The Court of Appeals in IN RE H.C.; K.C decided on July 5, 2018, redefined and expounded on what constitutes reasonable efforts toward the goal of reunification when dealing with a parent with intellectual disability and eligible for receiving services through DDS (“Department of Disability Services.”)
In this case the child was removed at birth from the mother’s care due to the mother’s cognitive and intellectual disabilities.
The trial court had held that mother’s intellectual disabilities and mental health needs rendered her incapable of properly caring for the child even with the wrap around services, parental training and other assistance provided by the government.
The mother on appeal contended that the Superior Court violated her rights under federal law – the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973 – to reasonable and effective accommodations of her intellectual disability rendering and enabling to parent the child.
The ADA and the Rehabilitation Act do protect and prevent parents with disabilities, including intellectual and psychiatric disabilities, from discriminatory curtailment of their parental rights.
The Act requires the government to implement reasonable accommodations in order to afford such parents the same
opportunities as other parents would have to achieve reunification with their child.
In this case the mother was diagnosed with:
- Psychiatric disorders (Major Depressive Disorder),
- Post-Traumatic Stress Disorder, and
- intellectual disability (IQ 47).
The mother already was receiving services from the Department of Disability Services (“DDS”) and resided in a supportive housing program with in home nurse and other providers.
The mother also received services included psychiatric medication management, mental health services from a psychologist and enrollment in a day program that provided job training and instruction on managing daily tasks and activities as well as collaborative parenting assistance.
The agency had also provided a visual calendar for the mother to assist and train her with the child’s daily needs.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
Moreover Section 504 applies the same requirement to entities that receive federal financial assistance. That is “entities subject to these requirements must
make ‘reasonable modifications’ in their policies, practices, and procedures to avoid discrimination and allow disabled persons to participate in and receive the benefits of their services and programs”.
The Court held that child welfare and reunification programs must be administered in accordance with the principles of individualized treatment and full and equal opportunity under the Disability Act. That is, persons with disabilities “must be treated on a case-by-case basis consistent with facts and objective evidence,” and “not . . . on the basis of generalizations or stereotypes.”
By definition, persons with disabilities must be provided opportunities to benefit from or participate in child welfare programs, services, and activities that are equal to those extended to individuals without disabilities. That is enhanced and customized services should be implemented to accommodate for disabilities present.
The Court of Appeals ruled that the lower courts must also modify their policies, practices and procedures to avoid discriminating against disabled parents in permanency proceedings as well as to afford more time to the disabled parent with the appropriate supportive services in place to achieve the goal for reunification.
Here however the Court of Appeals affirmed the lower court as the totality of the services provided to the mother was deemed legally sufficient under the Act and in order to reasonably accommodate the goal of reunification.
Refer to our Washington DC Family Lawyer page for more information on this topic.