Appendix C: Model Legislation (State or Federal)
AN ACT TO PRESERVE FAMILIES THAT INCLUDE A PARENT WITH A DISABILITY
Congress finds that—
(1) a primary motivation in enactment of the Americans with Disabilities Act (ADA) was to end the subjection of people with disabilities to eugenics-inspired policies during the 20th century that deprived them of their fundamental right to procreate and raise their children;
(2) in enacting the ADA, Congress sought to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities”;
(3) while Congress expected that the Americans with Disabilities Act, and the regulations promulgated thereunder, would protect the 14th Amendment rights of individuals with disabilities to procreate and raise children, and the right of those children to be free from discrimination based on their association with a person with a disability (their parent), that expectation has not been fulfilled;
(4) 37 of the 50 states have promulgated child welfare statutes codifying parental disability as a separate and distinct basis upon which the state may seize and detain children and terminate parental rights; and child custody laws, using the best interest of the child standard, regularly deny parents’ custody of a child on the basis of parental disability, with little or no evidence of a nexus between disability and detriment to the child;
(5) the holding in In re Christina A., 261 Cal.Rptr. 903 (Cal. Ct. App. 1989) that disability-based exceptions to the due process requirements for reunification services in child welfare cases are constitutional and do not violate due process or equal protection and are not vague;
(6) the holding in In re Doe, 100 Haw. 335 (2002) that the Americans with Disabilities Act is never a defense to termination of parental rights;
(7) the holding in Adams v. Monroe County Dept. of Social Services, 21 F.Supp.2d 235 (W.D.N.Y. 1998) that totally unregulated discretion is vested with adoption agencies to determine whether a prospective parent’s disability is a legitimate barrier to adoption;
(8) that the states, exercising their recognized jurisdiction over child custody proceedings through administrative and judicial bodies, have often failed to provide accommodation as required pursuant to the ADA, while implementing and upholding invidious classification;
(9) as a result, an alarming number of families are unnecessarily broken up by the loss of custody or parental rights, and many prospective parents with disabilities are unable to build families through assisted reproductive technologies or adoption, based largely on the disability of the parent or prospective parent;
The purpose of this act is—
(1) to protect the best interests of children parented by people with disabilities by preserving their families, and to protect the rights of people with disabilities to procreate and raise children, through the establishment of minimum standards requiring adherence to the ADA and respect for the due process and equal protection rights of this population of parents in the context of child welfare, family law, adoption, and probate guardianship cases.
§ _____. Definitions
As used in this chapter:
(1) “adaptive parenting equipment” includes any piece of equipment or any item that is used to increase, maintain, or improve the parenting capabilities of a parent with a disability.
(A) acquisition or modification of such equipment or devices.
(2) “adaptive techniques” are defined as strategies for accomplishing child care tasks that enable parents with disabilities to execute the task safely for themselves and their children. Adaptive techniques can be useful alone or in conjunction with equipment.
(3) “adoption” refers to the legal process by which a minor child and each adoptive parent gain the legal relationship of parent and child and have all the rights and duties of that relationship under law.
(4) “assisted reproductive technologies” include a wide range of medical technologies designed to treat infertility or otherwise assist with conception, such as drug or hormone therapy, artificial insemination by husband (AIH), artificial insemination by donor (AID), in vitro fertilization (IVF), or surrogacy.
(5) “child custody proceedings” includes any action in which a third party is seeking to take custody of a child from its parent where the parent cannot have the child returned upon demand, up to and including the termination of the parent’s custody or visitation rights in either family court child custody or probate court guardianship or adoption cases.
(6) “child welfare proceeding” includes any action in which the state is removing a child from his or her parent pursuant to the parens patriae power of the state where the parent cannot have the child returned upon demand, up to and including the termination of the parent’s parental rights occurring in a juvenile court.
(7) “disability” means a physical or mental impairment that substantially limits one or more of the major life activities of an individual, a record of such impairment, or being regarded as having such an impairment. This definition must be broadly interpreted, consistent with the ADA Amendments Act of 2008.
(8) “preventive services” include services designed to address the specific needs of a parent, including any needs that may be related to the parent’s disability, in order to prevent the removal of the child from the parent.
(9) “reunification services” include services designed to address the specific needs of a parent whose child has been removed from the home as a result of abuse or neglect, including any needs that may be related to the parent’s disability, and to make it possible for the child to return safely to the parent.
(10) “supportive parenting services” include services that help parents with a disability compensate for those aspects of the disability that affect their ability to care for their children and that will enable them to discharge their parental responsibilities. The term includes specialized or adapted training, evaluations, and assistance with effective use of adaptive equipment, as well as accommodations that allow a parent with a disability to benefit from other services, such as braille text or sign language interpreters.
(A) other similar services and actions.
The term “state” means each of the several states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands of the United States, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands. [RELEVANT FOR FEDERAL, NOT FOR STATE]
§_____. Discrimination in Access to Assisted Reproductive Technologies, Child-Rearing, and Adoption
(a) General Rule
No covered entity shall deny a person access to assisted reproductive technologies, adoption services, or the right to custody and control of their child solely on the basis of the person’s disability or the disability of the child in the latter case, and the states shall render appropriate assistance to parents with disabilities in the performance of their child-rearing responsibilities.
As used in subsection (a) of this section, the phrase “solely on the basis of the person’s disability” includes—
(1) promulgating, implementing, or enforcing state child welfare, family, or probate guardianship statutes that create special grounds or policies for the removal and detention of children from a parent owing to the parent’s disability, or the termination of the parental rights of, or the denial of custody or visitation to, a parent with a disability, solely on the basis of the parent’s disability;
(2) refusal to accommodate parents with disabilities in the child welfare system, family law, or probate courts, as required by 42 U.S.C. §12131, et seq.; or
(3) engaging in policies that have the effect of denying people with disabilities access to assisted reproductive technologies or adoption solely on the basis of their disability;
(4) participating in a contractual or other arrangement or relationship that has the effect of subjecting a parent with a disability or a child of such a parent to the discrimination prohibited by this subchapter;
(5) using standards, criteria, or methods of administration—
(A) that have the effect of discrimination on the basis of disability; or
(B) that perpetuate the discrimination of others who are subject to common administrative control.
(c) Access to Assisted Reproductive Technologies
(1) Providers of assisted reproductive technologies (ART) shall not deny prospective parents with disabilities access to their services solely on the basis of a disability, or on speculation that the disability will render them unfit, without consideration of whether adaptive parenting equipment and/or supportive services could enable them to adequately parent, and providers should secure consultation where they lack expertise on adaptive parenting equipment and/or supportive services;
(2) a provider who chooses to deny ART to a prospective parent with a disability based in whole or in part on the belief that the disability renders the person unfit to parent must provide the prospective parent with a written statement to that effect.
(d) Medical/Psychological Assessment and Evaluation
(1) Psychiatrists and psychologists performing assessments or evaluations in the context of child welfare, family, or probate guardianship cases shall ensure that the measures they administer are intended for use with the disability population of which the parent is a member; and
(2) shall include as part of any evaluation or assessment of parental capacity or fitness observation of the parent and child, so long as this will not affect the physical or psychological safety of the child;
(3) shall include as part of any evaluation or assessment of parental capacity or fitness an inquiry into how adaptive parenting equipment and/or supportive services for parents with disabilities might affect the capacity or fitness of the parent; and
(4) shall be familiar with adaptive parenting equipment, supportive services, and/or the assessment and evaluation of people with disabilities, or secure consultation or assistance if they lack such familiarity.
(e) Court Proceedings Generally
(1) In family law, child welfare, or probate guardianship proceedings in which a parent with a disability may lose custody or visitation of a child, a parent with an intellectual or psychiatric disability that renders him or her unable to meaningfully participate in court proceedings shall be provided with appointed counsel from the time of the initial court hearing;
(2) Evidence regarding the role that adaptive parenting equipment and/or supportive parenting services can play in improving the parental fitness and/or capacity of parents with disabilities is relevant and admissible;
(3) Where parental disability is alleged to have a detrimental impact on the child, the party raising the allegation bears the burden of proving a causal relationship and the detriment by clear and convincing evidence;
(4) Should a court decide that disability is a relevant factor in a custody or visitation determination in child welfare, family, or probate guardianship proceedings, the court shall provide a written decision as to that issue.
(f) Parents with Disabilities in Child Welfare Cases Specifically
To ensure compliance with the ADA and protect the 14th Amendment rights of parents with disabilities and their families, a covered entity—
(1) shall make inquiries into and document the disability status of the parent when a child is detained, to ensure that the parent is provided with appropriate accommodations during the child welfare process;
(2) shall not order foster care placement in the absence of a determination, supported by clear and convincing evidence that includes testimony of qualified expert witnesses, that the continued custody of the child by the parent or custodian with a disability is likely to result in serious emotional or physical damage to the child;
(3) shall not order termination of parental rights in the absence of a determination, supported by evidence beyond a reasonable doubt that includes testimony of qualified expert witnesses, that the continued custody of the child by the parent or custodian with a disability is likely to result in serious emotional or physical damage to the child;
(4) shall provide reasonable accommodations to parents with disabilities with regard to placement and visitation decisions; preventive, maintenance, and reunification services; and evaluation or assessment of parenting capacity, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the entity;
(5) shall include a comprehensive array of preventive, maintenance, and reunification services that may be necessary to address a parent’s disability, such as supportive housing, assertive community treatment, crisis services, peer supports, household management training, homemaker services, substance abuse services, occupational therapy and parenting skills training, adaptive parenting equipment, and adaptive parenting technique training that is tailored to address the parent’s specific needs, and other supportive parenting services;
(6) shall not deny parents with disabilities reunification services solely on the basis of their disability or speculation regarding the impact of their disability on their capacity or fitness to parent, or require them to submit to additional testing to qualify for reunification services provided to nondisabled parents without additional testing;
(7) a covered entity must provide evidence of active efforts to prevent the removal of a child or termination of parental rights of a parent with a disability where the parental disability is alleged to have a detrimental effect on the well-being of the child; and
(8) where there has been a finding of a failure by the covered entity to accommodate a parent with a disability during the pendency of proceedings, the Americans with Disabilities Act is a defense to termination of parental rights.
(g) Prospective Adoptive Parents with Disabilities
(1) Providers of adoption services shall not deny prospective parents with disabilities access to their services solely on the basis of disability or on speculation that the disability will render them unfit, without consideration of whether adaptive parenting equipment and/or supportive services could enable them to adequately parent, and providers should secure consultation where they lack expertise on adaptive parenting equipment and/or supportive services;
(2) where it is alleged that the prospective adoptive parent’s disability will have a detrimental impact on the child, the party raising the allegation bears the burden of proving that causal relationship and the detriment by clear and convincing evidence;
(3) an adoption services provider who chooses to deny a prospective parent with a disability the opportunity to adopt based in whole or in part on their belief that the disability renders the person unfit to parent must provide the prospective parent with a written statement to that effect.
(h) Access to Child-Centered Facilities and Programs
(1) Parents with disabilities must be afforded meaningful access, and accommodations to facilitate that access, to daycare and school facilities, including preschool.