'Unfit Solely Based on Their Disability'

A few years ago, when a lot of my work involved digesting child protection cases, I toyed with the idea of writing a blawg post on the issue of parents with disabilities whose children had been taken into care by the Province. 

Actually, I did more than toy with the idea; I began keeping track of those type of cases when they crossed my desk and started actively searching for ones from other provinces. In fact, I may still have that research around here somewhere although I would most likely be hard pressed to find it now.

Obviously, I never did get to that blawg post. Mainly because it became clear that the issue was huge and it was going to take no small amount of research and writing to put something together. And I was, in all fairness. rather occupied with other things at the time.

But the issue still fascinates (and disturbs) me from both a legal and parental point of view.

The test in such a situation is always (supposedly) the "best interests" of the child. Parents do not have a right to parent their children. Rather, children have the same basic rights and fundamental freedoms as adults and the additional right "to special safeguards and assistance in the preservation" of their rights and freedoms. And the presumption is that a child's needs will be best met in the care of his or her own family. 

But a presumption is not a certainty. Thus, parents are given legal "responsibility for the care and supervision of their children" and children are only to be removed from that supervision "when all other measures are inappropriate".

So at what point does it actually become the case that parents, due to their disability, cannot properly care for their child? And is it possible that children would ever be taken away from their parents due to some form of systemic discrimination against persons with disabilities?

But then again, can it even be that simple?

There are physical disabilities and there are intellectual disabilities. And there are individuals who have both. And, of course, most importantly, each case will should turn on its own unique fact situation, right?

All of which takes me to this report out of the US setting out the following issue:

A federal agency is warning the White House that more protections are needed to ensure the parental rights of those with disabilities.

Even as an increasing number of Americans with special needs choose to become parents, laws across the country routinely undermine their rights, according to a National Council on Disability report which was sent to President Barack Obama on Thursday.

In two-thirds of states, courts are allowed to deem a parent unfit solely based on their disability. And, disability can legally be taken into account in every state when assessing what’s in the best interest of a child, the council found.

The key, of course, is found in that last paragraph.

In two-thirds of states, courts are allowed to deem a parent unfit solely based on their disability. And, disability can legally be taken into account in every state when assessing what’s in the best interest of a child, the council found.

I have no issue with the second sentence - that "disability can legally be taken into account in every state when assessing what’s in the best interest of a child".

But it's one thing to take disability into account (just as you would take into account other factors, such as the support available to a family or parenting style) and completely another to disqualify a person from parenting their own child just because they have a disability. That, I would submit (and I'm sure you would agree) smacks of discrimination.

Apparently the National Council on Disability agrees. And the numbers are staggering.

Currently, some 6.1 million children in the United States have parents with disabilities. They are significantly more likely than other kids to be forcibly separated from their parents, the federal agency found.

Estimates suggest that among parents with intellectual disabilities, removal rates are as high as 80 percent. Similarly high rates are seen among parents with psychiatric disabilities.

Meanwhile, the council found that people with special needs are more likely to lose custody of their children after divorce and have more difficulty adopting kids.

Although I'm not aware of any Canadian province providing that the courts are allowed to deem a parent unfit solely based on their disability, I have a hunch that the situation is not that different in this country, albeit on a somewhat smaller scale. And although it would be really interesting to see the numbers for Canada, to the best of my knowledge, no one is actually paying attention. Or, at least, no one is compiling those statistics.

In the US, the National Council on Disability is recommending that new laws be implemented to protect the rights of parents with disabilities and that social services agencies work to better understand and accommodate parents with special needs.

Does that sound like too much to ask?

Light Dawns on Marblehead

As a follow-up to that July post concerning families in Indiana who were forced to legally admit neglect in order to obtain the mental health services their children required, I am pleased to report that state officials have unveiled a plan to provide such services for mentally ill or developmentally disabled children without requiring parents to plead guilty to neglect.

"This is a small, but important and complex population that presents a big struggle for many families. For decades, the only way these children have been able to get care is by entering the court system as a juvenile delinquent or to have their parents claim neglect so the child can become a ward of the state. And everyone agrees -- from state agencies, to prosecutors, to judges, to probation officers, to mental health experts, to families -- that is not the way to help these kids." -- DCS Chief of Staff John Ryan

Which, I suppose it was going to take strong pressure from somewhere to change the situation given that the state's Department of Child Services had publicly stated that the agency would not change any of its policies (those being the policies requiring parents to go through such a heart-breaking charade) even after a Court of Appeals' decision stating that a parent in such a situation should be "applaud[ed]", not "condemn[ed] ... through coercive action."

It would appear that in Indiana, at least in regard to this situation, light has finally dawned on marblehead. We can only pray (or demand) that it will also dawn elsewhere.

"In Need of Services" = "In Need of Protection"?

A very interesting decision out of the US, in which the Indiana Court of Appeals reversed a lower court finding that a mother had neglected her teenage daughter by refusing to pick her up from an emergency shelter.

Wait a minute, that sounds like abandonment, doesn't it?

Maybe but perhaps not if you have a good enough reason. In this case, the mother refused to take the girl home until she received counseling services.

Apparently the teenage daughter had a lot of behavioral issues, which the mother (a single parent) was attempting to address. And apparently it was the policy of the state's Department of Child Services to use a portion of state law that says parents are "unable" to provide necessary care as legal justification to "help" them secure services for their children with mental illness or a developmental disability.

In other words, in plain English, the government's policy was to substantiate neglect findings against a parent if the parent had legitimately been unable to access the services the child needed. Unable to access services because the government had, you know, refused to provide them.

Sound familiar?

The mother had twice called police after her daughter had become physically aggressive. Not surprisingly, police contacted DCS officials, who initiated an assessment and when, after the second incident, the woman refused to bring her daughter (who by that point had been diagnosed with oppositional defiant disorder) home until she received counseling, a petition was filed with the court alleging the girl was a "child in need of services" (which here, in Nova Scotia, we would refer to as a "child in need of protection") due to the mother's failure to provide necessary care.

Even though the mother had taken the child home a few weeks after first being requested and despite the fact that the Department's own investigation showed that the child, not the mother, had been the aggressor in the altercations, the girl was found to be "in need of services". To add insult to injury, the mother was ordered to participate in services and and pay DCS $25 per week for reimbursement of service costs.