Massachusetts must stop its yearslong practice of using “unsupported stereotypes” to justify taking away the children of parents with disabilities, under a settlement that the U.S. Justice Department said should serve as a warning to other states.
An investigation by the Justice Department’s Civil Rights Division found in 2015 that the Massachusetts Department of Children and Families had discriminated against a 19-year-old mother with a “mild intellectual disability” by taking her newborn from her in 2012, without first doing an individualized assessment of her ability to care for the child.
As the investigation continued, the Civil Rights Division continued to receive and substantiate similar complaints for years, and concluded that the Bay State had done little to curb the practice.
On Thursday, the investigation culminated in an agreement with the Massachusetts Department of Children and Families and the federal Department of Health and Human Services, with the Justice Department saying it was the first time it ever settled a disability discrimination case with a state child welfare agency. Because Health and Human Services was a party to the litigation, Justice referred to it as a “landmark agreement.”
“We believe this agreement will not only help thousands of families in Massachusetts, but also will provide a road map for child welfare agencies nationwide on how to treat parents with disabilities with the fairness, dignity, and respect that they deserve,” said Eric Dreiband, the assistant attorney general of the department’s Civil Rights Division, in a statement released Thursday.
Under the settlement, Massachusetts did not admit to breaking any laws, including the Americans with Disabilities Act. But it agreed to appoint a statewide disability coordinator, change some of its policies and not make child removal decisions based on “stereotypes or generalizations” about disabled parents.
The state Department of Children and Families must also offer annual professional development training to its employees. Every six months, it must turn over to federal officials data on disability-related complaints and other requests.
Advocates for disabled people and children were pleased with the agreement, as long it is properly enforced.
"It really will involve a culture shift," said Susan Elsen, a child welfare policy advocate at the Massachusetts Law Reform Institute.
The state retains the right to remove a child from the care of a disabled parent, but the child welfare agency must make a case-by-case assessment about whether the child faces imminent risk of abuse or neglect, and may not make that determination solely on a parent's disability, diagnosis, IQ or other “intelligence measures.”
Rather they must base their decision on “current medical knowledge or on the best available objective evidence” after performing an individualized assessment and providing the parent with any necessary accommodations such as a translator or sign language interpreter, according to the agreement.