Disabled Veteran Being Discriminated Against in Family Court

U.South. Department of Health And Man Services

Office for Ceremonious Rights Administration for Children and Families

U.S. Section of Justice

Ceremonious Rights Division
Disability Rights Department

Protecting the Rights of Parents and Prospective Parents with Disabilities:
Technical Assist for Country and Local Child Welfare Agencies and Courts nether
Title II of the Americans with Disabilities Deed and Section 504 of the Rehabilitation Human activity

The United States Department of Health and Human Services (HHS) and the United States Department of Justice (DOJ) are issuing this technical assistance to assist state and local child welfare agencies and courts to ensure that the welfare of children and families is protected in a manner that also protects the civil rights of parents and prospective parentsⁱ with disabilities.  This guidance provides an overview of the bug and application of civil rights laws, answers to specific questions and implementation examples for child welfare agencies and courts, and resources to consult for additional data.

Section 504 of the Rehabilitation Act of 1973 (Section 504)ⁱⁱ and Title Two of the Americans with Disabilities Act of 1990 (ADA)³ protect parents and prospective parents with disabilities from unlawful discrimination in the administration of kid welfare programs, activities, and services.⁴ At the same fourth dimension, child welfare agencies and courts have the responsibleness to protect children from abuse and neglect.  The goals of kid welfare and inability non-discrimination are mutually attainable and complementary.  For example, ensuring that parents and prospective parents with disabilities have equal access to parenting opportunities increases the opportunities for children to be placed in safety and caring homes.

Need for This Technical Assistance

Both the HHS Office for Civil Rights (OCR) and DOJ Ceremonious Rights Segmentation have received numerous complaints of bigotry from individuals with disabilities involved with the child welfare system, and the frequency of such complaints is rising.  In the course of their civil rights enforcement activities, OCR and DOJ have found that kid welfare agencies and courts vary in the extent to which they have implemented policies, practices, and procedures to foreclose discrimination confronting parents and prospective parents with disabilities in the child welfare system.

For example, in a recent joint investigation past OCR and DOJ of practices of a Land child welfare agency, OCR and DOJ determined that the State bureau engaged in bigotry against a parent with a inability.⁵  The investigation arose from a complaint that a mother with a developmental inability was subject area to discrimination on the basis of her inability because the Country did not provide her with supports and services post-obit the removal of her two-day-old infant.  The supports and services provided and made available to nondisabled parents were not provided to this parent, and she was denied reasonable modifications to accommodate her disability.  As a issue, this family unit was separated for more than two years.

These issues are long-continuing and widespread.  Co-ordinate to a comprehensive 2012 report from the National Council on Disability (NCD), parents with disabilities are overly, and often inappropriately, referred to child welfare services, and once involved, are permanently separated at unduly loftier rates.⁶  In a review of inquiry studies and other data, NCD ended that amid parents with disabilities, parents with intellectual disabilities and parents with psychiatric disabilities face the virtually discrimination based on stereotypes, lack of individualized assessments, and failure to provide needed services.⁷ Parents who are blind or deafened as well report significant bigotry in the custody procedure, as exercise parents with other physical disabilities.⁸  Individuals with disabilities seeking to go foster or adoptive parents also encounter bias and unnecessary barriers to foster care and adoption placements based on speculation and stereotypes most their parenting abilities.^ix

Discriminatory separation of parents from their children can result in long-term negative consequences to both parents and their children.   In add-on to the OCR and DOJ case where a mother and daughter were deprived of the opportunity for maternal/kid bonding for two years, the National Council on Inability written report is replete with case studies with similar consequences.  For example, a kid welfare agency removed a newborn for 57 days from a couple considering of assumptions and stereotypes virtually their incomprehension, undermining precious moments for the babe and parents that can never be replaced.¹⁰ Similarly, afterwards a child welfare agency removed a three-year-old from his grandmother because she had arthritis and a mobility disability, the toddler developed behavioral problems and progressively detached from his grandmother, though he had had no such experiences before this separation.^eleven   Any instance of discrimination against parents and caregivers due to their disability is not acceptable.

Part of HHS and DOJ

The Children'south Bureau in the HHS Administration for Children and Families administers funding for child welfare agencies and courts and provides guidance and technical help to child welfare agencies regarding child welfare law.  HHS OCR is responsible for ensuring that entities receiving Federal fiscal assistance from HHS, including child welfare agencies and country courts, comply with their legal obligation under Section 504 to provide equal access to kid welfare services and activities in a nondiscriminatory way.  In addition, both DOJ and HHS OCR enforce Championship 2 of the ADA against public entities, including child welfare agencies and country courts.

Overview of Legal Requirements

Title II of the ADA

Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.¹²  Title II of the ADA applies to the services, programs, and activities of all state and local governments throughout the United States, including child welfare agencies and court systems.¹³  The "services, programs, and activities" provided by public entities include, but are not limited to, investigations, assessments, provision of in-home services, removal of children from their homes, case planning and service planning, visitation, guardianship, adoption, foster care, and reunification services.  "Services, programs, and activities" also extend to kid welfare hearings, custody hearings, and proceedings to terminate parental rights.

Section 504 of the Rehabilitation Deed

Section 504 provides that no qualified private with a disability shall, past reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of any entity that receives Federal financial assistance, or be subjected to discrimination by such entity.¹⁴  Federal financial assistance includes grants, loans, and reimbursements from Federal agencies, including aid provided to child welfare agencies and the courts.¹⁵  An entity tin can be a recipient of Federal financial assistance either directly or as a sub-recipient.^sixteen  Department 504 applies to all of the operations of agencies and sub-agencies of state and local governments, even if Federal financial assistance is directed to i component of the agency or for ane purpose of the bureau.¹⁷  Recipients of Federal fiscal help must agree to comply with Section 504, and generally other civil rights laws, as a condition of receiving Federal financial help.¹⁸

Application

A child welfare agency or court may non, directly or through contract or other arrangements, engage in practices or methods of administration that have the consequence of discriminating on the ground of disability, or that have the purpose or upshot of defeating or essentially impairing accomplishment of the objectives of the child welfare agency's or court'due south program for persons with disabilities.^xix  Under these prohibitions, a child welfare agency could be responsible for the discriminatory actions of a private foster care or adoption agency with which it contracts when those actions are taken in fulfillment of the private entity's contractual obligations with the child welfare agency.  For example, if the private foster care or adoption agency imposed discriminatory eligibility requirements for foster or adoptive parents that screened out prospective parents with HIV, the land kid welfare agency would nigh likely be responsible for the contractor'due south practice of discriminating on the ground of inability.

Two principles that are fundamental to Championship 2 of the ADA and Section 504 are:
(one) individualized handling; and (2) full and equal opportunity.  Both of these principles are of detail importance to the administration of kid welfare programs.

Individualized handling.  Individuals with disabilities must be treated on a case-past-case footing consistent with facts and objective bear witness.²⁰ Persons with disabilities may not exist treated on the basis of generalizations or stereotypes.²¹  For example, prohibited treatment would include the removal of a kid from a parent with a disability based on the stereotypical conventionalities, unsupported by an private assessment, that people with disabilities are unable to safely parent their children.  Another example would be denying a person with a disability the opportunity to go a foster or adoptive parent based on stereotypical behavior most how the disability may impact the individual'due south power to provide advisable care for a child.

Total and equal opportunity.  Individuals with disabilities must exist provided opportunities to do good from or participate in child welfare programs, services, and activities that are equal to those extended to individuals without disabilities.²²  This principle can require the provision of aids, benefits, and services different from those provided to other parents and prospective parents where necessary to ensure an equal opportunity to obtain the same upshot or proceeds the same do good, such equally family unit reunification.²³

This does not mean lowering standards for individuals with disabilities; rather, in keeping with the requirements of individualized handling, services must be adapted to run across the needs of a parent or prospective parent who has a disability to provide meaningful and equal access to the benefit. ²⁴ In some cases, information technology may mean ensuring physical or programmatic accessibility or providing auxiliary aids and services to ensure adequate communication and participation, unless doing so would upshot in a fundamental alteration to the nature of the program or undue financial and authoritative brunt.²⁵  For case, a child welfare agency must provide an interpreter for a father who is deaf when necessary to ensure that he can participate in all aspects of the child welfare interaction.  In other instances, this may mean making reasonable modifications to policies, procedures, or practices, unless doing and so would result in a fundamental alteration to the nature of the plan.²⁶  For example, if a child welfare agency provides classes on feeding and bathing children and a female parent with an intellectual disability needs a unlike method of didactics to learn the techniques, the agency should provide the female parent with the method of education that she needs.

Under Championship II of the ADA or Section 504, in some cases, a parent or prospective parent with a disability may not exist advisable for child placement because he or she poses a pregnant risk to the health or safety of the kid that cannot be eliminated by a reasonable modification.²⁷ This exception is consistent with the obligations of child welfare agencies and courts to ensure the safety of children.  Nevertheless, both the ADA and Section 504 require that decisions about child safety and whether a parent or prospective parent represents a threat to safety must exist based on an individualized assessment and objective facts, including the nature, duration, and severity of the risk to the child, and the probability that the potential injury to the child will really occur.²⁸  In addition, if the risk can exist eliminated past a reasonable modification of policies, practices, or procedures, or by the provision of auxiliary aids or services, the child welfare agency must take such mitigating actions.²⁹  A public entity may impose legitimate safe requirements necessary for the condom operation of its services, programs, or activities, but they may not be based on stereotypes or generalizations well-nigh persons with disabilities.^xxx

Past applying these principles consistently in the child welfare organisation, child welfare agencies and courts can ensure that parents and prospective parents with disabilities have equal access to parenting opportunities while ensuring children safely remain in or are placed in prophylactic and caring homes. The fastened Questions and Answers provide more detailed data and specific implementation examples for child welfare agencies and courts.

QUESTIONS AND ANSWERS

1. What are the basic requirements of ADA Title Ii and Section 504?

   Answer: Championship II of the ADA provides that no qualified individual with a inability shall, by reason of such disability, be excluded from participation in, exist denied the benefits of, or exist subjected to discrimination in, the services, programs, or activities of state and local government entities.³¹  Section 504 similarly prohibits bigotry on the basis of disability against qualified individuals with a disability in programs, services, and activities receiving Federal fiscal aid.³²

   Under the ADA and Department 504, programs cannot deny people with disabilities an opportunity to participate,³³ and must provide people with disabilities with meaningful and equal admission to programs, services, and activities.³⁴  Programs and services must be accessible to and usable by people with disabilities.³⁵  In add-on, programs must provide people with disabilities with an equal opportunity to participate in and benefit from the programs, services and activities of the entity;³⁶ they are also prohibited from using methods of programme administration, which includes written rules every bit well as agency practices, that take a discriminatory event on individuals with disabilities.³⁷  Moreover, programs must provide reasonable modifications in policies, practices, and procedures when necessary to avoid bigotry;³⁸ and must take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others through the provision of auxiliary aids and services.³⁹

   Who is protected by disability nondiscrimination laws?

2. Who is considered a person with a disability under Title Two of the ADA and Section 504?

   Answer :  The ADA and Section 504 protect the rights of individuals with disabilities.⁴⁰ A "inability" is defined as a physical or mental impairment that substantially limits a major life activity, such equally caring for oneself, performing manual tasks, breathing, standing, lifting, bending, speaking, walking, reading, thinking, learning, concentrating, seeing, hearing, eating, sleeping, or working.⁴¹  Major life activities also include the operation of major bodily functions, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, or bladder, neurological, encephalon, and respiratory, circulatory, endocrine, and reproductive functions.⁴²

   Congress has made clear that the definition of disability in the ADA and Section 504 is to be interpreted broadly.⁴³  Fifty-fifty if an individual'southward substantially limiting impairment can be mitigated through the utilise of medication; medical supplies, equipment, and devices; learned behavioral or adaptive neurological modifications; assistive applied science (e.1000. a person with a hearing inability who uses hearing aids that substantially restores the sense of hearing); or reasonable modifications to policies, practices, or procedures, the individual is however protected past the ADA and Department 504.⁴⁴  The ADA and Section 504 also employ to people who have a record of having a substantial impairment (e.g., medical, military, or employment records denoting such an impairment), or are regarded as having such an impairment, regardless of actually having an impairment.⁴⁵

   An "individual with a inability" under the ADA and Section 504 does non include an individual who is currently engaged in the illegal use of drugs, when the state or local government plan or program receiving Federal financial assistance acts on the basis of the illegal drug use.⁴⁶  Nevertheless, an individual is non excluded from the definition of inability on the basis of the illegal use of drugs if he or she (ane) has successfully completed a drug rehabilitation program or has otherwise been successfully rehabilitated and is no longer engaging in drug employ, or (ii) is participating in a supervised rehabilitation program and is no longer engaging in drug use.⁴⁷

   To exist eligible, an private with a inability must be "qualified."  An individual with a disability is qualified if he or she  meets the essential eligibility requirements of a service, program, or action, with or without the provision of reasonable modifications, the provision of appropriate auxiliary aids and services, or the removal of architectural and advice barriers.⁴⁸

3. Who do Title 2 of the ADA and Department 504 protect in kid welfare programs?

   Answer: Title Ii of the ADA and Section 504 protect qualified individuals with disabilities, which can include children, parents, legal guardians, relatives, other caretakers, foster and adoptive parents, and individuals seeking to become foster or adoptive parents, from discrimination by child welfare agencies and courts.⁴⁹  Title II too protects individuals or entities from being denied or excluded from child welfare services, programs or activities considering of clan with an individual with a disability.^fifty For instance, Title II prohibits a child welfare agency from refusing to identify a kid with a prospective foster or adoptive parent because the parent has a friend or relative with HIV.

   Title II and Department 504 also protect "companions" of individuals involved in the kid welfare system when the companion is an advisable person with whom the kid welfare agency or court should communicate.  A companion may include any family member, friend, or associate of a person seeking or receiving child welfare services.⁵¹  For case, when a child welfare bureau communicates with an individual's family member who is deaf, advisable auxiliary aids and services to the family member must exist provided past the agency to ensure effective communication.⁵²

   Finally, the ADA and Department 504 protect individuals from any retaliation or coercion for exercising their right not to experience bigotry on the ground of disability.  Individuals enjoy this protection whether or non they have a inability.⁵³

   Who is required to comply with the disability nondiscrimination laws?

4. What types of child welfare programs and activities are covered by these laws?

   All activities of child welfare agencies are covered by Title II and Section 504, including removal proceedings and agencies' programs and activities must not discriminate on the ground of disability.

   Answer :  Championship II covers all of the programs, services, and activities of country and local governments, their agencies, and departments.⁵⁴  Similarly, Department 504 applies to all of the activities of agencies that receive Federal financial assist.⁵⁵  Therefore, all child welfare-related activities and programs of child welfare agencies and courts are covered, including, just not express to, investigations, witness interviews, assessments, removal of children from their homes, case planning and service planning, visitation, guardianship, adoption, foster intendance, reunification services, and family courtroom proceedings.  Championship II and Section 504 besides make child welfare agencies responsible for the programs and activities of private and non-profit agencies that provide services to children and families on behalf of the state or municipality.⁵⁶

5. Do Title II and Section 504 utilize to the programs, services, and activities of family courts?

   Respond :  Yes.  Land court proceedings, such equally termination of parental rights proceedings, are land activities and services for purposes of Title II.⁵⁷  Section 504 also applies to state court proceedings to the extent that court systems receive Federal financial assistance.⁵⁸

   Title 2 and Department 504 require court proceedings to be attainable to persons with disabilities, and persons with disabilities must have an equal opportunity to participate in proceedings.⁵⁹  For example, if a conference or hearing is scheduled in a location that is inaccessible to wheelchair users, information technology should be moved to an accessible location in order to ensure a wheelchair user can participate fully in the conference or hearing.

   Courts are required to provide auxiliary aids and services when necessary to ensure effective advice, unless an undue burden or fundamental alteration would result.⁶⁰  For example, courts should provide appropriate auxiliary aids and services to a parent who is deaf and then that he or she can access court proceedings equally fully and effectively as those who are not deafened.

   Similar child welfare agencies, courts must too make reasonable modifications to policies, practices, and procedures where necessary to avoid discrimination on the basis of disability.⁶¹  For example, it may be necessary to adjust hearing schedules to accommodate the needs of persons with disabilities, if the demand for the adjustment is related to the individual'due south disability.  Or information technology may be necessary to provide an aide or other assistive services in order for a person with a inability to participate fully in a court event.⁶²  Such assistance should be provided unless doing so would upshot in a fundamental alteration.⁶³

6. Do Title Two and Department 504 apply to private contractors of child welfare agencies and courts?

   Answer :  Aye.  Title Ii prohibits discrimination in kid welfare programs and services when those services are provided by contractors.⁶⁴  Section 504 prohibits bigotry in child welfare programs receiving federal financial assist, including programs receiving federal fiscal assistance operated by private entities under contract with kid welfare agencies.⁶⁵  Accordingly, to the extent that courts and agencies contract with individual agencies and providers to conduct child welfare activities, the agencies should ensure that in the performance of their contractual duties contractors comply with the prohibition of discrimination in Title Ii and Section 504.⁶⁶

   What do the inability nondiscrimination laws require of kid welfare agencies and courts?

7. What is a reasonable modification?

   Respond:  Under Title II of the ADA and Section 504, child welfare agencies and courts must brand changes in policies, practices, and procedures to accommodate the private needs of a qualified person with a disability, unless the change would result in a key alteration to the nature of the programme.⁶⁷ Parenting skills exercise not come naturally to many parents, with or without disabilities.  To provide aid to parents with disabilities that is equal to that offered to parents without disabilities, child welfare agencies may be required to provide enhanced or supplemental grooming, to increment frequency of training opportunities, or to provide such training in familiar environments conducive to learning.  For example, kid welfare agencies may take a parenting skills class once per week.  For a parent with a disability who requires individualized assistance in learning new skills considering of her or his inability, child welfare agencies may need to alter this training to allow more frequent, longer, or more meaningful training.

8. What are auxiliary aids and services?  What does it mean to provide constructive communication?

   Answer :  Child welfare agencies and courts are required to accept advisable steps – including the provision of appropriate auxiliary aids and services – where necessary to ensure that individuals with communication disabilities understand what is said or written and tin communicate as effectively as individuals without disabilities.⁶⁸  Examples of auxiliary aids and services include, amid others, qualified interpreters, note takers, computer-aided transcription services, accessible electronic and it, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed explanation decoders, open and closed captioning, telecommunication devices for deaf persons (TDD'southward), videotext displays, qualified readers, taped texts, sound recordings, braille materials, large print materials, and modifications to existing devices.⁶⁹

   Child welfare agencies and courts should consider whether they are taking appropriate steps to ensure that constructive communication is provided in unlike settings and as cases develop.  For example, a qualified interpreter may be necessary for smaller settings involving simply a few people, such every bit home visits or assessments, whereas the utilise of real-time captioning may be appropriate during larger grouping meetings, such equally family squad meetings or in court, where numerous people are present or where the layout of the room makes it difficult to view an interpreter and obtain visual cues from the speaker.

   The type of auxiliary aid or service necessary to ensure effective advice will vary in accordance with the method of communication used by the individual with a disability; the nature, length, and complexity of the advice involved; and the context in which the communication is taking place.^seventy For instance, a local kid welfare bureau may exist required to provide qualified interpreters to ensure effective communication with individuals with disabilities during bureau meetings to discuss service planning.  Nevertheless, to communicate a simple bulletin such every bit an date appointment or accost, handwritten notes may be sufficient.

   Child welfare agencies must refrain from using pocket-sized children as interpreters except in limited exigent circumstances.  Developed companions may exist used as interpreters only in emergencies and only when other factors are met.

   State and local child welfare agencies and courts must give primary consideration to the auxiliary aid or service requested by the private.⁷¹  This ways, for example, that if a parent with a inability requests a qualified interpreter who is an oral transliterator (a type of interpreter who facilitates spoken advice betwixt individuals who are deafened or difficult of hearing and individuals who are non), the agency must provide a qualified oral transliterator, unless the agency can demonstrate that information technology would pose a fundamental amending or an undue administrative or financial burden and an alternative auxiliary assistance or service provides advice to the private that is as constructive as advice provided to others.⁷²  If provision of a particular auxiliary aid or service would consequence in a fundamental alteration in the nature of a service, program, or activity, or if information technology would issue in undue financial and administrative burdens, a child welfare agency or courtroom demand non provide information technology.⁷³  These entities must nonetheless provide auxiliary aids or services that exercise non result in a fundamental alteration or undue burdens that place the individual with a disability on equal footing with individuals without disabilities to the maximum extent possible.

   In order to exist effective, auxiliary aids and services must be provided in a timely fashion and in such a way as to protect the privacy and independence of the private with a disability.⁷⁴

   Child welfare agencies and courts are prohibited from requiring individuals with disabilities to supply their own interpreters or other auxiliary aids and services.⁷⁵  Child welfare agencies and courts may not rely on minor children accompanying individuals with disabilities to interpret, except in emergencies involving imminent threats to the condom or welfare of an individual or the public where no interpreter is bachelor.⁷⁶

   Child welfare agencies should consult with and include organizations that support and advocate for the rights of individuals with disabilities in their policy-making and training efforts.

   Child welfare agencies and courts may rely on adults accompanying individuals with disabilities to interpret, simply only in emergencies or where the individual with a inability specifically makes such a request, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assist is advisable nether the circumstances.⁷⁷  State and local kid welfare agencies and courts are also prohibited from placing a surcharge on a particular individual with a disability or any group of individuals with disabilities to embrace the costs of the provision of auxiliary aids or other services that are required to provide that individual or group with nondiscriminatory treatment.⁷⁸
9. What steps are child welfare agencies required to accept to ensure that parents and prospective parents with disabilities involved with the child welfare system have an equal opportunity to participate in and benefit from their programs and activities?

   Title II and Department 504 require that agency staff refrain from basing assessments, services, or decisions on assumptions, generalizations, or stereotypes well-nigh inability.

   Answer :  Child welfare agencies are required to ensure that parents and prospective parents with disabilities involved in the kid welfare system are afforded an opportunity to preserve their families and/or to become parents that is equal to the opportunity that the entities offering to individuals without disabilities.⁷⁹

   Agencies should accept steps to ensure, for example, that investigators, social workers, supervisors, and others base of operations their assessments of and decisions regarding individuals with disabilities on actual facts that pertain to the individual person, and not on assumptions, generalizations, fears, or stereotypes about disabilities and how they might manifest.  The child welfare bureau'southward obligation to ensure individualized assessments applies at the outset and throughout any involvement that an private with a disability has with the child welfare system.

   Child welfare agencies should take steps to ensure that their obligations under Title 2 and Section 504 are met past reviewing the following:

   • existing policies, practices, and procedures;
   • how the agency really processes cases;
   • the bureau's licensing and eligibility requirements for foster parents and guardians; and
   • whether in that location are staff training or professional development needs.

   Service plans for parents and prospective parents should address the private's inability-related needs and the auxiliary aids and services the agency volition provide to ensure equal opportunities.  At the same time, service plans should not rely on fears or stereotypes to require parents with disabilities to accept unnecessary services or consummate unnecessary tasks to prove their fitness to parent when nondisabled parents would not be required to practice and then.

   Agencies likewise have an obligation to ensure that the aids, benefits, and services provided to parents and prospective parents in back up of advisable service program activities and goals – such equally visitation, parenting skills grooming, transportation assistance, counseling, respite, and other "family unit preservation services" and "family unit support services" – are accordingly tailored to exist useful to the individual.⁸⁰ For case, if a child welfare bureau provides transportation to visits for individuals without disabilities, it should provide accessible transportation to individuals with disabilities to ensure equal opportunity.

   To ensure that persons with disabilities have equal opportunity to retain or reunify with their children, it may be necessary for the agency to reasonably modify policies, practices, and procedures in child welfare proceedings.  In general, agencies should consider whether their existing policies, practices, and procedures; their actual processing of cases; and their training materials comply with the nondiscrimination requirements of Championship Ii and Section 504 for individuals with disabilities.  Agencies should also take appropriate steps to ensure that components of kid welfare processing, such as "fast-track" and concurrent planning, are not practical to persons with disabilities in a manner that has a discriminatory issue and that denies parents with disabilities the opportunity to participate fully and meaningfully in family unit reunification efforts.

   In some instances, providing appropriate supports for persons with disabilities means selecting an appropriate alternative already provided in the Federal child welfare statutes.  For instance, section 475 of the Social Security Human action provides that the kid welfare agency is required to file a petition to terminate parental rights when the child is in foster care for the preceding 15 out of 22 months.  However, the law provides exceptions to this requirement and gives child welfare agencies the flexibility to work with parents who have a child in foster intendance beyond the fifteen month menstruum, including parents with disabilities.⁸¹  Exceptions to the termination of parental rights requirement include situations where: (1) at the state's discretion, the kid is being cared for past a relative; (2) there is a compelling reason for determining that filing the petition would not be in the all-time interests of the child; or (3) the state, when reasonable efforts are to be made, has failed to provide such services deemed necessary for the safe render of the kid to his or her dwelling house. ⁸² Every bit to number (3), a kid welfare agency should provide the family unit of the child with the services necessary for the rubber return of the child to the child's home in a manner that meets the unique needs of the family.  Failure to provide services, including services to address family members' inability-related needs, could qualify as an exception to the termination of parental rights requirement.  Decisions about whether this exception applies to a state of affairs in which the supports necessary for a person with a disability to access services were not provided should exist made on a instance-past-case basis.

   Given the responsibilities of agencies discussed above, we also recommend that courts consider whether parents and prospective parents with disabilities have been afforded an equal opportunity to accomplish reunification, including whether they accept been provided with appropriate services and supports and other reasonable modifications to enable them to participate fully and meaningfully in family preservation efforts.  Additionally, we advise that courts consider whether any reasonable modifications are necessary and should be made for parents with disabilities.  Nosotros also recommend that courts consider show concerning the manner in which the use of adaptive equipment or supportive services may enable a parent with disabilities to carry out the responsibilities of parenting.

   Foster care and adoption agencies must also ensure that qualified foster parents and prospective parents with disabilities are provided opportunities to participate in foster care and adoption programs equal to opportunities that agencies provide to individuals without disabilities.⁸³   This may crave foster care and adoption agencies to reasonably modify policies, practices, and procedures, where necessary to avert discrimination on the footing of disability.  For instance, an adoption bureau may exist required to provide large print and electronically attainable adoption materials to accommodate the known needs of a visually impaired adoption plan applicant.

10. When a child welfare agency or courtroom provides or requires an assessment of a parent during the processing of the child welfare case, what practice Championship Ii and Section 504 crave regarding the cess?

    Reply :  Title II and Section 504 require that assessments exist individualized.⁸⁴  An individualized assessment is a fact-specific inquiry that evaluates the strengths, needs, and capabilities of a particular person with disabilities based on objective evidence, personal circumstances, demonstrated competencies, and other factors that are divorced from generalizations and stereotypes regarding people with disabilities.  Kid welfare agencies and courts may besides exist required to provide reasonable modifications to their policies, practices, or procedures and/or advisable auxiliary aids and services during assessments to ensure equal opportunities for individuals with disabilities.  For case, a child welfare agency or court may be required to provide a qualified sign language interpreter to suit an individual with a communication inability during an evaluation to ensure an authentic assessment.

11. How does the equal opportunity requirement apply to case planning activities of kid welfare agencies?

    Respond :  The equal opportunity requirement applies throughout the continuum of a child welfare instance, including example planning activities.  In many instances, providing the same services and resources to an individual with a disability that are provided to individuals without disabilities will not be sufficient to provide an equal opportunity to an individual with a disability.  Where this is the case, Championship 2 and Department 504 may require agencies to provide additional, individually tailored services and resources to meet the requirement to provide an equal opportunity to participate in and benefit from the program.  For instance, when providing preparation to parents, agencies should consider the individual learning techniques of persons with disabilities and may demand to incorporate the utilise of visual modeling or other individualized techniques to ensure equal opportunity to participate in and benefit from the training.

    Staff should consider whether the agency is appropriately profitable family members in meeting service plan tasks and case goals, and whether modifications must be fabricated.  For instance, if parenting training is not working, staff should evaluate whether there are any unnecessary barriers to the grooming that could be removed or reasonably modified, such every bit increased opportunities for modeling behavior.  Agencies should also ensure that staff members develop appropriate service plan tasks and goals that address the individualized needs of all affected family members with disabilities, recognizing that allowing parents with disabilities to use family members as part of their back up network may exist advisable.

12. Is an agency required to arrange for services to parents and prospective parents with disabilities that are necessary to avert discrimination but are not bachelor inside the agency's programs?

    Child welfare agencies may be required to alter their own services, or, when necessary, to accommodate for services outside of the agency, in order to ensure equal opportunity for parents and prospective parents with disabilities nether Championship Ii and Section 504.

    Reply :  In addition to providing to parents with disabilities all reunification services that it provides to parents without disabilities, a child welfare agency may be required, under Title 2 and Section 504, to conform for bachelor services from sources outside of the agency equally a reasonable modification of its procedures and practices for parents with disabilities and so long as doing so would not constitute a key alteration.  Arranging for such services from outside sources may be necessary to provide an equal opportunity to participate in and benefit from the agency'south programs.  Many specialized services to support persons with disabilities are oft available from other social service agencies, as well every bit disability organizations.  For example, for a person with a mental wellness disability, mental health services and supports, such every bit supportive housing, peer supports, believing community treatment, and other community-based supports are often available from mental health service agencies.  Child welfare agencies should coordinate with such agencies and organizations to ensure that parents and prospective parents with disabilities receive the nigh complete set of back up services possible, and as well to ensure that reunification and other services are specifically tailored to their needs.⁸⁵ This requirement does not change an entity'southward responsibility to brand available those reunification services provided to parents without disabilities or to reasonably modify them to provide equal opportunity.

13. Are child welfare agencies and courts permitted to impose a surcharge on persons with disabilities for the provision of reasonable modifications or auxiliary aids and services?

    Respond :  No.  Championship Two prohibits the imposition of surcharges to cover the costs of measures required to provide an private with nondiscriminatory treatment.⁸⁶  For case, child welfare agencies and courts may not charge persons with disabilities for whatever costs associated with providing effective communication during visitation, meetings, and court hearings, and may be required to provide transportation to accessible facilities when needed to fulfill their plan admission obligations.

14. Child welfare agencies accept an obligation to ensure the wellness and prophylactic of children.  How can agencies comply with the ADA and Department 504 while likewise ensuring wellness and safety?

    Answer : Nether child welfare police, kid welfare agencies must brand decisions to protect the safety of children. The ADA and Section 504 are consistent with the principle of child safety. For instance, the ADA explicitly makes an exception where an individual with a disability represents a "straight threat."⁸⁷ Section 504 incorporates a similar principle.⁸⁸

    Under the ADA and Department 504, a direct threat is a significant risk to the health or rubber of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.⁸⁹  In determining whether an individual poses a direct threat to the wellness or prophylactic of a kid or others, child welfare agencies and courts must make an individualized assessment, based on reasonable judgment that relies on electric current medical knowledge or on the all-time bachelor objective evidence, to define the nature, duration, and severity of the risk to the kid; the probability that the potential injury to the child will really occur; and whether reasonable modifications of policies, practices, or procedures volition mitigate the hazard.⁹⁰

    As such, in some cases an individual with a inability may not be a qualified private with a disability for child placement purposes.  What both the ADA and Section 504 require, however, is that decisions about child safety and whether a parent, prospective parent, or foster parent represents a direct threat to the safety of the child must be based on an individualized assessment and objective facts and may not exist based on stereotypes or generalizations almost persons with disabilities.⁹¹

15. What are another all-time practices for kid welfare agencies and courts?

    Answer :  We recommend that child welfare agencies and courts review and update their policies and procedures on a regular basis to ensure that they comply with the ADA and Section 504.  We recommend that child welfare agencies and courts also ensure that their employees and contractors are sufficiently trained in ADA and Department 504 compliance.  In addition, nosotros recommend that they expect for ways to coordinate with disability organizations and agencies to assistance in service planning and to support them in their efforts to ensure equal opportunity for parents and prospective parents with disabilities.

    How tin can aggrieved persons file a complaint?

16. What can individuals practise when they believe they accept been subjected to discrimination in violation of Title II or Department 504?

    Reply: An aggrieved person may raise a Title Ii or Section 504 claim in child welfare proceedings.  Additionally, subject to sure limitations, an aggrieved person may pursue a complaint regarding bigotry in kid welfare services, programs, or activities nether Title Ii or Section 504 in federal court. ⁹²

    Aggrieved individuals may also file complaints with HHS and DOJ.  HHS and DOJ also have authority to initiate compliance review investigations of child welfare agencies and courts with or without receiving a complaint.  If an investigation of a complaint or a compliance review reveals a violation, HHS or DOJ may issue letters of findings and initiate resolution efforts.⁹³  DOJ may initiate litigation when it finds that a kid welfare agency or court is not in compliance with Title Ii.  HHS may also refer cases to DOJ for litigation where a violation is institute and is not voluntarily resolved.⁹⁴

    Title 2 and Section 504 allow for declaratory and injunctive relief, such every bit an social club from a court finding a violation and requiring the provision of reasonable modifications.  Title II and Department 504 also allow for compensatory damages for aggrieved individuals.  Individuals who prevail as parties in litigation may also obtain reasonable attorney'southward fees, costs, and litigation expenses.⁹⁵

    Under Section 504, remedies also include suspension and termination of Federal financial assist, the use of cautionary language or attachment of special weather condition when awarding Federal financial help, and bypassing recalcitrant agencies and providing Federal financial assistance directly to sub-recipients.⁹⁶

    Additional Resource

    For more information about the ADA and Section 504, yous may call the DOJ's cost-gratuitous ADA information line at 800-514-0301 or 800-514-0383 (TDD), or access its ADA website at www.ada.gov.  For more information about the responsibilities of child welfare agencies under the ADA and Rehabilitation Act, meet "DOJ/HHS Articulation Letter to Massachusetts Department of Children and Families," at www.ada.gov/new.htm.  For more information well-nigh Title II of the ADA, including the Title II Technical Assistance Manual and Revised ADA Requirements:  Effective Communication, see www.ada.gov/ta-pubs-pg2.htm.

    Information about filing an ADA or Section 504 complaint with DOJ can be found at https://beta.ada.gov/file-a-complaint/.  Individuals who believe they take been aggrieved nether Championship 2 or Section 504 should file complaints at the earliest opportunity.

    You tin also file a Section 504 or Championship II ADA complaint with OCR at
    http://world wide web.hhs.gov/ocr/civilrights/complaints/index.html.

    General information about civil rights and child welfare issues can be found at:
    http://www.hhs.gov/ocr/civilrights/resources/specialtopics/adoption/index.html.

    For information about ACF'southward Children Bureau, delight visit:
    http://www.acf.hhs.gov/programs/cb.

    For ACF and OCR regional offices, please visit:

    • http://www.acf.hhs.gov/programs/oro
    • http://www.hhs.gov/ocr/office/about/rgn-hqaddresses.html

    Duplication of this document is encouraged.

    August 2015

The Americans with Disabilities Human action authorizes the Department of Justice (the Department) to provide technical assistance to individuals and entities that have rights or responsibilities under the Act. This document provides informal guidance to assist you in understanding the ADA and the Department'south regulations.

This guidance document is not intended to be a final agency action, has no legally binding issue, and may exist rescinded or modified in the Department'due south complete discretion, in accordance with applicable laws. The Department'due south guidance documents, including this guidance, do non establish legally enforceable responsibilities beyond what is required by the terms of the applicable statutes, regulations, or bounden judicial precedent.

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Source: https://www.ada.gov/doj_hhs_ta/child_welfare_ta.html

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