Making Good on an Historic Federal Precedent: Americans with Disabilities Act (ADA) Claims and the Termination of Parental Rights of Parents with Mental Disabilities

49 Pages Posted: 18 Nov 2015  

Charisa Kiyô Smith

University of Wisconsin Law School

Date Written: November 16, 2015

Abstract

The Americans with Disabilities Act (ADA) represents an underutilized advocacy tool for legal practitioners in the termination of parental rights (TPR) cases of parents with mental disabilities. Historic federal precedent by two administrative agencies in January, 2015 clarified that the ADA can be used to defend parents with mental disabilities in the child welfare system, after many years of confusion on the state and federal level. This paper provides a socio-legal justification for utilizing the ADA in this context, along with a sound theoretical framework of disability rights discourse theory, Family Systems Theory, and Vulnerability Theory. The paper presents concrete strategies and potential challenges for practitioners to utilize the ADA in both administrative and litigative child welfare arenas, drawing from lessons in the special education context. However, the paper ultimately argues that a wholesale conceptual shift and extensive professional training on this matter are required, to thoroughly protect vulnerable families and rescue overwhelmed public systems.

Keywords: parent, termination of parental rights, child, child welfare, disability, mental, psychology, abuse, neglect, maltreatment, social service, family, ADA, Americans with Disabilities Act, child protection

JEL Classification: K40

Suggested Citation

Smith, Charisa Kiyô, Making Good on an Historic Federal Precedent: Americans with Disabilities Act (ADA) Claims and the Termination of Parental Rights of Parents with Mental Disabilities (November 16, 2015). Quinnipiac Health Law Journal, Vol. 18, 2015; Univ. of Wisconsin Legal Studies Research Paper No. 1367. Available at SSRN: https://ssrn.com/abstract=2691639

Charisa Kiyô Smith (Contact Author)

University of Wisconsin Law School ( email )

716 Langdon Street
Madison, WI 53706-1481
United States

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