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The rights of persons with disabilities to be able to be parents were one of the major forms of discrimination that the ADA was intended to eradicate. For example, mandatory sterilization of persons with disabilities was one of the most egregious forms of discrimination that was ever condoned by the Supreme Court of the United States. In 1927, Oliver Wendell Holmes wrote in Buck v. Bell, that “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind ... Three generations of imbeciles are enough.”
Unbelievably, compulsory sterilizations of persons with disabilities continued until the 1960s; however, the stereotype that persons with disabilities cannot be effective parents continues to this day. One of the purposes of the Americans with Disabilities Act was to break down these stereotypes and guarantee all persons to fully participate in all aspects of society, including the ability to be a parent.
Matthew Dietz from Disability Independence Group, and Stacie Schmerling and Howard Talenfeld from Justice for Kids, a division of Kelly Kronenberg, successfully represented Alysha Princess Cesaire in her fight to change the system to make sure that this will not occur to her again and will not occur to any other parent with a disability. We have been working with the Department of Children and Families and have come to a settlement that the Department will revamp their system to ensure that there is adequate training for child protective investigators and procedures in place to ensure that parents with disabilities receive the services required in order to preserve their families.
Alysha is a young lady who lives with spinal ataxia, a physical impairment that is a hereditary disease that affects her brain. The symptoms of this disability include an uncoordinated walk (gait), poor hand-eye coordination, and abnormal speech (dysarthria). She uses a walker and has support of her mother at home. On February 1, 2018, after 14 hours of labor, she gave birth to her son, without an epidural, and was put on oxycontin following the birth. Because of the mother’s disability, a call was made to the Department of Children and Families’ child abuse hotline related to the concerns for the wellbeing of the baby. The report was assigned to the Broward Sheriff’s Office (BSO) Child Protective Investigations Section for investigation, since in Broward County BSO contracts with the Department to conduct child protective investigations. Even though there was no imminent threat demonstrated, and no evaluation of Ms. Cesaire or her disability related needs, the decision was made by BSO that Ms. Cesaire could not bring her son home.
Prior to contemplating removing a child from the custody of a parent, the state must provide “appropriate and available early intervention or preventative services, including services provided in the home, [so that] the child could safely remain at home,” as well as services to preserve and strengthen the child’s family ties and safeguard the child’s welfare., § 39.001(1)(f), and 39.402(7), Fla. Stat,, these securities to preserve a parent with a disability’s fundamental rights and Constitutional rights were often neglected by the state and their contractees, such as BSO. This did not happen with Alysha.
Within days, BSO filed a shelter petition, asserting that Alysha “cannot walk on her own and needs assistance with performing activities of daily living.” It made assumptions that “the mother is unable to walk independently and has poor muscle control” and that “the mother’s movements are involuntary, and she could seriously injure the child who is vulnerable and needs protection.” The BSO Child Protective Investigator took efforts to remark how Alysha was observed drooling and that based on her history, that there was an implied threat to the safety of the baby. BSO deemed Alysha unfit to be a parent without any investigation of her abilities or any services that can assist her. After stating her rights under the Americans with Disabilities Act, Broward Circuit Judge Alberto Ribas, Jr., found that no probable cause to shelter the infant and ruled that “immediate services can be put in place to alleviate the risk to the health safety and welfare to [sic] the child.” Despite the Court’s ruling, BSO continued with its dependency complaint.
BSO deliberately disregarded the judge’s direction in the denial of the shelter order and the legal advice of the assistant attorney general who issued an opinion that the case should be dismissed. BSO knew that there was no legal sufficiency to continue the case, but the Director of the Child Protective Investigative Section did not believe that Cesaire should have the ability to procreate and memorialized it in writing:
“if there is such close supervision of this mother, how did she get [pregnant]? And if they thought it was ok for her to be intimate why didn’t they get her on some birth control???”
The extent of the disapproval of this course of action was apparent. While BSO was working to further interfere in Alysha’s relationship with her baby and failing to provide services to the family, the child’s attorney ad litem moved to dismiss the petition for dependency. The Assistant Attorney General believed and continually asserted that the case was legally insufficient and lacks a prima facie case that the child is at any risk of harm as defined in the statute and there was no legal basis to continue the dependency action. The State of Florida Assistant Attorney General continued that the actions of BSO may violate the parents’ rights under the ADA.
Despite this opposition to continuing this matter and being explicitly put-on notice that there was no legal sufficiency for the dependency case proceeding, BSO disagreed with the assessments of legal counsel, refused to agree to dismiss the case, and continued to insist that the dependency case continue without evaluating or providing any accommodations for her disability.
Alysha is not alone in Florida, and the violation of parents’ rights stem from the knowing failure to develop tools, offer services, and provide training to employees and contractors of DCF to ensure that the disability-related needs of parents can be met, if possible, prior to removal of a child. Or, in Alysha’s case, to take into account her natural family supports, when determining whether she is fit as a parent.
As part of the settlement, the Florida Department of Children and Families agreed to change their policies and procedures to ensure an equal opportunity to benefit from programs of recipients receiving federal financial assistance including developing policies and procedures and protocol to implement the plan. This includes making an assessment of a parent’s disability by a person with professional knowledge to determine if a disability accommodation is needed and develop directories of experts, accommodations, auxiliary aids and services, and community resources to ensure that programs and services can be provided to parents with disabilities to keep the family unified. DCF will include the following language in DCF’s Child Welfare Operating Procedures:
The Department of Children and Families and their employees, and contracted providers and sub-contracted providers, will not base decisions about child safety actions on stereotypes or generalizations about parents with disabilities, or on a parent’s disability, diagnosis, or intelligence measures alone. These decisions are made through an individualized assessment of the parent with a disability and objective facts relating to the danger threats impacting the child. If necessary and reasonable, accommodations must be provided ensure parents with disabilities can fully participate in the programs and services of the dependency system.
Lastly, to create a culture and assumption of providing accommodations, DCF has agreed to develop and implement training modules to dispel stereotypes about parents with disabilities, to learn to recognize a parent’s potential disability, how to evaluate for a parent’s potential disability and how to develop and implement reasonable accommodations for parents with disabilities.
This settlement effectively changes the evaluation of parents to not focus on the disability as a disqualifying factor in the decision to shelter a child, but instead, focus on what accommodations and community resources are available to assist a parent to be more successful in having a family.
Unfortunately, the case against Broward Sheriff’s Office continues. While the policies and procedures that they must implement have changed, Alysha and her family will never forget the days that she was without her baby after giving birth, and the discrimination that she faced when she was told that she should not be a mother.
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