The right to parent has long been regarded as one of our most treasured fundamental rights. Despite the disability rights movement’s many achievements, especially the passage of the Americans with Disabilities Act (“ADA”) in 1990, the right to parenthood remains inaccessible to many people with disabilities. Scholars and advocates have posited that the ADA has not adequately protected the rights of parents with disabilities involved with the child welfare system, particularly at the termination of parental rights phase. This Article develops this critique as applied to an original empirical study of 2,064 appellate termination of parental rights decisions adjudicated between 2006 and 2016 that involved mothers with disabilities. This is the first study to conduct quantitative analyses to identify factors that predict whether the ADA is raised or applied in these cases. In particular, we aimed to understand if a mother’s disability type predicts whether courts raise or apply the ADA.
This study found that the ADA was only raised in six percent of the decisions and only applied in two percent of the opinions. After controlling for parent, family, court, case, and policy characteristics, courts had a decreased likelihood of raising the ADA in cases involving mothers with psychiatric disabilities. Likewise, after controlling for parent, family, court, case, and policy characteristics, courts had lower odds of applying the ADA in cases involving mothers with multiple disabilities. Other factors were also associated with courts raising or applying the ADA, including criminal history, substance use history, prior child welfare system involvement, the presence of a disabled child, when the case was decided, geographical location, negative expert testimony, provision of family preservation or reunification services, and state dependency statutes that included parental disability as grounds for termination of parental rights. The Article concludes by discussing the policy and practice implications of the study’s findings and identifying directions for future research.
Robyn M. Powell, Ph.D., J.D., Visiting Assistant Professor at Stetson University College of Law and Research Associate at the Lurie Institute for Disability Policy, Heller School for Social Policy and Management, Brandeis University.
Susan L. Parish, Ph.D., M.S.W., Dean of the College of Health Professionals at Virginia Commonwealth University.
Monika Mitra, Ph.D., Director of the Lurie Institute for Disability Policy, Heller School for Social Policy and Management, Brandeis University.
Michael Waterstone, J.D., Fritz B. Burns Dean of the Loyola Law School. Stephen Fournier, Ph.D., Senior Lecturer at the Heller School for Social Policy and Management, Brandeis University.
Many thanks to Eliana Rosenthal, Lauren Smith, and Timothy Whooley for their invaluable assistance with coding the data for this study. This Article is part of Dr. Powell’s doctoral dissertation, and support for this study was provided by a dissertation grant from the Heller Annual Fund at Brandeis University. Support for this project was also provided by the Brandeis University Office of the Provost as well as a grant (#90DP6E0001-01-00) from the National Institute for Disability, Independent Living, and Rehabilitation Research (NIDILRR), part of the U.S. Department of Health and Human Services (HHS). The opinions and conclusions are solely ours and should not be construed as representing the sponsors.
