'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?

For Whom The Bell Tolls

Very interesting situation going on in Minnesota at the moment - apparently, the law there as it now stands provides that persons subject to a guardianship order retain the right to vote unless a judge explicitly takes it away.

Some are trying to get that changed to provide that a person subject to guardianship cannot vote unless a judge orders otherwise. They fear that the votes of some persons with disabilities are being manipulated. The article refers to "guardianship voting" - I'm not sure exactly what that means but they also speak about group home workers taking their "charges" to vote and possibly influencing their votes - although I have to wonder how many of those group home residents are actually subject to guardianship. My guess is that most aren't.

In Nova Scotia (which easily has the most archaic guardianship system in the country), many rights are automatically taken away from a person subject to a guardianship order, including the right to vote.

Although I think I know what my readership will say, what do you think?

Should people who have been declared incompetent still be allowed to vote? If so, what (if any) measures should be put in place to ensure that their votes aren't being illegally manipulated?

Our American Friends

South of the border the debate continues on the UN Convention on the Rights of Persons with Disabilities. Is it good? Or is it bad?

Despite bipartisan support for a United Nations disability rights treaty, a group of Republican lawmakers is holding up U.S. Senate consideration of the matter.

The Senate Foreign Relations Committee planned to consider the U.N. Convention on the Rights of Persons with Disabilities last week, but was unable to after Sen. Jim DeMint, R-S.C., and a number of other Republicans reportedly placed a hold on it.

The move effectively squashed efforts by supporters of the treaty to get the U.S. to ratify it before the 22nd anniversary of the Americans with Disabilities Act on Thursday.

While the U.S. initially signed the U.N. Convention in 2009, Senate approval is needed for ratification of the treaty, which calls for greater community access and a better standard of living for people with disabilities worldwide.

Why, you ask?

Why would any part of the American government be reluctant to ratify an international convention recognizing the rights of person with disabilities? Rights which surely must be recognized and held in high esteem in such a great democracy as the US, a shining city uppon a hill?

For the very same reason that the US is hesitant (or outright refuses) to ratify other international conventions, of course.

The delay comes amid opposition from the Home School Legal Defense Association which is urging its members to tell Congress that the treaty “surrenders U.S. sovereignty to unelected U.N. bureaucrats, and will threaten parental control over children with disabilities.”

In a statement to the Capitol Hill newspaper The Hill, a DeMint spokesman said he wanted to delay the treaty over largely similar concerns..

That's right, folks. It just wouldn't do to have anyone else telling them what to do to or [gasp] interfere with their sovereignty.

Although I have to wonder just how well that is working for them.

The failure of the US to join with other nations in taking on international human rights legal obligations has undercut its international leadership on key issues, limiting its influence, its stature, and its credibility in promoting respect for human rights around the world.

And I must admit, I do find this thinking somewhat puzzling.

Sen. DeMint strongly opposes this treaty, as the United States is already the world leader in addressing the needs of the disabled and it’s foolish to think Americans need to sign away our sovereignty to exert our influence around the world.

So let me get this straight ... because the US is the world leader in addressing the needs of the disabled (I wonder what their own people have to say in that regard?) and they can/will continue to exert their influence around the world (now, here is where I get lost ... are they referring to their influence with regard to recognizing the rights of persons with disabilities?) because naturally they will have so much more moral clout around the issue given that they refuse to sign the Convention?

I must say that I find it particularly strange that the HSLDA is such a vocal opponent. Perhaps they are concerned that constitutionally enshrining "the right of persons with disabilities to education" [Art. 24] will somehow interfere with a parent's right to "direct the education of their children and to protect family freedoms."

Oh, wait, now I get it.

There is no doubt that the Obama administration is waiting to see how they do on this convention to push through an entire package of UN treaties—chiefly the UN Convention on the Rights of the Child, CEDAW (the women’s treaty), and the small arms treaty.

The poor souls are afraid. Afraid, I tell ya.

Posted Without Comment

Visit msnbc.com for breaking news, world news, and news about the economy

All I Want For Christmas ...

It struck me today that perhaps I should be looking for a (belated) Christmas present.

The parents of students with autism or other developmental disabilities would have more choice and control over their children's education under legislation that received bipartisan support from Oklahoma lawmakers Tuesday.

The measure, which will be considered by the 2010 Legislature that convenes on Feb. 1, would qualify special needs students who have an individualized education program for a state-funded scholarship to attend any school accredited by the state Board of Education.

It would also expand the Self-Directed Care Program to provide greater benefits to developmentally disabled Oklahomans who receive state support.

Interestingly enough, the measure is said not to involve an increase in spending. Which is a good thing when Oklahoma faces a $729 million budget shortfall. Rather it would redirect how existing funds are spent to educate developmentally disabled students.

In fact, it's asserted that such "scholarship bills" for special needs students could save money for the state as well as parents by having state funds follow students and allowing their parents to place them in a school that best meets their educational needs. [I do believe that's what's known as "portability" ... too bad Nova Scotia couldn't figure it out.] Families will be provided a monthly budget and allowed to directly hire care staff. They can also use the program to get much needed respite care.

Save the government money while empowering parents to choose the best educational setting for their child? Sound too good to be true?

Nothing's ever that simple, is it?

It strikes me that some (at least in this country) might argue against such an approach on the basis that it runs counter to "inclusion". Although I would tend to think that giving parents (as opposed to school boards or government departments) the decision as to the best place for their child to attend school should alleviate a lot of that concern.

Supposedly we have something similar in Nova Scotia for students with ADHD, autism spectrum disorder and learning disabilities. Notice I say "supposedly". That's because given the cost of some of the specialized schools in this province, the pitiful amount the government contributes makes it only a dream fantasy for many families.

Not exactly a scholarship, eh?

A Good First Step

How on earth did we ever miss this?

Maybe because we're too busy whining about what he can't get right? Or maybe it just isn't considered newsworthy...

Either way, it's something that should be recognized. And acknowledged.

Yes, I realize it's only a step. But a first step is better than no step, no?

And then we might just ask when a similar move might be made in Canada.