The inclusion of disability as a condition for termination of parental rights

All 50 states and the District of Columbia have statutes outlining the grounds for terminating parental rights (TPR) in relation to child abuse and neglect. Although recent research has found that parents with disabilities are not more likely to maltreat their children than parents without disabilities (Glaun & Brown, 1999; Oyserman, Mowbray, Meares, & Firminger, 2000), studies have found very high rates of TPR of parents with disabilities (Accardo & Whitman, 1989). The objective of this study is to examine how states are including disability in their TPR statutes.

This study used legal document analysis, consisting of a comprehensive Boolean search of the state codes of the 50 states and District of Columbia (DC) relating to TPR, using the most recent state code available on Lexis-Nexis in August 2005. TPR and related statutes were searched for contemporary and historical disability related terms and their common cognates, such as: "mental," "disability," "handicap," and "incapacity." Two researchers independently conducted the searches, and the searches were reconciled. A code list was then developed to measure for inclusion of disability, preciseness, scope, use of language, and references to accessibility or fairness. Statutes were then reanalyzed, and groupings developed.

Thirty-seven states included disability-related grounds for termination of parental rights, while 14 states did not include disability language as grounds for termination. Many of these state codes used outdated terminology, imprecise definitions, and emphasized disability status rather than behavior. All of the 14 states that do not include disability in TPR grounds allowed for termination based on neglectful parental behavior that may be influenced by a disability.

The use of disability language in TPR statutes can put an undue focus on the condition of having a disability, rather than parenting behavior.

This paper recommends that states consider removing disability language from their statutes, as such language risks taking the emphasis away from the assessment based on parenting behavior.