Parents with disabilities have faced discrimination for years in the US, but new rules will help ensure that child welfare systems treat them more fairly

Parents with any kind of disability are much more likely to have some type of interaction with the child welfare system than other parents. This means they are more likely than other parents to be reported for child abuse and neglect and more likely to have abuse or neglect substantiated by child welfare workers. They are also more likely to have their children placed in foster care and more likely to permanently lose their parental rights.

More than one-third of mothers with intellectual and developmental disabilities have an interaction with the child welfare system within four years of their child’s birth, and about one-fifth of all children in foster care have a parent with some type of disability.

However, there is little evidence that parents with disabilities abuse or neglect their children at higher rates than anyone else. Instead, there’s evidence that many young adults raised by a parent with a disability have very positive childhood experiences.

New rules that went into effect in July 2024 provide the first federal protections specifically for parents with disabilities. These new rules ban discrimination against parents and caregivers with disabilities throughout the child welfare system.

Government is changing these rules

I’m a social work policy researcher who has studied policies affecting parents with disabilities since 2007.

In 2010, I found that three-quarters of states had laws which said that a parent’s disability could be used as the grounds for terminating their parental rights. Most of these state laws focused on parents with intellectual and developmental disabilities or mental health disabilities, though some listed physical disabilities and other types as well.

Many of these laws were vague and used outdated language such as “mental deficiency.”

Parental disability is the only grounds for termination of parental rights that focuses on a condition of the parent. The rest focus on behaviors. For example, parental poverty is not listed as grounds for termination of parental rights in any state, but neglect – a behavior – is.

State laws were only one of the issues parents with disabilities encountered related to child protection. For years, there had been confusion as to how the Americans with Disabilities Act, the federal law banning disability discrimination, applied to parents in the child welfare system. Until 2015, most state courts denied ADA claims by parents with disabilities who believed they were discriminated against.

In addition, most child welfare workers do not receive formal training on working with parents with disabilities. They are not trained in how to assess parenting skills or how to make accommodations to services that they typically provide, such as providing in-home parent training or conveying information in plain language. They might not know about the overwhelming evidence that parents with intellectual disabilities can learn parenting skills.

This has historically led many child welfare workers to make decisions based on stereotypes or speculation.

One of the main biases that parents with disabilities face is the “presumption of unfitness bias.” This is a widespread bias that parents are unable to parent solely because of their disability.

This bias can lead child welfare workers to not consider that parents with disabilities can rely on “parental supports” to assist them in parenting, ranging from adaptive cribs and baby monitors to in-home helpers. It also can result in parents with disabilities being held to a higher standard than others.

State laws specifically naming parental disability as a for termination of parental rights, the lack of federal protection, and widespread biases left parents with disabilities vulnerable in encounters with the child welfare system.

Gaining national attention

Two federal actions in the early 2010s brought national attention to parents with disabilities.

First, the National Council on Disability, the independent federal agency that advises the federal government on disability issues, released a report in 2012 called Rocking the Cradle. That report focused on the widespread discrimination faced by parents with disabilities; highlighted and called for changing the state child protection laws; and called for the application of ADA protections in child welfare cases involving parents with disabilities.

This report received a lot of media attention and led to more awareness of the plight of these parents.

Then, in 2015, Justice Department and the Department of Health and Human Services released guidance directing child welfare agencies to protect parents with disabilities from discrimination. This was the first federal action indicating that the ADA and Section 504 of the Rehabilitation Act applied to child protection services.

This guidance followed the departments’ investigation of the Massachusetts Department of Children and Families’ removal of a newborn baby from Sara Gordon, a new mother with a developmental disability, in 2012. The Department of Justice and the Department of Health and Human Services found that the state agency had made assumptions that Gordon was unable to take care of her child and unable to learn parenting skills. The state agency had also failed to take into account that Gordon had support systems in place. She lived with her parents, and her mother had quit her job to assist with parenting.

Making progress for parents with disabilities

The momentum for protecting parental rights has led to some positive changes.

A few states changed their own child protection laws to address some of these problems before the federal government took action by providing new protections for parents with disabilities. In addition, the Department of Justice and Department of Health and Human Services have reached agreements with state agencies in Oregon, Georgia and Massachusetts related to discrimination against parents with disabilities.

Despite this progress, parents with disabilities are still discriminated against by the child welfare system in many parts of the country.

At the same time, I have no doubt that the federal government’s revision of the rules of Section 504 of the Rehabilitation Act is a major step forward for parents with disabilities.

In particular, it is promising that Section  84.60 of the rule clarifies that disability discrimination is not allowed in any part of the child welfare process. Child welfare agencies throughout the United States now must ensure that they are not making decisions based on speculation, stereotypes or generalizations.

Thanks to changes in the federal rule, when a child welfare agency evaluates how a child is being parented, the tools it uses must be backed by research. The evaluations must be conducted by a qualified professional and tailored to the needs of the individual parent. Agencies must ensure that parents with disabilities can participate in any services they provide. These services include parent-child visitation, parenting skills programs, family reunification services and child placements in foster care settings or in the care of another relative.

Disability advocacy groups applauded this new rule when it went into effect in the summer of 2024.

I believe these new rules will protect parents with disabilities when interacting with child protection authorities. They will also make it easier for child welfare agencies and state courts to recognize disability discrimination when it appears in their caseloads or on their dockets.

Elizabeth Lightfoot receives funding from the National Institute on Disability, Independent Living, and Rehabilitation Research and the Arizona Developmental Disabilities Planning Council.