has been a long needed tool to ensure that parents with disabilities have equal access to child welfare services.