- For nearly 100 years, parents with disabilities have experienced fewer rights than their non-disabled peers.
- The Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act (ADA) protect parents and prospective parents with disabilities from unlawful discrimination in the administration of child welfare programs, activities, and services.
- Despite legal protections, parents with disabilities still are referred to child welfare services and permanently separated from their children at disproportionately high rates.
- Parents who believe they have experienced discrimination may file an ADA complaint online, by mail, or by fax. Another option is to file a complaint with the Office for Civil Rights through the Department of Health and Human Services (HHS). Read on for details about how and where complaints are filed.
In 1923, the Supreme Court of the United States (SCOTUS) established parental rights, but four years later parents with disabilities were denied those protections. In Buck v. Bell, May 2, 1927, SCOTUS ruled that persons with disabilities do not have fundamental rights to make private decisions regarding family life. The Americans with Disabilities Act (ADA) in 1990 attempted to correct some disparities, but parents with disabilities still have their children removed from their homes at disproportionate rates.
Here are a few Facts About Disability Rights for Parents, compiled by the National Council on Disability and the Christopher and Dana Reeve Foundation:
- In the United States, 4.1 million parents have disabilities.
- 1 in 10 children have a parent with a disability.
- 5.6 million Americans live with paralysis from stroke, multiple sclerosis, spinal cord injury, traumatic brain injury, neurofibromatosis, cerebral palsy, post-polio syndrome or other issues.
- 35 states include disability as grounds for termination of parental rights.
- Two-thirds of dependency statutes allow courts to determine a parent unfit, based on disability.
- In every state, disability of the parent can be included in determining the best interest of the child.
- The District of Columbia, Georgia, Kansas, Maryland, Mississippi, North Dakota, New Mexico, Ohio, Oklahoma, and South Carolina allow physical disability as the sole grounds for terminating parental rights, without evidence of abuse or neglect.
The ADA prohibits discrimination based on disability
The ADA makes it unlawful to discriminate against individuals with disabilities in all areas of public life, including jobs, schools and transportation. The federal law, which is upheld by the Office for Civil Rights, covers all public and private places that are open to the general public. Under the ADA, people with disabilities have the right to equitable access. Equity doesn’t mean equal: It means that accommodations are provided to ensure access to something that everyone else has access to.
In 2008, the Americans with Disabilities Act Amendments Act (ADAAA) was signed into law. The ADAAA made significant changes to the definition of disability. The ADA is organized in sections called “Titles,” and the ADAAA changes applied to three Titles of the ADA:
- Title I: Covers employment practices of private employers with 15 or more employees, state and local governments, employment agencies, labor unions, agents of the employer and joint management labor committees
- Title II: Covers programs and activities of state and local government entities, including child welfare agencies and court systems
- Title III: Covers private entities that are considered places of public accommodation
Equitable parenting opportunities are a Civil Right
Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 protect parents and prospective parents with disabilities from unlawful discrimination in the administration of child welfare programs, activities, and services. Section 504 also protects students with disabilities, and PAVE has an article about that.
The goal of the ADA and Section 504 as it applies to parents and prospective parents is to ensure equitable access to parenting opportunities. Also, these Civil Rights laws recognize that separation of parents from their children can result in long-term negative outcomes. The ADA requires child welfare agencies to:
- Give a fair chance to parents with disabilities so they can take part in programs, services, or activities.
- Provide help to make sure people with disabilities understand what is being said or done.
- Prevent barriers that make programs, activities or services hard to access because of disability.
Title II of the ADA and Section 504 also protect “companions”—people who help individuals involved in the child welfare system. A companion may include any family member, friend, or associate of the person who is seeking or receives child welfare services. For example, if a helper person is deaf, the child welfare agency provides appropriate auxiliary aids and services to ensure effective communication.
Discrimination leads to family separation
According to a comprehensive 2012 report from the National Council on Disability (NCD), parents with disabilities are often inappropriately referred to child welfare services. Once involved, these agencies permanently separate families impacted by disability at disproportionately high rates.
According to the report, discrimination most commonly involves parents with intellectual and psychiatric disabilities. 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 encounter bias and barriers to foster care and adoption placements. The NCD linked the discrimination to stereotypes and speculation about parenting ability rather than evidence of problems in the home. The agency found a lack of individualized assessments and that many families weren’t receiving needed services.
The ADA and Section 504 provide Civil Rights protections against retaliation or coercion for anyone who exercises anti-discrimination rights. ADA complaints can be filed online, by mail, or by fax.
To file an ADA complaint online:
Americans with Disabilities Act Discrimination Online Complaint Form | (en Español)
Instructions for submitting attachments are on the form.
To file an ADA complaint by mail, send the completed ADA complaint form to:
US Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division
Disability Rights Section – 1425 NYAV
Washington, D.C. 20530
To file an ADA complaint by facsimile, fax the completed ADA complaint form to: (202) 307-1197
Individuals also may file complaints with the Office for Civil Rights at the Department of Health and Human Services (HHS). For instructions to file in English or other languages, go to How to File a Civil Rights Complaint.
Always save a copy of the complaint and all original documents.
For more information about the ADA and Section 504, call the Department of Justice ADA information line: 800-514-0301 or 800-514-0383 (TDD), or access the ADA website.
Visit the following websites for additional information:
Parenting with a Disability: Know Your Rights Toolkit
Protection from Discrimination in Child Welfare Activities
Children’s Bureau – An Office of the Administration for Children and Families
Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children
Parental Disability and Child Welfare in the Native American Community
Protecting the Rights of Parents and Prospective Parents with Disabilities