by Sharon Krevor-Weisbaum
From the Editor: Sharon Krevor-Weisbaum is one of the most tenacious, committed, and articulate attorneys in the country when it comes to issues of parental rights for people who are blind. We are blessed to have her as one of the people who work on our cases from Brown, Goldstein & Levy. Here is what she said on the afternoon of Wednesday, July 8, 2015, at the seventy-fifth annual convention of the National Federation of the Blind:
Good afternoon, proud and dedicated members of the National Federation of the Blind. Thank you, President Riccobono and Dr. Maurer, for giving me the honor of speaking to this incredible audience. I feel passionate about the issue that I will be talking about and saddened and angry about what I have seen. I speak to you today from the perspective of an attorney and a parent.
Let me start by saying that I am tired of hearing judges, caseworkers, psychologists, and lawyers ask whether my client is capable of taking care of his child merely because he is blind. This question is loaded with societal biases and incorrect assumptions regarding the capabilities of blind people. Those asking this question generally hold a tremendous amount of power and are wreaking havoc on blind parents and their children. When this question is asked and discriminatory decisions are made without any underlying factual basis, we have no choice but to push back on every possible front, including legal advocacy in the courtroom, legislative initiatives in our state capitols, in Congress, and continuous education with state government executives and the judiciary leadership.
It should not surprise you when I tell you there is a constitutional right for parents to be able to raise their own children. Although at times this fundamental liberty interest must be balanced against the health and safety of a child, a parent with a disability should never be deprived of her child because of her disability. Sadly, too many times this has been the outcome. Let me tell you about some of the people I have had the privilege of representing because of the advocacy efforts of the NFB.
My client was a young single mom with two children. Life was difficult for my client, but not because she was blind. When she found herself struggling, she contacted her local department of social services for assistance. She thought this was a good idea, and many people might have agreed with her at the time. Although the department initially provided her with the support she asked for, the worker assigned to her case could not fathom how this blind mother could take care of her two young children by herself. The caseworker grilled my client with question after question about how she could be certain that her children would be safe. These questions put my client totally on the defensive and ultimately resulted in her young children living in foster care for two very long and painful years. Those with the power could not conceive of how my client could take care of her children.
Thanks to the NFB and the advocacy and education that we provided to the caseworkers, lawyers, and judge, these two beautiful children are back with their mom, but only after hundreds of hours of visits where a sighted supervisor was watching my client's every move and scoring her on her parenting abilities. Had I as a young parent had someone watching me every time I bathed my children, prepared their meals, played with them, and put them to sleep and then scrutinized how I did each of these tasks with a scorecard and expected me to perform with complete perfection, I could never have passed this impossible test. But this became the expectation and requirement of those who held the power. Although this mother is strong and her children are thriving now, the painful absence of her children for those two years will always be a cruel memory.
My client Pedro wanted his three-year-old daughter to come and live with him after her mother could no longer take care of her. The department of social services had to decide whether the child could move out of state to live with her dad. As is the case for any child involved in the social service system, a caseworker was asked to do a home study of Pedro's apartment. The caseworker's report was glowing. She described Pedro's excellent skills in housekeeping and his complete independence as a professional; she highlighted his superb blindness skills in mobility and use of technology. As I read the detailed report, I thought, how refreshing that the biases that one generally sees are not here, that is, until I got to the last paragraph of the home study report. The caseworker concludes her glowing report with something close to the following: because this father is blind, his young daughter will not be able to articulate whether she is being abused—therefore, placement denied.
Pedro was furious and called the NFB; he spoke to Dr. M, who then called me. It took several months of legal advocacy to convince the department that its report was discriminatory and must be changed. Finally, they sent the same caseworker back for another home visit. Her second report was identical, word for word, with one change—the worker deleted the last sentence about the three-year-old not being able to report abuse and instead wrote—placement approved.
Pedro's beautiful little one now lives with her father. Pedro is here in this hall and looks forward to meeting you this week at his first NFB convention. Pedro: could you please stand up so that we can salute your advocacy and determination to make a home for your little girl and stand up for your rights as a parent; could you stand up?
Let me also tell you about another client and the infuriating and discriminatory actions that are taking place as I stand here today. In a private custody battle, a judge for the past fourteen months has allowed my client (a blind father) to be with his two little children only if there is a sighted person present. There is no factual basis for this requirement. It is based only on the judge's fear that somehow it would not be safe for the children to be alone with their dad without a sighted person present. This requirement is incredibly insulting and demeaning, is unnecessarily expensive, and serves to limit his time with his children when he cannot find someone to be present. We are vigorously fighting this requirement, but the legal system moves slowly and, in these types of cases, very unfairly.
And all of you know about the family in Missouri whose baby was taken from them at birth because people did not think this blind couple could parent their infant safely. And what led to this: a hospital employee who thought that the mom was having difficulty breastfeeding her newborn. How could this be? I personally remember crying all night long in the hospital the first time I tried to breastfeed my first child. No one called in protective services for this sighted mom; instead they brought in people to help me. Our friends in Missouri instead were told that either they needed to have 24/7 care at home or the child would have to go to foster care. That's what happened for some fifty-seven days until advocates could convince the authorities that this injustice had to stop.
It is my goal to help change the culture so that, when I walk into a meeting with government officials with a blind mom or into a courtroom with a blind dad, those in charge are not focused on the question of how is this possible but rather the truth—that blind parents can parent as well or better than anyone else.
My clients have reminded me that all parents rely on some support system to provide for their children effectively. If I ever thought that I had raised my children without the support of an army of others, I would be fooling myself. Part of the education that judges and caseworkers need is a reminder of this truth. An occupational therapist from an organization called Through the Looking Glass often reminds me that it is imperative that a parent's capabilities be considered in the context of the supports he or she uses and that there is absolutely nothing wrong if a parent chooses to have supports in place to do certain parenting tasks. All that should matter is that the parent is able with or without supports to provide what the children need. The problem is when others decide what one needs. It is appalling that someone else can decide when a blind parent needs sighted assistance.
The NFB has put together some incredibly valuable documents and videos that I have been providing to courts, caseworkers, and forensic evaluators. The publication Parents without Sight and President Riccobono's video about a day at the playground with his two little girls are impressive and incredibly helpful, but I ask you to create more. I need to be able to show how blind parents work with their children on homework, how blind parents measure out medicine when their children are sick, how you change diapers or travel on a city subway with your kids, and how you and your children do all the day-to-day fun things that you do every day. I need to show how you drop your kids off at day care and what you do in your jobs. I know it may sound lousy or even insulting for me to ask for this, but it is the best way to help educate those who are asking these questions. And this time you can control what people think about your capabilities.
There are a number of reasons why these cases are so difficult and why we must fight the current situation on several fronts. A large majority of states expressly permit disability to be considered when determining whether parental rights should be terminated. Unfortunately, in many cases the focus of the statute is the disability rather than the behavior or actions of the parent. It is up to the advocates to ensure that those proposing termination have the burden of proving that there is actual harm or a substantial risk of harm to the health and safety of the child because of the parent's actions before termination can occur. It is also critical to make sure that any determination must take into account a parent's abilities, with the adaptive services and support services he or she uses.
In child custody disputes courts must make decisions based on the best interests of the child. Unfortunately, many state laws permit the mental and physical health of a parent to be used as a proper factor to consider when determining custody without also demanding a showing of harm to the child because custody is denied.
And, when it comes to state agencies that have the responsibility of ensuring that every effort is made to maintain children with their parents, we must push hard to make sure that a parent's disability does not diminish these efforts. The Department of Justice recently issued a findings letter against the Massachusetts Department of Social Services where it said that the department violated the ADA because it failed to provide assistance to a parent with a disability to help her keep her child—something that the agency readily does for parents without a disability. Contrary to this recent DOJ letter, however, courts have routinely held that termination proceedings are not governed by the ADA, and, similarly, nor are private custody matters. Notwithstanding, I believe that the ADA can be a valuable lever with which to push state agencies and perhaps even judges to support rather than hinder the rights of parents with disabilities.
The American Psychological Association seems to understand the biases that are contributing to the injustices that we see. This national organization has issued guidelines that call for psychologists to remain aware of their own and others' biases when completing evaluations. The guidelines remind evaluators to recognize that people with disabilities have a right to a family and that many adults with various disabilities can and do effectively parent children.
The guidelines also recognize that a functional evaluation is critical because it ensures that the accommodations the person uses in his or her daily life are understood as part of the evaluation. Just last week we sent these guidelines to a court-appointed forensic evaluator who obviously had not done any of her homework before interviewing my blind client. Her questions showed absolutely no knowledge of blindness or the skills that blind people use. It appeared that her starting point was that my client could not possibly take care of his children without a sighted person present and assisting.
In the current climate the key to successfully defending against termination or supporting a parent in a custody dispute is to educate the decision-makers about the parent's functional abilities. One way to do this is by bringing in an expert who understands the nature of the disability, the accommodations or supports that the parent uses, and who clearly explains why the children will remain healthy and safe in their parents' care.
Everyone here knows that there are thousands and thousands of blind parents in this country who are successfully taking care of their children. However, when a judge asks me what that number is, I am unable to give an answer. I would like to work with the NFB to see if there is any way to figure this out. Judges and caseworkers are asking this question. For those researchers out there, although we have a few excellent research findings that demonstrate that blind mothers are just as capable of meeting their infants' needs as sighted mothers, that there are no differences in the emotional state of children raised by sighted versus blind parents, and in fact that children of blind parents may be more adaptable and have more positive peer interactions, that a parent's disability is not a predictor of problems or difficulties for children; and that separating a child from a parent is traumatic and detrimental, we still need more academic research to prove that the biased assumptions that many people are making are just plain wrong. I look to those in the audience who are connected with researchers to figure out how we can broaden both pieces of this scholarly work to help change the culture.
On the legislative front, states must put in place protections for parents with disabilities in both their child welfare and child custody statutes. Legislation must include a nondiscrimination statement; any court- or government-ordered evaluations must be done by experienced evaluators who understand the accommodations and adaptations that a parent with a disability uses; and evaluators should be required to certify that they are complying with the 2012 American Psychological Association Guidelines for Assessment of and Intervention with Persons with Disabilities. All family court professionals should receive training on how parents with disabilities parent. And, most important, statutes must require clear proof of a nexus between a parent's disability and harm to a child before an adverse action can be taken against a parent with a disability. And judges should be required to explain their reasoning and demonstrate the absence of bias through the issuance of a written ruling whenever disability is a basis for loss of custody or termination of parental rights. Congress should also take steps to protect parents with disabilities by adding specific protections for parents with disabilities by requiring that child welfare agencies provide accommodations to parents with disabilities as part of their efforts to prevent removal of a child from his family home or when providing reunification services.
Additionally, courts should give deference to the Department of Justice's interpretation of Title II and hold that the ADA applies to child welfare matters, including termination of parental rights. To ensure this occurs, the DOJ and HHS [Health and Human Services] should promulgate guidelines or regulations specifying that the ADA applies in the child welfare context and clarifying the legal obligations of child welfare agencies and the courts.
As the Supreme Court of California so wisely stated when considering the rights of a parent with significant physical disabilities, the parent-child relationship "lies in the ethical, emotional, and intellectual guidance the parent gives to the child through his formative years, and often beyond." It is our job to convince the court and others that it is the capabilities of the parent, not the disability itself, that are relevant.I look forward to working with you on these important and profound issues. Thank you for the wisdom you have taught me and the confidence that you have in working with me. I am honored to represent you.