The Americans with Disabilities Act and Termination of Parental Rights Cases: An Examination of Appellate Decisions Involving Mothers with Disabilities

44 Pages Posted: 9 Apr 2020

See all articles by Robyn Powell

Robyn Powell

Stetson University College of Law; Brandeis University - The Heller School for Social Policy and Management

Susan L. Parish

Northeastern University, Bouvé College of Health Sciences

Monika Mitra

Brandeis University

Michael Evan Waterstone

Loyola Law School Los Angeles; Northwestern University - School of Law

Stephen Fournier

Brandeis University - The Heller School for Social Policy and Management

Date Written: April 8, 2020

Abstract

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 decided 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 6% of the decisions and only applied in 2% 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 psychiatric disabilities or 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.

Keywords: Disability Law, Family Law, Child Welfare, Empirical, Americans With Disabilities Act, Termination of Parental Rights

JEL Classification: K36, K40, K30, Z18

Suggested Citation

Powell, Robyn and L. Parish, Susan and Mitra, Monika and Waterstone, Michael Evan and Fournier, Stephen, The Americans with Disabilities Act and Termination of Parental Rights Cases: An Examination of Appellate Decisions Involving Mothers with Disabilities (April 8, 2020). Yale Law & Policy Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3571729

Robyn Powell (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States

Brandeis University - The Heller School for Social Policy and Management ( email )

MA
United States

Susan L. Parish

Northeastern University, Bouvé College of Health Sciences

United States

Monika Mitra

Brandeis University

Waltham, MA 02454
United States

Michael Evan Waterstone

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

Northwestern University - School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-1855 (Phone)

HOME PAGE: http://www.law.northwestern.edu/faculty/profiles/MichaelWaterstone/

Stephen Fournier

Brandeis University - The Heller School for Social Policy and Management

P.O. Box 549110/MS 035
415 South Street
Waltham, MA 02454
United States

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