Erica Anderson, Notes and Comments Chair, University of Cincinnati College of Law
“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.” This quote is taken directly from Justice Holmes opinion of the United States Supreme Court in Buck v. Bell in 1927 which held that “the welfare of society may be promoted . . . via the sterilization of mental defectives” and claimed that “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” Although the U.S. has taken strides to move past involuntary sterilization of people with mental disabilities, it has simply found a eugenics backdoor—the termination of parental rights (“TPR”). 
The overwhelming majority of the country still maintains the belief that people with mental disabilities are unfit to be parents and that “both they and their children are unmitigated drains on society.” Consequently, of the 94,300 parents with mental disabilities in the U.S., up to 80% of those parents lose custody of their children at some point in their lifetime.
These results do not match the evidence, however, as research demonstrates that of all categories of parents involved in TPR proceedings, parents with mental disabilities are typically compliant with the requirements of their reunification plans and have the “lowest incidence of previous legal problems.” Therefore, parents with disabilities are objectively the best candidates for reunification with their children. Yet, parents with mental disabilities are stripped of their parental rights just as often as parents suffering from substance-abuse disorders who are the “least likely to comply with the requirements of their reunification plan.”
This begs the question—if the goal behind child protective custody laws is always reunification when possible, then why are so many parents with disabilities losing parental rights of their children forever?
Although state laws traditionally regulate families, the Supreme Court has limited the state’s purview over family law by affirming that the Fourteenth Amendment guarantees a parent’s right to custody of their children. In Stanley v. Illinois, Justice White delivered the opinion of the court stating that “a parent’s right to ‘the companionship, care, custody, and management of his or her children . . . undeniably warrants deference and, absent a powerful countervailing interest, protection.’”
Occasionally, however, the fundamental right of family autonomy granted by the Constitution conflicts with the state’s “interest in preserving and promoting the welfare of the child.” The state, then, may exercise its parens patriae power to permanently terminate a parent’s rights to their child when evidence suggests parental abuse or neglect.
Federal laws typically require states to make “reasonable efforts” to preserve or reunify a family. Such laws are critical armor to parents with disabilities. Unfortunately, these laws do not require a state’s “reasonable efforts” be designed for the specific needs of a parents with disabilities nor do they provide any substantive guidance regarding what those efforts should look like. Furthermore, states may override the requirement for reasonable efforts to reunification if it can demonstrate that “reunification is not, and never will be, in the best interest of the child.” Consequently, reunification efforts often fail parents with disabilities, and as a result, these parents lose custody of their children forever. This is especially horrendous because unlike criminal proceedings, the Supreme Court has held that parents in TPR proceedings do not have a constitutional right to an attorney.
A. Child welfare laws
Notwithstanding the United States Constitution’s limitations on a state’s rights to “interfere with a person’s most basic decisions about family and parenthood,” almost all states have child custody laws, and 37 states have child welfare laws that are highly prejudicial to parents with disabilities. Specifically, many of these laws authorize the TPR “on the basis of the parent’s disability.” These state laws have been challenged constitutionally under both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment, but these challenges were ultimately unsuccessful.
Because TPR proceedings “employ imprecise standards that leave the determination unusually open to the subjective values of the judge,” the Supreme Court has granted states complete discretion to design their own statutory requirements and procedures for the TPR. Typically, these statutes involve a parental “unfitness” standard and/or a multi-factored “best interest of the child” test. Almost all statutes include a parent’s mental or psychiatric disability as a relevant factor to be considered by the court, and some statutes permit TPR because of the mere existence of a parent’s disability. Both “unfitness” standard statutes and “best interest of the child” test statutes have similar outcomes in practice; if a parent’s rights would be terminated under one standard, they would likely be terminated under the other standard, as well, and vice versa. 
B. Navigating the TPR process
Regardless of which standard a state follows, navigating the TPR process as a parent with a mental disability often inevitably results in termination. Unlike criminal proceedings in which a defendant only receives punishment after being proven guilty beyond a reasonable doubt, the consequence in TPR proceedings (the removal of a child) may occur right off the bat when a report of suspected abuse or neglect is made. After a report has been received, if the case is neither dismissed nor immediately adjudicated, then a child may be temporarily removed from a parent’s home until the parent is deemed fit or unfit for custody of the child. Thus, no evidence is necessary before the removal of a child.
Immediately after the potentially traumatizing involuntary removal, a child welfare agency begins the TPR process by setting up a hearing, and the parent must act quickly to prevent losing custody of their child forever. Yet, the challenges of the TPR process and involuntary child removal—high stress levels, changes in routine, and feelings of loss of control—are common examples of factors that often contribute to worsening the symptoms of numerous mental disabilities such as autism and anxiety. Consequently, parents with disabilities are expected to demonstrate their fitness as a parent while being traumatized by the decision makers.
It is nearly impossible for a parent with mental disabilities to advocate for their fitness as a parent while falling into the gap between the mental health system and the child welfare system. The mental health system “treats the individual without focusing on his or her parenting role, and the child welfare system  judges the individual’s capacity to quickly meet the needs of his or her children.”
Because these two systems are completely separate, and child welfare agencies do not provide mental health services, parents with disabilities must be referred to external mental health agencies in the area. Unfortunately, referrals, scheduling appointments, and gaining trust in a mental health specialist (amongst other problems) all take a lengthy amount of time and do not cater to the strict timeline of the TPR process. It can sometimes take months, or even years, to be taken off a waitlist for mental health treatment. Yet under federal law, states must seek the TPR after a child has been in foster care for a mere 15 months. Consequently, by the time parents receive the mental health services that they need, they may have already permanently lost their children.
Moreover, many state statutes permit courts to simply bypass services necessary for parents with disabilities to be reunited with their children by assuming parents with mental disabilities cannot benefit from those services. Further, states in TPR proceedings merely consider parents as individuals instead of viewing parenting through the lens of the social model. When considering parents as individuals, states are only reviewing the capacities of the parent as an individual, whereas a review of parents under the social model would consider parenting “as much a function of schools, community supports, families, and neighbors, and even social services, as it is of the characteristics of the individual.” Thus, under the social model, a parent may be deemed fit with the help of their neighbor, but under the individual model, a parent is unfit unless they can take care of a child completely on their own.
C. The Americans with Disabilities Act
“Let the shameful wall of exclusion finally come tumbling down!” exclaimed President George H. W. Bush as he signed the Americans with Disabilities Act (“ADA”) into law. Title II of the ADA prohibits public services, such as child welfare agencies, from being denied to those with disabilities. Under Title II, child welfare agencies and courts must not only ensure that people with disabilities have an equal opportunity to participate in services, programs, and activities, but agencies and courts must also provide “reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination.”
One of the ADA’s most basic requirements is individualized treatment. Namely, child welfare agencies and courts must accommodate people with disabilities on a case-by-case basis. In addition, these entities are prohibited from acting based on stereotypes and generalizations about people with disabilities. In other words, accommodations may not be denied to one person with a disability merely because others with that same disability do not need that same accommodation. However, the ADA does allow for exceptions in cases in which providing an accommodation would fundamentally alter the nature of the services offered, cause an undue financial or administrative burden, or result in a significant risk to the health or safety of others.
States commonly argue that mental health treatment—the accommodation most parents with mental disabilities need—placed an undue burden on the state. To determine whether an undue burden exists, courts often analyze the overall cost of the accommodation in light of the entire agency and the operation and nature of the agency.
D. The ADA as a Defense
Under the ADA, parents may argue that their parental rights would not have been terminated if they had been provided with accommodations designed to meet their individualized needs. Although the ADA is often the only protection provided to parents at risk of losing parental rights to their children in TPA proceedings, the ADA is seldom exercised in TPR proceedings at all. In fact, courts have completely rejected the ADA as a defense in TPR proceedings for a myriad of reasons including the following:
TPR proceedings are not a “service, program or activity” within the meaning of the ADA,
Title II contemplates only affirmative action on the part of the injured party rather than defenses against a legal action by a public entity,
Allowing a parent to assert a violation of the ADA [means] that the child’s rights will be compromised,
A parent must raise an ADA violation prior to the TPR trial, not during.
Even the minority of courts which have held that the ADA is a proper defense in TPR proceedings have failed to appropriately apply the ADA by holding “sufficient reasonable modifications in services were made to accommodate parents’ disabilities, and therefore, no ADA violations occurred.”
The ADA should restrict states from passing legislation that permits TPR to occur merely because of a parent’s disability status. However, because numerous states possess such legislation, when parents with disabilities raise claims of an ADA violation, courts can essentially bury their heads in the sand while finding the ADA inapplicable.
A. The ADA should apply to TPR proceedings and reunification services
First, the argument that “TPR proceedings are not a ‘service, program or activity’ within the meaning of the ADA” is almost laughable. The termination process is administered by the judicial system, and reunification services and programs are administered by state agencies. In fact, the ADA’s legislative history establishes clear evidence that it applies to the child welfare system and dependency courts. During a congressional hearing regarding the ADA’s passage, Justin Dart, Jr., whom the disabled community refers to as the “Father of the ADA,” testified to the following:
We have clients whose children have been taken away from them and told to get parent information, but have no place to go because the services are not accessible. What chance do they ever have to get their children back? 
Another witness at the congressional hearing stated,
These discriminatory policies and practices affect people with disabilities in every aspect of their lives . . . [including] securing custody of their children.
Thus, to deny that the ADA is applicable to TPR proceedings would be to ignore the legislative purpose of the ADA.
Second, the argument that the ADA does not apply to TPR proceedings because Title II contemplates only affirmative action on the part of the injured party rather than defenses against a legal action by a public entity is majorly flawed. Raising an ADA violation during a TPR proceeding is not a parent’s attempt to litigate that issue on the spot within family court, but rather an attack on the agency’s evidence that the parent is unfit. If an agency is attempting to irreversibly revoke a parent’s custody of their child, it must do so justly. Thus, an agency cannot argue that a parent with a disability is incapable of properly caring for their child while simultaneously denying legally required accommodations that would make parenting possible.
Third, contrary to the beliefs of numerous state courts, a child’s rights will not be compromised by a parent asserting an ADA violation. The focus of a family court proceeding is undoubtedly always on the child and their best interest even when an ADA violation against the parent is at issue. As such,
[a] parent’s evidentiary attack should not be viewed as necessarily contrary to the interests and rights of a child; if a parent has been discriminated against, and the parent-child relationship is severed, in part or in whole, because of this discriminatory treatment, the severance has drastic, and potentially harmful consequences for the child.
Lastly, opinions by courts that parents with disabilities must raise ADA violation claims prior to their TPR trial is incredibly problematic: raising an ADA violation prior to a TPR trial is very premature. A parent cannot possibly be expected to know how an agency will accommodate their disabilities after the reunification plan is decided upon. Additionally, prohibiting ADA violation claims after the creation of a reunification plan permits, and arguably encourages, individualized accommodations to be denied.
For example, while serving as a law guardian, Dale Margolin Cecka describes an instance where a New York agency had removed a child from a mother with schizophrenia. The agency then designed a reunification plan in which is promised referrals to parenting classes and housing assistance. For the next five years, while the child was in foster care, the mother was left completely on her own without follow-ups from the agency. Yet, the mother never missed a single visit with her daughter, she attended therapy and parenting classes, and had successfully managed to live on her own. During this time, she had even been granted overnight visits with her daughter in which no problems ever arose. However, the mother could not maintain a permanent housing situation, due to the agency failing to accommodate the mother’s housing needs, and her parental rights were terminated. If the agency would have referred the mother to public housing or discussed assisted living options and plans with her, the family would likely have been reunited without major issues.
B. The ADA should be a plausible defense against state statutes which allow the TPR merely based upon disability status
Statutes that allow the TPR based upon a parent’s disability status alone explicitly discriminate against people with disabilities. Parental rights decisions should not be based upon disability status, but merely upon parental behavior. Research demonstrates that parenting ability varies dramatically amongst people with disabilities. Thus, it is unfair to categorize all parents with disabilities into one box as being “unfit.” Furthermore, the presence of a disability can actually be a parenting advantage to some people. For example, one autistic mother stated that she can better parent her autistic nine year old son because they share a condition and because she can better understand her son’s needs. Additionally, doctors have shared that having autism can oftentimes be an asset to parenting because of the need for structure, routine, and predictability—all things which help children thrive.
C. The states’ ADA defenses are not evidentially supported
The ADA permits exceptions to its prohibition of discrimination against people with disabilities if accommodations would require a fundamental alteration to the nature of the program or service or if the accommodations would impose an “undue burden” upon an agency.
States often argue that long-term mental health treatment presents an undue burden on states because mental health treatment is extremely expensive. Although it is true that mental health treatment is expensive and inaccessible, such an argument should fail the undue burden test as reunification services are almost always cheaper than the cost of foster care through the age of 18, or sometimes 21. A New York court held that the state was required under the ADA to continue to provide home health treatment to plaintiffs rather than moving them to a nursing home “because the state had not shown that the cost of home care was unreasonable with respect to the system as a whole.” Because in TPR cases, the initial cost of reunification services is later offset by the future savings of preventing foster care costs, states cannot argue long-term mental health treatment for the parents will an undue financial burden.
Parents with disabilities face enormous societal biases concerning their parental fitness. Although the U.S. no longer enforces involuntary sterilization upon parents with disabilities, it has evolved to removing the parents’ children after birth, often resulting in disastrous consequences for all involved.
It is true that many parents with disabilities cannot care for children completely on their own, but have the potential to be wonderful parents with accommodations. When a state terminates parental rights without providing individualized accommodations and a sufficient amount of time for success, a clear ADA violation has occurred, and parents with disabilities should be able to raise the violation to demonstrate they would be fit parents if the state abided by the law.
 Buck v. Bell, 274 U.S. 200, 205 (1927).
 Id. (citing Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905)).
 Michael Lanci, In The Child’s Best Interests? Rethinking Consideration of Physical Disability in Child Custody Disputes, 118 Colum. L. Rev., 875, 881 (2018).
 Leslie Francis, Maintaining the Legal Status of People With Intellectual Disabilities As Parents: The ADA And The CRPD, 57 Fam Court Rev., 21, 21 (Jan. 2019).
 Nat’l Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children 43 (2012).
 Charisa Smith, Making Good on an Historical Federal Precedent: Americans with Disabilities Act (ADA) Claims and the Termination of Parental Rights of Parents with Mental Disabilities, 18 QUINNIPIAC HEALTH L. J. 191, 204 (2015).
 Jude T. Pannell, Unaccommodated: Parents with Mental Disabilities in Iowa’s Child Welfare System and the Americans With Disabilities Act, 59 Drake L. R., 1165, 1173 (2010).
 See Recommending Reunification, Missouri Dep’t of Soc. Ser., https://dssmanuals.mo.gov/child-welfare-manual/10-10/ (last visited Oct. 3, 2021).
 Troxel v. Granville, 530 U.S. 57, 65 (2000).
 405 U.S. 645, 651 (1972)(emphasis added).
 Santosky v. Kramer, 455 U.S. 745 (1982).
 See Parham v. J.R. 442 U.S. 584, 603 (1979) (stating “[A] state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.”).
 Pannell, supra note 7, at 1167.
 Rocking the Cradle, Footnote 353; June T. Pannell, Unaccommodated: Parents with Mental Disabilities in Iowa’s Child Welfare System and the Americans with Disabilities Act, 59 Drake L. Rev., 1165, 1167 (2011).
 Susan Kerr, The Application of the Americans with Disabilities Act to the Termination of the Parental Rights of Individuals with Mental Disabilities, 16 J. Contemp. Health L. & Pol’y, 387, 402 (2000).
 Id. at 354.
 Lassiter v. Department of Social Services, 452 U.S. 18 (1981).
 National Council on Disability, Chapter 16: Need for Legislation to Ensure the Rights of Parents with Disabilities and Their Families, https://ncd.gov/publications/2012/Sep272012/Ch16 (last visited Sept. 1, 2021).
 See Lassiter, 452 U.S. 18.
 Santosky, 455 U.S. at 762.
 Kerr, supra note 16, at 401.
 Chris Watkins, Beyond Status: The Americans with Disabilities Act and the Parental Rights of People Labeled Developmentally Disabled or Mentally Retarted, 83 Calif. L. Rev., 1415, 1472 (1995).
 Termination of Parental Rights, Law Shelf, https://lawshelf.com/coursewarecontentview/termination-of-parental-rights/ (last visited September 20, 2021).
 Kerr, supra note 16, at 402.
 Theresa Glennon, Walking with Them: Advocating for Parents with Mental Illnesses in the Child Welfare System, 12 Temp. Pol.. & Civ. Rts. L. Rev., 273, 295 (2003).
 Pannell, supra note 7, at 1174.
 E.g. Theoharis C Theoharides and Maria Kavalioti, Effect of stress on learning and motivation relevance to autism spectrum disorder, 33 International J. of Immunopathology and Pharmacology, 1, 1 (2019) (stating patients with ASD have aggravated responses to stress); Kim Davis, M.S., What Triggers Anxiety for an Individual with ASD?, Indiana Resource Center for Autism, https://www.iidc.indiana.edu/irca/articles/what-triggers-anxiety-for-an-individual-with-asd.html (last visited Oct. 4, 2021) (stating routine changes can negatively impact individuals with ASD); Am. Fam. Physician, Anxiety and Panic: Getting Control over Your Feelings, Am. Aca. Family Physicians (Oct. 15, 2006) https://www.aafp.org/afp/2006/1015/p1393.html.
 Glennon, supra note 29, at 296.
 Id. at 283.
 See 12 Things I Wish I Knew Before I Became A Therapist, Careers in Psychology, https://careersinpsychology.org/12-things-wish-knew-before-became-therapist/ (last visited Oct. 4, 2021) (stating it can take several months to years to gain trust in a therapist).
 Dennis Campbell, One in four waiting three months or more for mental health help, The Guardian (Oct. 6, 2020) https://www.theguardian.com/society/2020/oct/07/one-in-four-waiting-three-months-or-more-for-mental-health-help (stating one in four individuals are waiting several months and even years to receive mental health treatment).
 42 U.S.C. § 675(5)(E) (2006).
 See Ala. Code § 12–15-312 (c)(1)(e); Alaska Stat. Ann. § 47.10.086(c)(5); Ariz. Rev. Stat. Ann. § 8–846(D)(1)(b) (2018) (stating reasonable efforts for reunification are not required if services were provided for 12 months without resulting in improvement); Ky. Rev. Stat. Ann. § 610.127(6) (stating the same as Arizona).
 Francis, supra note 4, at 26.
 Americans with Disabilities Act Turns 30, UMKC Institute for Human Development, https://ihd.umkc.edu/americans-with-disabilities-act-30th-anniversary/ (last visited Sept. 9, 2021).
 42 U.S.C. 12131.
 28 C.F.R. § 35.130(b)(7)(i) (2019).
 PGA Tour, Inc. v. Martin, 532 U.S. 661, 691 (2001).
 Powell, supra note 14, at 176 (citing to 28 C.F.R. § 35.130(b) (2018)).
 Id. (citing to 28 C.F.R. 36.302, 36.303 (2019)).
 Dale Margolin Cecka, No Chance to Prove Themselves: The Rights of Mentally Disabled Parents Under the Americans with Disabilities Act and State Law, 15 Va. J. Soc. Pol’y & L. 112, 139 (2007).
 In re C.M., 996 S.W.2d 269, 269-70 (Tex. App. Houston 1st Dist. 1999).
 Kerr, supra note 16, at 407.
 Nat’l Council on Disability, supra note 5, at 93; see also In re Adoption of Gregory, 747 N.E.2d, 120, 125, (Mass. 2001).
 Id.; see also In re Doe, 60 P.3d 285, 293 (Haw. 2002).
 Dale Margolin Cecka, No Chance to Prove Themselves: The Rights of Mentally Disabled Parents Under the Americans with Disabilities Act and State Law, 15 Va. J. Soc. Pol’y & L. 112, 145 (2007).
 Id. at 128.
 Nat’l Council on Disability, supra note 5, at 94.
 See In re Welfare of A.J.R., 78 Wash. App. 222, 230 (1995).
 Cecka, supra note 53, at 123 (citing M.C. v. Department of Children and Families, 750 So.2d 705, 706 (Fla. Dist. Ct. App. 2000)).
 Id. at 125.
 Id. at 113.
 Id. at 128.
 Id. at 113.
 Id. at 128.
 Chris Watkins, Beyond Status: The Americans with Disabilities Act and the Parental Rights of People Labeled Developmentally Disabled or Mentally Retarded, 83 Calif. L. Rev., 1415, 1472 (1995).
 Sarah Deweerdt, The unexpected plus of parenting with autism, Spectrum News (May 16, 2020), https://www.spectrumnews.org/features/deep-dive/unexpected-plus-parenting-autism/.
 See Hillary Hurst Bush, PhD., AsperDad: Growing Up With a Parent on the Autism Spectrum (Maybe), https://www.mghclaycenter.org/parenting-concerns/families/asperdad-growing-up-with-a-parent-on-the-autism-spectrum-maybe/ (last visited Sept. 27, 2020).
 § 35.130(b)(7).
 Helen L. v. Didario, 46 F.3d 325, 338 (3rd Cir. 1995).
 Cecka, supra note 53, at 139.
 Id. (citing Sanon v. Wing, 2000 N.Y. Misc. LEXIS 139 (N.Y. Sup. Ct. 2000).