A growing body of scholarship demonstrates that parents with psychiatric disabilities and their families experience a range of inequalities that families with nondisabled parents do not suffer. Parents with psychiatric disabilities contend with pervasive discrimination within the child welfare and family law systems, often resulting in the removal of their children and loss of custody. Moreover, some children of parents with psychiatric disabilities experience worse outcomes than their peers, while others do not. Yet, despite extensive legal and social science scholarship focused on parents with psychiatric disabilities and their families, no studies have empirically examined the legal needs of parents with psychiatric disabilities as perceived by parents themselves.

This Article responds to the scholarly void and offers new and much-needed data on the real world-experiences of these parents. This study draws qualitative data from in-depth interviews with twelve former clients of a legal services program in Massachusetts that provides representation to parents with psychiatric disabilities. First, this study shows that the legal profession lacks understanding of mental health, which some parents believe negatively affects representation and case outcomes. Second, attorneys may need to provide parents with psychiatric disabilities assistance beyond litigation, including taking more time to explain the legal process, assisting with administrative tasks, and coordination with and referrals to other supports and services. Third, our data suggest that parents with psychiatric disabilities may have ongoing legal needs that require access to additional legal services beyond those related to the child welfare and family law systems. This Article concludes by identifying critical areas for further research and discussing the policy implications of the findings.

A sizable body of scholarship indicates parents with disabilities – including physical, intellectual, psychiatric, and sensory disabilities – experience pervasive inequities that threaten their fundamental right to parenthood. In particular, compared to nondisabled parents, parents with disabilities are overrepresented in the child welfare system, receive inadequate family preservation and reunification services, and have disproportionate rates of termination of parental rights. Despite extensive legal and social science scholarship, however, there are no empirical analyses of judicial opinions to identify factors that predict termination of parental rights in cases involving parents with disabilities.

This is the first empirical legal study to analyze appellate decisions to determine predictors of termination of parental rights in appeals cases that included mothers with disabilities. In particular, we sought to understand whether a mother’s disability type was associated with the termination of parental rights. To that end, this study analyzed 2,064 appellate opinions decided between 2006 and 2016. We found that ninety-three percent of the cases resulted in the termination of parental rights. After controlling for a variety of parent, family, court, case, and policy characteristics, however, maternal disability type did not predict termination of parental rights. Nevertheless, the odds of termination of parental rights were higher for cases in which parents had substance use histories, household incomes below 200% of the federal poverty level, prior child welfare system involvement, negative expert testimony, or received family preservation and reunification services tailored to parents with disabilities. Conversely, the likelihood of termination of parental rights was decreased in cases that included positive expert testimony or were decided in the Southeast or West. The Article concludes by discussing the policy and practice implications of the study’s findings and identifying critical areas for further research.

The right to parent has long been regarded as one of our most treasured fundamental rights. Despite the disability rights movement’s many achievements, especially the passage of the Americans with Disabilities Act (“ADA”) in 1990, the right to parenthood remains inaccessible to many people with disabilities. Scholars and advocates have posited that the ADA has not adequately protected the rights of parents with disabilities involved with the child welfare system, particularly at the termination of parental rights phase. This Article develops this critique as applied to an original empirical study of 2,064 appellate termination of parental rights decisions decided between 2006 and 2016 that involved mothers with disabilities. This is the first study to conduct quantitative analyses to identify factors that predict whether the ADA is raised or applied in these cases. In particular, we aimed to understand if a mother’s disability type predicts whether courts raise or apply the ADA.

This study found that the ADA was only raised in 6% of the decisions and only applied in 2% of the opinions. After controlling for parent, family, court, case, and policy characteristics, courts had a decreased likelihood of raising the ADA in cases involving mothers with psychiatric disabilities. Likewise, after controlling for parent, family, court, case, and policy characteristics, courts had lower odds of applying the ADA in cases involving mothers with psychiatric disabilities or multiple disabilities. Other factors were also associated with courts raising or applying the ADA, including criminal history, substance use history, prior child welfare system involvement, the presence of a disabled child, when the case was decided, geographical location, negative expert testimony, provision of family preservation or reunification services, and state dependency statutes that included parental disability as grounds for termination of parental rights. The Article concludes by discussing the policy and practice implications of the study’s findings and identifying directions for future research.