ROCKING THE CRADLE: THE NEXT

STEPS

Robyn Powell, Esq.

TASP New England Summit

June 5, 2014

NATIONAL COUNCIL ON DISABILITYNCD is a small, independent federal agency charged with advising the President, Congress, and other federal agencies regarding policies, programs, practices, and procedures that affect people with disabilities. NCD is comprised of a team of fifteen Presidential appointees, an Executive Director appointed by the Chairman, and twelve, full-time professional staff.

AVAILABLE AT WWW.NCD.GOV

ROCKING THE CRADLE: ENSURING THE RIGHTS OF PARENTS WITH DISABILITIES AND THEIR CHILDREN Groundbreaking

compendium National and

international attention

445 pages Over 1,000 citations Dozens of

interviews with experts and parents with disabilities

KEY FINDINGS Estimates of

6.1m children in US who have parents w/d

Parents w/d only community of Americans who must struggle to retain custody of their children

Removal rates: parents w/psych disabilities as high as 70-80%; parents with intellectual disabilities as high as 80%; extremely high removal and loss of custody rates for parents w/sensory or physical d.

KEY FINDINGS Parents w/d more

likely to lose custody after divorce

People w/d have more difficulty in accessing reproductive health care such as assisted reproductive tech.

Prospective parents w/d face significant barriers to adopting children.

HOPE REMAINS Several

programs show promise of long-term sustainable impact and potential for replication.

With more funding, model programs could easily grow and develop nationwide to better serve this often overlooked population.

SO, WHAT’S HAPPENED SINCE RELEASING ROCKING THE CRADLE?

“Parents with disabilities, and their families, need to be supported and protected in their fundamental right to have a family.”

STATE LEGISLATION

Oregon Tennessee Washington South Carolina Massachusetts

OREGON HOUSE BILL 2433An Act relating to parties with disabilities in domestic relations proceedings; creating new provisions; and amending ORS 107.105 and 107.137. If a party has a disability as defined by the Americans

with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), the court may not consider that party’s disability in determining custody unless the court finds that behaviors or limitations of the party that are related to the party’s disability are endangering or will likely endanger the health, safety or welfare of the child.

In the case of a noncustodial parent who has a disability as defined by the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), the court may consider the noncustodial parent’s disability in determining parenting time only if the court finds that behaviors or limitations related to the noncustodial parent’s disability are endangering or will likely endanger the health, safety or welfare of the child.

OREGON HOUSE BILL 2433An Act relating to parties with disabilities in domestic relations proceedings; creating new provisions; and amending ORS 107.105 and 107.137.

Lead Sponsor: Representative Sara Gelser

Signed by Governor on May 9, 2013

Effective January 1, 2014

TENNESSEE SENATE BILL 749/HOUSE BILL 693An act to amend Tennessee Code Annotated, Title 33; Title 36 and Title 37, relative to custody determinations involving disabled parents. In any suit for divorce, or for legal separation, or in any other

proceeding requiring the court to make a custody determination regarding a minor child, or in any proceeding where the issue before the court is the modification of a prior decree pertaining to custody or the modification of a permanent parenting plan, and where at least one (1) parent suffers from a disability, the party asserting or claiming that a parent's disability renders the parent unfit or otherwise incapable of satisfying the physical, emotional, educational or psychological needs of the minor child must establish by clear and convincing evidence that the disability of that parent poses a substantial risk of harm to the health or safety of the minor child at issue.

Should the court find by clear and convincing evidence that the disabled parent's disability poses a substantial risk of harm to the health or safety of the minor child, the court shall make specific findings of fact and conclusions of law in support of such finding.

TENNESSEE SENATE BILL 749/HOUSE BILL 693An act to amend Tennessee Code Annotated, Title 33; Title 36 and Title 37, relative to custody determinations involving disabled parents. For purposes of this section, the term "disability" means,

with respect to an individual, any mental or physical impairment which substantially limits one (1) or more major life activities of the individual, including, but not limited to, seeing, hearing, walking, speaking, learning, working, self-care or manual tasks; or a record of such an impairment; or being regarded or perceived by others as having such an impairment. The term "disability" shall not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism or other sexual behavior disorders, any substance use or alcohol use disorder, any compulsive gambling disorder; kleptomania or pyromania. Sexual preference or sexual orientation shall not be deemed an impairment or disability.

TENNESSEE SENATE BILL 749/HOUSE BILL 693An act to amend Tennessee Code Annotated, Title 33; Title 36 and Title 37, relative to custody determinations involving disabled parents. The determination as to whether or not an impairment substantially

limits one (1) or more major life activities shall be made without consideration of the effect of corrective or mitigating measures used to reduce the effect of the impairment.

All child protective service investigators, family service workers and case managers employed with the department of children's services; all judges and referees, whether part-time or full-time, with family law, domestic or juvenile jurisdiction; and all Rule 31 Listed Family Mediators shall receive annual training which addresses the issues and concerns of disabled parents. Further, at least one half (1/2) of this annual training shall be conducted by disabled parents.

SECTION 2. Tennessee Code Annotated, Section 36-6-106(a)(5), is amended by deleting the subdivision in its entirety and by substituting instead the following: The mental and physical health of the parents or caregivers; provided, that a parent's disability shall be considered pursuant to § 36-6-115

TENNESSEE SENATE BILL 749/HOUSE BILL 693An act to amend Tennessee Code Annotated, Title 33; Title 36 and Title 37, relative to custody determinations involving disabled parents.

Lead Sponsors: Senator Becky Duncan Massey and Representative Andrew Farmer

Signed by Governor on May 14, 2013

Effective Immediately!

WASHINGTON HOUSE BILL 2616An act relating to parents with intellectual or developmentaldisabilities involved in dependency proceedings; reenacting andamending RCW 13.34.136; and creating new sections. The legislature intends to assure that for parents with intellectual or

developmental disabilities, the department of social and health services takes into consideration the parent's disability when offering services to correct parental deficiencies. To do so, the legislature finds that the department must contact the developmental disabilities administration. The legislature further intends to allow the court to apply an active efforts standard to the department at dependency review hearings involving parents with intellectual or developmental disabilities.

If a parent has a developmental disability according to the definition provided in RCW 71A.10.020, and that individual is eligible for services provided by the developmental disabilities administration, the department shall make reasonable efforts to consult with the developmental disabilities administration to create an appropriate plan for services. For individuals who meet the definition of developmental disability provided in RCW 71A.10.020 and who are eligible for services through the developmental disabilities administration, the plan for services must be tailored to correct the parental deficiency taking into consideration the parent's disability and the department shall also determine an appropriate method to offer those services based on the parent's disability.

WASHINGTON HOUSE BILL 2616An act relating to parents with intellectual or developmentaldisabilities involved in dependency proceedings; reenacting andamending RCW 13.34.136; and creating new sections. Lead Sponsor:

Representative Roger Freeman

Signed by Governor on March 31, 2014

Effective June 12, 2014

SOUTH CAROLINA SENATE BILL 687South Carolina Blind Person's Right to Parent Act

In making decisions on guardianship, custody, or visitation where a party to the action is blind, the court may not deny the party guardianship, custody, or visitation of a child solely because the party is blind. The blindness of a party shall only be used to determine whether or not granting guardianship, custody, or visitation to the party would be in the best interest of the child.

When the Department of Social Services, a guardian, or a child placement agency considers an adoption petition, the department, guardian, or child placement agency may not deny the petition solely because the petitioner is blind.

In making a determination of adoption where the petitioner is blind, the court may not deny the petition solely because the petitioner is blind. The blindness of the petitioner shall only be used to determine whether or not granting the adoption would be in the best interest of the child.

Within one year of the adoption of this act, the Department of Social Services shall promulgate regulations prohibiting a local department from removing a child from a home and placing the child in foster care solely because the child's parent or guardian is blind.

SOUTH CAROLINA SENATE BILL 687South Carolina Blind Person's Right to Parent Act

Lead Sponsor: Senator Larry Martin

Ratified on May 29, 2014

Awaiting Governor’s signature

MASSACHUSETTS HOUSE BILL 1379 An Act prohibiting discrimination against adults with disabilities in family and juvenile court proceedings

“Adaptive parenting equipment”, includes any piece of equipment or any item that is used to increase, maintain, or improve the parenting capabilities of a parent with a disability.

“Disability”, a physical or mental impairment that substantially limits one or more major life activities of an individual, a record of such impairment, or being regarded as having such an impairment. This definition shall be broadly interpreted, consistent with the Americans with Disabilities Act Amendments Act of 2008.

“Supportive parenting services”, services that help parents with a disability compensate for those aspects of the disability that affect their ability to care for their children and that will enable them to discharge their parental responsibilities. The term includes, but is not limited to, specialized or adapted training, evaluations, and assistance with effective use of adaptive equipment, as well as accommodations that allow a parent with a disability to benefit from other services, such as braille text or sign language interpreters.

MASSACHUSETTS HOUSE BILL 1379 An Act prohibiting discrimination against adults with disabilities in family and juvenile court proceedings

Amends Chapter 208 and (Divorce – Custody/Visitation) Chapter 209C of the Mass. Gen Laws (Children born out of wedlock)

Nothing in this chapter shall allow a parent’s disability to be considered a factor in a determination of custody of or visitation with a minor child, absent a specific showing by a preponderance of the evidence made by the party raising the allegation, that there is a nexus between the parent’s disability and alleged harm to the child, and that this alleged harm cannot be prevented or alleviated by accommodations for the disability, including adaptive parenting equipment or supportive parenting services.

If the court considers a parent’s disability as a factor in an award of custody of and or visitation with a child, the court shall make specific written findings as to the nexus between the parent’s disability and harm to the child, what effect, if any, said harm has on the best interests of the child, and whether or not adaptive parenting equipment or supportive parenting services can alleviate said harm.

MASSACHUSETTS HOUSE BILL 1379 An Act prohibiting discrimination against adults with disabilities in family and juvenile court proceedings

Amends Chapter 190B (Probate – guardianship/conservatorship)

Same definitions

Nothing in this chapter shall allow a parent’s disability to be considered a factor in determining whether to appointment a temporary or permanent guardian for a minor child, absent a specific showing by a clear and convincing evidence made by the party raising the allegation, that there is a nexus between the parent’s disability and alleged harm to the child, and that this alleged harm cannot be prevented or alleviated by accommodations for the disability, including adaptive parenting equipment or supportive parenting services.

If the court considers a parent’s disability as a factor in a determination whether to appoint a temporary or permanent guardian for a minor child, the court shall make specific written findings as to the nexus between the parent’s disability and harm to the child, the impact this has on current parental fitness, and whether or not adaptive parenting equipment or supportive parenting services can alleviate said harm or render the parent fit.

MASSACHUSETTS HOUSE BILL 1379 An Act prohibiting discrimination against adults with disabilities in family and juvenile court proceedings

Amends Chapter 119 of the Mass. Gen Laws (Child protection) with same definitions

Section 24A. Nothing in this chapter shall allow a parent’s disability, as defined in section 21 of this chapter, to be considered a factor in a determination whether a child is in need of care and protection or for the removal of custody of a child from a parent, guardian, or other custodian, absent a specific showing by clear and convincing evidence made by the Department, that there is a nexus between the parent’s disability and alleged harm to the child, and that this alleged harm cannot be prevented or alleviated by accommodations for the disability, including adaptive parenting equipment or supportive parenting services.

If the court considers a parent’s disability as a factor in determining that a child is in need of care and protection or for the removal of custody of a child from a parent, guardian, or other custodian, the court shall make specific written findings as to the nexus between the parent’s disability and harm to the child, the impact this has on current parental fitness, and whether or not adaptive parenting equipment or supportive parenting services can alleviate said harm or render the parent fit.

MASSACHUSETTS HOUSE BILL 1379 An Act prohibiting discrimination against adults with disabilities in family and juvenile court proceedings

Amends Chapter 210, Section 3 of Mass. Gen Laws (TPR statute)

(c) In considering the fitness of the child’s parent or other person named in section 2, the court shall consider, without limitation, the following factors

Current Language: (xii) a condition which is reasonably likely to continue for a prolonged, indeterminate period, such as alcohol or drug addiction, mental deficiency or mental illness, and the condition makes the parent or other person named in section 2 unlikely to provide minimally acceptable care of the child

Proposed Language: a failure of a parent to discharge parental responsibilities, that is reasonably likely to continue for a prolonged, indeterminate period, and that results in harm to the child, and cannot be alleviated by adequate accommodations, including adaptive parenting equipment or supportive parenting services.

MASSACHUSETTS HOUSE BILL 1379 An Act prohibiting discrimination against adults with disabilities in family and juvenile court proceedings

Amends Chapter 210, Section 3 of Mass. Gen Laws (Dependency statute)

Same definitions

Nothing in this chapter shall allow a parent’s disability to be considered a factor in determining whether to terminate parental rights, absent a specific showing by clear and convincing evidence made by the Department, that there is a nexus between the parent’s disability and alleged harm to the child, and that this alleged harm cannot be prevented or alleviated by accommodations for the disability, including adaptive parenting equipment or supportive parenting services.

If the court considers a parent’s disability as a factor in determining whether to terminate parental rights, the court shall make specific written findings as to the nexus between the parent’s disability and harm to the child, the impact this has on current parental fitness, and whether or not adaptive parenting equipment or supportive parenting services can alleviate said harm or render the parent fit.

MASSACHUSETTS HOUSE BILL 1379 An Act prohibiting discrimination against adults with disabilities in family and juvenile court proceedings

Lead Sponsor: Representative Paul Heroux

Hearing held before Joint Committee on the Judiciary on April 4, 2014

Committee must vote by June 30, 2014

MEDIA 2012 – Associated Press, TIME

Magazine, ABC News, BBC, NPR, 20 local radio interviews, Psychiatry Online, and MANY MORE!!!

2013 – APA, NASW, CW360°

2014 – ABA, Rise Magazine, ProPublica

PRESENTATIONS

Fordham University, Graduate School of Social Service

Child Welfare League of America National Conference

New Jersey State Bar Association University of Minnesota’s Center for

Advanced Studies in Child Welfare Spring Conference

Magee-Women’s Hospital Jacobus tenBroek Disability Law Symposium New York State Defender’s Association

Save the Date!

Congressional Briefing on Adoption Policy and Practice 

Wednesday, June 11

10:00 – 11:30 AM

Room TBASPEAKERS

Congressman Jim Langevin (D-RI), invited David Brodzinsky, Ph.D, Research Director, Donaldson Adoption

Institute (NYC); Professor Emeritus, Clinical and Developmental Psychology, Rutgers University

Colleen Gioffreda, National Adoption Coordinator, Little People of America

Traci LaLiberte, Ph.D, Executive Director, Center for Advanced Studies in Child Welfare, School of Social Work, University of Minnesota

Robyn Powell, Attorney Advisor, National Council on Disability; lead author, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children

Linda Spears, Vice President of Policy and Public Affairs, Child Welfare League of America

NEXT STEPS FOR ADVOCATES Contact local, state, and national elected

officials and urge them to pass legislation that ensures the rights of parents with disabilities and their children. Such legislation should be in accordance with the language set forth in Rocking the Cradle

Urge the Administration, States, and Child Welfare agencies to implement the recommendations in Rocking the Cradle

Continue sharing Rocking the Cradle!

CONTACT INFORMATION

Robyn M. PowellAttorney AdvisorNational Council on Disability1331 F Street NW, Suite 850Washington, DC 20004rpowell@ncd.gov 202-236-9651