Beyond Status: The Americans with Disabilities Act and the Parental Rights of People Labeled Developmentally Disabled or Mentally Retarded
Beyond Status: The Americans with Disabilities Act and the Parental Rights of People Labeled Developmentally Disabled or Mentally Retarded
Chris Watkinst 0
0 Copyright @ 1995 California Law Review, Inc. t B.A. 1986, Yale University; J.D. candidate 1996, Boalt Hall School of Law, University of California, Berkeley. I wish to thank two distinguished educators, Professor Marge Shultz and Arlene Mayerson, for their suggestions and criticisms with respect to this Comment. All mistakes are my own. Special thanks to fellow law student Julie Bibb, and to the members and staff of the CaliforniaLaw Review, particularly Jonathan Laba , Lee Steinberg, Chris Pederson, Ellen Kaye Fleishhacker, Jacqueline Piscitello, and Karen Fass. I dedicate this Comment to my wife, Martha Tait-Watkins, my sister, Beth Sturman, and to my parents, Don and Barbara Watkins , USA
TABLE OF CONTENTS
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C. Lack of Reunification Services ......................... 1444
D. Inadequate Reunification Services ...................... 1445
IV. Children, Parents, and Society: Weighing Their Interests .... 1448
A. Underlying Rationales for the Differential Treatment .... 1448
1. Protecting Children ................................ 1448
2. Protecting Society ................................. 1454
a. Economics ..................................... 1454
b. Eugenics ....................................... 1455
c. Stereotype and Fear ............................ 1456
B. The Resulting Damage ................................. 1457
1. Damage to Children ............................... 1458
2. Damage to Parents ................................. 1459
3. Damage to Society ................................. 1460
V. Remedying the Discrimination ............................. 1461
A. Constitutional Challenges .............................. 1461
1. A Legacy of Inadequate Protection ................. 1461
2. Applying Equal Protection Analysis After the ADA . 1463
a. Congressional Direction Regarding Heightened
Scrutiny ........................................ 1463
b. Applying Heightened Scrutiny .................. 1466
B. Title II of the ADA ................................... 1468
C. A Plan for Applying Title II of the ADA ............... 1471
1. Statutes ........................................... 1471
2. Courts ............................................. 1472
3. Reunification Services ............................. 1473
Conclusion ...................................................... 1475
Over the past quartercentury,people with developmental disabilities
have graduallymoved out of institutionsand into the mainstreamofsociety.
One result of this movement has been a dramaticincreasein the number of
developmentally disabled parents. Additionally, there has been a
corresponding increase in the number of parental rights termination cases
involving parentswith developmental disabilities. This Comment suggests
that state courts have implementedparentalrightsstatutes in such a way as
to treat developmental disabilityas a primary
indicatorofparentalinadequacy. Forinstance,courts have used the labels of
"developmentaldisability" and "mental retardation" to justify everything from an initial
intervention in the parent-child relationship to the final termination of
parental rights. The author examines whether such treatment violates
either the EqualProtectionClause of the FourteenthAmendment or Title H
of the Americans with DisabilitiesAct (ADA). He arguesthat states violate
both the Equal Protection Clause and the ADA when they use a parent's
ascribed status as developmentally disabled or mentally retarded as a
determinant of parental fitness. Instead, the author argues, the states
should examine parental behavior to determine parental adequacy. The
Comment concludes by suggesting that states alter their current treatment
of parents with developmental disabilities in order to comply with the
ADA's non-discriminationmandate, and to best serve the interests of children, parents, and society.
INTRODUCTION
Two related trends have pushed the issue of the parental rights of
adults labeled mentally retarded or developmentally disabled1 into the
foreground of both law and social policy. First, the once routine practice of
1. At the risk of awkwardness, this Comment primarily uses the terms "parents labeled mentally
retarded" and "parents labeled developmentally disabled" rather than "mentally retarded parents" or
"developmentally disabled parents.' Both "mental retardation" and "developmental disability" are
broad, imprecise terms that say very little about the persons to whom they are affixed. See infra note 18
for their respective definitions. Thus, this Comment employs somewhat awkward phraseology to
sterilizing persons labeled developmentally disabled or mentally retarded
has gradually subsided over the past two decades. Second, over that same
period, persons labeled developmentally disabled or mentally retarded have
moved in large numbers from segregated institutions t (...truncated)