Research & Evaluation
Key Principles
Definitions
Disability: Consider a definition such as the one included in the Americans with Disabilities Act. The ADA defines a person with a disability as: A person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others to have such an impairment.
Accommodation: Accommodations may be defined broadly to include strategies and techniques designed to support the parent or guardian with a disability in their parenting activities including, adaptive equipment and parental supports.
Adaptive equipment: Adaptive equipment refers to any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, that is used to increase, maintain, or improve parenting capabilities of individuals with disabilities.
Parental supports: Parental support includes supportive services and personal care services designed to assist parents or guardians with a disability to compensate for those aspects of their disability which affect their ability to care for their child and which will enable them to discharge their parental responsibilities. Parents may need support in Activities of Daily Living (ADLs) such as dressing, bathing, walking, transferring, feeding, toileting; Instrumental Activities of Daily Living (IADLs) such as meal planning and preparation, managing finances, shopping for food, clothing, and other essential items, performing essential household chores, communicating by phone and other media, and getting around and participating in the community; and parenting activities such as parental care and supervision, subsistence, education, medical or other care or supervision necessary for child well being.
In order to successfully move forward to ensure fair treatment of parents or guardians with disabilities in child custody and child protection cases, while promoting the safety, stability, and well-being of their children, six key principles must be present in state statutes. For each key principle, model statute language and accompanying definitions are provided for use in changing state statues. Together these will act to guide groups as they advocate changing their state laws.
1. State statutes are free from discriminatory language. Places to look for discriminatory language include termination of parental rights statutes, adoption statutes, and child custody statutes (separation and divorce). While definition sections may include language that needs to be changed, discriminatory language is often found throughout the statute.
Model language
This is an example of how Idaho removed discriminatory language from their statute —
‘Whose parents, guardian or other custodian are failing to discharge their responsibilities to and for the child and, as a result of such failure, the child lacks the parental care necessary for his health, safety or well-being.’
2. State statutes affirm that no part of the statute should be used or interpreted as discriminating against people with disabilities. This should be put in the general purpose section(s) dealing with parental custody and parental rights. It is important to note that in statutes where state agencies are providing services, they MUST provide modifications in accordance with Title II of the Americans with Disabilities Act.
Model language*
‘Nothing in this chapter should be construed to allow discrimination against a parent or guardian on the basis of disability. State services must comply with the Americans with Disabilities Act.’
3. State statutes acknowledge that successful parenting can take place with accommodations including adaptive equipment and parental supports. This affirmative step on the part of parents or guardians with disabilities is likely a new concept to many states and legislators. This change in paradigm requires that statutes consider a broader vision of parenting thus eliminating deeper systemic forms of discrimination.
Model language*
‘If the parent or guardian has a disability, the parent or guardian shall have the right to provide evidence to the court regarding the manner in which the use of accommodations such as adaptive equipment or parental supports will enable the parent to carry out the responsibilities of parenting the child. The agency shall advise parents or guardians of such right as soon as disability is identified. Courts shall also advise parents and guardians of this right.’
4. State statutes require that assessment of parenting by people with disabilities is focused on behaviors rather than conditions, and appropriate assessments are conducted by experts knowledgeable in parenting skills and disability accommodations. Requiring that assessments be conducted by people that are knowledgeable in parenting skills and disability accommodations is essential. Simply being an expert in standardized assessments is not sufficient in termination and custody cases involving parents or guardians with disabilities. Assessment instruments and subsequent reports that do not evaluate parenting abilities in the context of service modifications and/or accommodations do not accurately assess the parent’s or guardian’s abilities.
Model language*
‘Evaluation of parental fitness shall take into account the use of adaptive equipment and parental supports for parents or guardians with disabilities and shall be conducted by, or with the assistance of, a person who has expertise concerning such equipment and support services.’
5. State statutes require specialized protocols for investigations involving a family member with a disability. Protocols used during the child maltreatment investigation process should be tailored to individuals with varying types of disabilities. Risk assessments and interviews should be based upon the parent’s or guardian’s behavior and not focused on their condition.
Model language*
‘Investigations of child maltreatment cases involving people with disabilities shall use a protocol that has been modified based on the individual with disabilities’ abilities.’
6. State statutes that require the use of multidisciplinary interagency teams shall include experts in disabilities. Currently, many states require interagency and/or multidisciplinary teams to be involved in various parts of the child maltreatment case such as investigation, assessment, and service planning. For cases involving parents or guardians with a disability, teams should include people with expertise in parental supports and adaptive equipment.
Model language*
The following language should be added to the existing list of team members identified in state statute —
‘Persons knowledgeable about parental supports and adaptive equipment for parents or guardians with disabilities’.