Walking with Them: Advocating for Parents with Mental Illnesses in the Child Welfare System

Abstract

Despite the large number of parents with mental illnesses who are caught up in the child welfare system, these parents and their families remain understudied and underserved. Parents with mental illnesses are doubly stigmatized as mentally ill and as abusive or neglectful. Few comprehensive or appropriate services are available to them through either the child welfare or the mental health systems. This Article evaluates the application of the Americans with Disabilities Act of 1990 (ADA) to the services provided by child welfare agencies to parents with mental illnesses. To date, courts have largely rejected ADA claims raised in the context of termination of parental rights proceedings, finding that applying the ADA to prevent termination of parental rights would be detrimental to the best interest of the children who are the subjects of the proceedings. Despite these setbacks, the ADA's unequivocal rejection of prejudicial stereotypes and inflexible policies could provide an important basis for rethinking child welfare policy toward families in which one or more parents has a mental illness. The ADA may make it possible for advocates for parents to bring to light unfounded assumptions about the capacity of parents with mental illnesses and advocate for services tailored to the needs of their families. Although courts are reluctant to apply the ADA to prevent children from being made available for adoption after they have been in the foster care system for a long time, the ADA has some potential to address the attitudes of child welfare decision makers and encourage child welfare agencies to support rather than undermine parenting by individuals with mental illnesses. At the same time, the potential of the ADA's forceful rejection of discrimination may fail to be realized. Some of the provisions of the ADA have been given quite narrow interpretations, while others remain little explored. This Article evaluates both the opportunities for and the challenges of applying the ADA to improve the workings of the child welfare system towards parents with mental illnesses.