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by Robyn Powell
Rewire News

Excerpts:

Last week, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced an agreement with the state of Oregon to develop a system to ensure the state’s child welfare agency does not discriminate against parents with disabilities, a move that could benefit one in ten parents in the United States.

The agreement stems from a case involving Amy Fabbrini and Eric Ziegler. Fabbrini and Zieglerendured a five-year battle with the state of Oregon to regain custody of their two sons, who were both taken into foster care after their respective births following concern that Fabbrini and Ziegler would be unable to care for them.

No abuse was alleged against Fabbrini and Ziegler, who say their below-average scores on state-sanctioned IQ tests are why Oregon held the children in foster care until their court-ordered releases in late 2017 and early 2018.

Fabbrini and Ziegler’s case is not unique. At least 40 percent to 80 percent of parents in the United States with intellectual disabilities will lose custody of their children, according to a 2012 report from the National Council on Disability, on which I was the primary author.

This discrimination is not only harmful to families—it is also unlawful. Indeed, both Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA) prohibit child welfare agencies and courts from discriminating against disabled parents.

These federal laws also require child welfare agencies and courts to provide reasonable modifications in policies, programs, and procedures to ensure disabled parents are offered an equal opportunity. For example, Deaf parents must be provided sign language interpreters, and parents with intellectual disabilities should receive individualized services based on the family’s needs.

Yet, nearly 50 years since the Rehabilitation Act was passed and 30 years since the ADA became law, discrimination continues to persist. As a result, families are being torn apart.

Such discrimination is a long-standing issue in U.S. history, rooted in eugenics practices like intelligence tests and other standards that, historically, have resulted in children being removed from families and forced sterilization of those with—or those perceived to have—disabilities.

Roughly two-thirds of state child welfare laws still allow for a parent’s disability to be considered for the purposes of terminating parental rights, according to the National Council on Disability. Tellingly, researchers from the University of Minnesota found that nationally, 19 percent of children in foster care had been removed from their homes at least in part because they had a disabled parent. That same study found parents with disabilities had 22 percent higher odds of having their parental rights terminated, compared to other parents. And, a recent study found that parents with psychiatric disabilities were eight times more likely than other parents to have involvement with the child welfare system.

The belief that disabled people are unfit parents dates back to the eugenics movement in the early 20th century, when people with disabilities and others who were deemed “unfit to procreate” were forcibly sterilized. This barbaric treatment even gained the blessing of the U.S. Supreme Court in the 1927 Buck v. Bell case, which held it was constitutional to sterilize people with disabilities forcibly. This alarming decision led to more than 30 states enacting laws that permitted involuntary sterilization, and an estimated 70,000 Americans, many of whom had disabilities, sterilized against their wishes.

But studies do not indicate that parents with disabilities are more likely than nondisabled parents to abuse or neglect their children. In fact, research has consistently found that most disabled parents and their families fare quite well when provided the chance. Studies have shown that a lower IQ has nothing to do with one’s fitness as a parent. IQ scores themselves are rooted in flawed methodology and have been used to justify racist and eugenics practices. Further, some scholars contend that there are ways in which children actually benefit from having a disabled parent, such as exhibiting increased empathy.

Thus, the overrepresentation of parents with disabilities within the child welfare system is most often based on prejudice rather than actual harm. But the federal government largely has been silent about the rights of parents with disabilities, which makes OCR’s recent action notable—and long overdue.