Member Groups

Mental Health Matters
The newsletter of the ISBA’s Mental Health Law Section

June 2015, vol. 1, no. 4

Parent with developmental disability discriminated against by Massachusetts in violation of ADA and Section 504 of the Rehabilitation Act

Only two days after giving birth to her daughter Dana, Sara Gordon1 learned that her baby was being removed from her care. There was no allegation of abuse either before or after the birth. Instead, the baby was taken away based on a concern that Gordon was not able to comprehend how to handle or care for the child because Gordon has a developmental disability.

The Massachusetts Department of Children and Families (DCF) learned of Dana’s birth and Gordon’s “mental retardation”2 and acted swiftly. Although Gordon demonstrated some difficulty taking care of the baby, her parents were available and willing to assist. They had even planned for Gordon and Dana to live with them. Nevertheless, despite a federal requirement and agency policy supporting reunification,3 DCF placed Dana in foster care, resulting in a plan to place the child for adoption.

Determined to be reunited with Dana, Gordon challenged the actions of the Massachusetts’ child welfare agency, eventually enlisting the services of an attorney, and filing complaints with the Departments of Justice and Health and Human Services (DOJ and HHS, respectively).

According to the DOJ and HHS findings, DCF limited Gordon’s visits with her baby and provided only minimal supports and opportunities for Gordon and Dana to be reunited. The findings indicated that DCF “repeatedly acted on its own assumptions about Ms. Gordon’s disability” and “failed to individually analyze what services and supports would be appropriate, considering her disability.”4 DOJ and HHS found that DCF’s actions had the effect of discriminating against Gordon on the basis of disability, defeating the objectives of its reunification program, and denying Gordon and Dana the opportunity to be a family. DCF sought to terminate Gordon’s parental rights, proceeding under a Massachusetts statute that allows a court to find a parent unfit if the parent has a condition, such as “mental deficiency” or “mental illness” which renders the parent “unlikely to provide minimally acceptable care of the child.”5

These same prejudices, stereotypes and unfounded fears about people with developmental disabilities and mental illness are reflected in the Illinois statutory scheme that regulates the termination of parental rights. Among the statutory bases for terminating parental rights in Illinois is the “inability to discharge parental responsibilities” because of “mental impairment, mental illness or an intellectual disability” that is expected to extend beyond a “reasonable time period.”6 Parents with mental illness or developmental or intellectual disabilities have challenged Illinois’ statutory scheme without success.7 In one case, the Illinois Supreme Court stated:

Section 1(D)(p) does not, of course, allow a finding of unfitness based on a mere showing of mental impairment, illness, or [intellectual disability]. Rather, the person’s mental condition must render him unable to discharge his parental responsibilities and the inability to discharge parental responsibilities must extend beyond a reasonable time period. By definition, a child who is being raised by a person who is unable to discharge his parental responsibilities might not receive proper care.8

To permit termination of parental rights based on the “inability to discharge parental duties,” without identifying those duties or defining how they are measured, invites the same kinds of presumptions and stereotypes that the DOJ and HHS found violated the ADA in the Massachusetts case. Statutes should provide “sufficiently definite standards” so that applying the law “does not depend on private conceptions.”9

Private conceptions, presumptions, and stereotypes, however, allow a parent with a mental illness or intellectual disability to be stripped of this most fundamental right10 based on a concern that the child might not receive proper care. It is difficult to imagine that Illinois lawmakers would impose such a standard on persons without a mental illness or a developmental or intellectual disability.

As we celebrate the 25th anniversary of the Americans with Disabilities Act11 this summer, Illinois, Massachusetts and other states should remove disability references as a basis for terminating parental rights. People with mental illness and developmental disabilities should not have to wait another generation to keep their families intact. ■


Patti Werner is Associate General Counsel for Presence Health.

1. The name provided in the DOJ/HHS report of investigation, but her name and the names of family members are pseudonyms. <>.

2. Rosa’s Law, Pub. L. No. 111-256, 124 Stat. 2643, substituted the term intellectual disability for mental retardation in federal law. Illinois followed suit in PA 097-227.

3. See Adoption and Safe Families Act of 1997, 42 U.S.C. § 671(a)(15)(B). The Act amended the Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 500.

4. <> at page 12.

5. Mass. Gen. L. c 210 § 3 (c)(vii)( 2012) (allows for termination of parental rights based on a condition which is reasonably likely to continue for a prolonged, indeterminate period, such as alcohol or drug addiction, mental deficiency or mental illness, and the condition makes the parent or other person unlikely to provide minimally acceptable care of the child).

6. 750 ILCS 50/1(D)(p).

7. But see In re N.F., 533 N.E. 2nd 952, 956-57(1989) (Nash, J., dissenting)(urging consideration of equal protection claim despite waiver based on statute’s effect on persons with mental, but not physical disabilities).

8. In re R.C., 745 N.E. 2nd 1236, 1242 (2001) (internal quotations omitted).

9. People v. Molnar, 222 Ill. 2nd 495, 524 (2006) (statute survives vagueness challenge where it its prohibitions are sufficiently definite and provide sufficiently definite standards so that private conceptions do not drive its application).

10. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (recognizing the liberty interest in the 14th amendment included the right of the individual to marry, establish a home, and bring up children).

11. For information about the ADA’s 25th anniversary, see: <>.