Legal Ableism: A Systematic Review of State Termination of Parental Rights Laws

Abstract

Although the fundamental right to raise a family is among our most cherished, it is not equally afforded to everyone. Indeed, the United States has an appalling and enduring history of policing parenthood among people with disabilities. In recent years, the rights of parents with disabilities and their children have garnered unprecedented attention from activists, scholars, legal professionals, and policymakers. Nevertheless, the number of disabled parents who have their parental rights terminated is substantial and growing. As such, the roots of these ongoing injustices must be investigated. To that end, because the family policing system, including termination of parental rights, is primarily governed by state statutes, such an interrogation must begin there.

In response, this Article presents findings from a systematic examination of the inclusion of parental disability in state termination of parental rights laws. Strikingly, using established methodological practices from the social sciences, it reveals that parents in forty-two states and the District of Columbia are at risk of having their parental rights terminated because they are disabled. Even worse, as this Article demonstrates, these numbers have remained essentially unchanged for over a decade. Thus, ableism remains entrenched in state termination of parental rights laws. Finally, drawing on the findings from this investigation, this Article considers normative legal and policy solutions for challenging ableist termination of parental rights statutes as well as areas warranting further inquiry. Reckoning with these statutes is essential to finally confront the irreparable harm inflicted on disabled parents and their children by the family policing system.

Keywords: disability, child welfare, family law, family policing system, disabled parents, termination of parental rights

JEL Classification: K10, K36, I30, I38