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Baby Taken Away Because Mom has a Disability

February 10, 2015
Source: The Daily Beast

A mother with “mild intellectual disability” had her two-day-old baby taken away and placed in foster care. Now the federal government says the move was illegal and discriminatory.

In a move that could have far-reaching effects for the estimated 4.1 million parents in the United States who have disabilities, the Department of Justice and the Department of Health and Human Services jointly issued a strongly worded rebuke to the Massachusetts Department of Children and Families, accusing them of violating the rights of a parent with mild intellectual disability.

The federal departments found that the Massachusetts DCF systematically and illegally discriminated against a mother known pseudonymously as Sara Gordon in court papers, whose baby was removed from her care by DCF at two days old. DCF has begun proceedings to terminate Gordon’s parental rights.

“The department investigation has revealed that DCF has committed extensive, ongoing violations of Title II and Section 504 [of the Americans With Disabilities Act] by discriminating against Sara Gordon on the basis of her disability, and denying her opportunities to benefit from supports and services numerous times over the past two years, including her existing family supports,” the jointly written letter, dated Jan. 29, states. “The departments find that DCF acted based on the disability of Ms. Gordon as well as on the DCF discriminatory assumptions and stereotypes about her disability, without consideration of implementing appropriate family-based support services.”

What is historic about this letter is that the federal government is, for the first time, interpreting the 25-year-old Americans with Disabilities Act—which prohibits discrimination on the basis of disability and requires reasonable modifications and accommodations to be made to allow people with disabilities to live, work, and recreate in their communities—to apply to parenting. “We’ve been waiting for this day, for someone to acknowledge it at this level,” Leigh Ann Davis, program manager for justice initiatives at The Arc, told The Daily Beast. The Arc is a national support group for people with intellectual and developmental disabilities (commonly referred to as I/DD), which has long supported the rights of people to be parents and challenged the presumption that those with disabilities are incapable of parenting.

Robyn Powell is a lawyer with the National Council on Disability, an independent federal agency that advises lawmakers on disability policy. In 2012, the NCD issued an extensive report detailing just how extensive the discrimination against parents with disabilities can be. Among other staggering statistics, the report found that as many as 80 percent of children of parents with I/DD are removed from their parental homes. “The DOJ and HHS letter is really significant because it is the first time they have said what we have all thought, which is that the ADA applies to these matters,” said Powell. “They are saying, yes, parents have the right to have the appropriate supports and not have their child removed arbitrarily.”

“This is a game-changer. Now we have the DOJ supporting us in saying that these referrals to child-welfare services and failures to provide parenting supports are violations of the ADA,” explained Carrie Ann Lucas, a Northern Colorado-based attorney who specializes in juvenile and disability rights law.

In November 2012, Sara Gordon, then 19 years old, gave birth to her daughter, Dana. Sara lives with her parents, Kim and Sam Gordon. Kim had quit her job and planned to be a full-time support to Sara raising the child. The Gordons prepped their house for the new baby, buying all the supplies a newborn needs. Kim had raised three children, so this was hardly new to her.

Sara, however, was referred to DCF while still in the hospital because of her “mental retardation.” DCF sent over an emergency response team to observe Sara with Dana. DCF noted that at one point Sara missed a feeding because she had trouble reading an analog clock, and that at another point she failed to burp her child properly. As a result, Dana was removed and placed in foster care. Sara and Dana have not lived together since, despite Sara consistently stating her desire to be with Dana, visiting her at every permitted opportunity, and availing herself of every DCF-offered parenting class.

Sara was only permitted to visit Dana once a week at first, when the stated goal of DCF was reunification of Sara and Dana. When Dana was seven months old, DCF shifted plans: Dana should be adopted by a foster family. Then Sara could only visit every other week.

None of us can learn how to be a parent when we spend only one day every two weeks with a child. It is all the harder if your learning style, like that of Sara, requires frequent repetition and hands-on experience. DCF officials observed Sara during her infrequent visits and noted that a few times she wandered away from the changing table when Dana was on it, that sometimes she was unable to console Dana when she cried, and sometimes Dana bumped her head when in the care of Sara. (Dana was never injured when her head was bumped.)

Of course, the safety of the child should be of first importance. But DCF failed Sara and Dana in multiple ways with these observations. First, and most importantly, Sara never intended to parent Dana alone. Her plan was always to have the support of her mother while she would pursue parenting education.

Second, in contrast to their highly critical treatment of Sara, DCF did not seem to think it particularly important that Dana suffered actual bruises and burns in her foster home. There was an asymmetry with how DCF viewed the care of the child by Sara—which never resulted in actual injury—and the care of the child by the foster family.

Third, as the letter noted, DCF could have used these moments as they observed Sara making mistakes as teaching opportunities. When they saw her unable to console a baby, instead of ending the visit and noting her failure, why did not they teach her? Their job should be the preservation of families, and Sara was certainly a willing learner. Instead, they used these moments as the brittle-thin justification for taking Dana from her family.

Finally, the HHS and DOJ letter stresses that what Sara is owed, according to the ADA, is reasonable accommodation to live her life with her family. DCF should protect child safety, of course. But they should also provide supports, such as parent aides and parenting classes, to help Sara be a better parent.

Unbelievably, DCF received recommendations from multiple sources, including a psychologist hired by the lawyer for Sara Gordon, a nationally known expert on parenting with mental disabilities named Nicole Brisson, as well as their own internal review board, that Dana should be reunified with the Gordons. DCF ignored all of it. They continued in their pursuit of the termination of parental rights. The DOJ/HHS letter cited Brisson saying, “Clearly, [Ms. Gordon] is a loving, caring, and conscientious mother who is willing to do whatever it takes to have her daughter in her life. She is capable of learning new skills and has done so through her visits with [Dana], despite them being infrequent. With continued dedication by support providers and [the] willingness [of Ms. Gordon and Kim Gordon] to continue to work with them, it is likely that [Dana] can return home and will be well cared for by her mother and grandparents.”

One investigator for the DCF said that he used his “intuition” and noted that when “you meet with someone, you get a vibe whether they are going to be able to do it or not.” This gut-feeling approach is a perfect recipe for biased decision-making. The DCF office was closed Monday due to inclement weather and they could not be reached for comment by press time. However, a DCF spokesperson said in this AP story that, “DCF believes it acted in the best interest of the child.”

“Plain and simple, this is a case of discrimination against the person with a disability and a clear violation of the Americans With Disabilities Act,” said Peter Berns, CEO of The Arc, in a press release. “We are grateful for the departments of Justice and Health and Human Services for standing up for the rights of this mother and for parents with I/DD across the country.”

Mark Watkins, the attorney for Sara Gordon, told The Daily Beast, “In 24 years in child welfare practice, this is the worst case that I have ever had in terms of department behavior as well as the state court unwillingness to intervene.”

Watkins stressed the unusually strong support systems that Sara had in place for raising Dana. “This is a single issue case. There is nothing else. No domestic violence. She never had a drug problem or an alcohol problem.”

Watkins observed that Gordon always showed up to visits prepared with toys, and always had everything necessary in their home. “Many foster homes could not provide the level of care that this family could, given the opportunity.”

In contrast to their highly critical treatment of Sara, DCF did not seem to think it particularly important that Dana suffered actual bruises and burns in her foster home.

Unfortunately, the longer this case drags on, the harder it will be for Sara to be reunited with Dana. One of the factors Massachusetts courts use to determine child placement is the bond that children have made with their foster families. Kally Walsh, a lawyer for Kim and Sam Gordon, said in an interview with The Daily Beast, “The grandparents have faith in the process. We just want the process to work. But every minute counts.”

Walsh said she particularly admires Sara Gordon for bringing her case to the attention of DOJ and HHS. “This developmentally disabled 21-year-old brought the weight of the federal government down on the DCF. The one they said could not parent her child. She is the one. If the law changes it is because of Sara.”

This is a cross-disability issue, as Powell is quick to emphasize. Such interventions and removals by child-welfare services not only happen to parents with I/DD but also to blind parents and parents with mobility challenges. In divorce proceedings, for example, custody is nearly always awarded to a non-disabled parent. Powell said, “There is a lot of strong recent social science research that shows that parents with disabilities are very capable of raising their children. Being raised by a parent with a disability can result in a lot of positive traits such as resiliency and open-mindedness. Nonetheless, there is a belief that people with disabilities simply cannot parent a child.”

Davis muses that it is probably not the case that DCF did not care for the child, or was uninterested in the best interests of the child. It is more likely that they are simply mistaken about what the best interests are. “These people are passionate about what they do, most of them. And they want that child to have the right place to live and grow up,” she said. “So I guess the question is it a lack of true understanding. They think that in their core that that child would be better off. So we really have to address the underlying attitude and make that right.”

Lucas herself has multiple disabilities. Indeed, she became an attorney representing parents with disabilities once she discovered how difficult the law could be to parents with disabilities. Since then, she has had several unpleasant brushes with social services that have treated her unfairly due to her disability.

Her first referral to social services came soon after she took her newly adopted daughter, who also had disabilities, to a doctor. When she arrived at the Lucas home, the wheelchair her daughter used had had all sorts of restraints for her chest and feet. The doctor, however, said the restraints were unnecessary. “I told the school, “We do not need these things, do not use them.” She came home the next day strapped down to the gills and very unhappy. So I took them off her seat because she did not need them,” Lucas recalled. “They called social services because she kicked the back of the bus driver seat and it was unsafe for her. So I said, “She is kicking the seat and causing problems, you address the problem, you do not tie her down because she cannot move.”

A later run-in with child-welfare services regarded another daughter who also has disabilities, who was then 13 years old. The school bus driver dropped her daughter off directly in front of the house. The driver requested that Lucas meet her at the bus. Lucas said that her daughter was perfectly capable of wheeling herself to the door and letting herself into the house. Child-welfare services received a report that Lucas was not at home when the bus driver dropped her daughter off. This led to in an inquiry that included child-welfare officials staking out her home. But the questions quickly stopped being about whether or not anyone was home when her daughter was dropped off (someone always was).

“The questions all became all about my disability. How often do I get to the doctor? What do I need to perform my personal care? I never got asked those questions for home studies for my adoptions,” she said. Child-welfare services ruled the charges were unfounded, but the experience was a bitter one.

“Infuriating as my referrals were, they pale in comparison with what happens to my clients,” Lucas said. “Many of my clients do not get a fair shot.”

Massachusetts remains one of the 37 states in which disability may be cited as a strike against a parent in a custody case. Massachusetts State Rep. Paul Heroux introduced a bill that would have made it illegal to cite disability in such cases. It died in committee last term, but he has reintroduced it.

“It is the fitness of the parent that matters, not whether there is is a disability,” he told The Daily Beast. The Sara Gordon case shows, he said, “Why we need to push this legislation through. An agency or court that would base a decision on just a disability is just lazy.”

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