Custody Rights of Parents with Disabilities

Illinois laws and agency policies put parents with disabilities on the defensive in custody cases

Everyone wants to see children living in caring, nurturing homes, but it is clear that both the Department of Children and Family Services (DCFS), the agency responsible for ensuring the safety of children in the State of Illinois, and the Illinois courts treat individuals with mental illness and developmental disabilities differently than other parents in the child protection system.

Equip for Equality represents parents with mental and developmental disabilities to ensure their fundamental right to raise, educate and see to the well-being of their own children. Often individuals lose custody of their children because they fall victim to rulings based solely on their disabilities. Parents with disabilities may be determined to have neglected their children if they, for instance, have not provided an "adequate care plan" when the children are placed in the care of another individual.

This is precisely what happened to "Mary," one of Equip for Equality's clients. Mary needed inpatient treatment for her depression, and, in order to receive it, she did what many parents do: she left her children in the care of a trusted friend until she could return home. In her absence and unbeknownst to Mary, the friend had arranged for alternative childcare, putting them in the care of a convicted sex offender. When the children returned home one day, they said that they felt "uncomfortable" with the man. The friend alerted DCFS.

There are things that all individuals, whether they have disabilities or not, should know about the State of Illinois child protection system. DCFS holds tremendous power over the fates of families - which can be radically altered by something as simple as an anonymous call to the agency's hot-line - and yet DCFS provides little recourse for parents with disabilities to equitably address the process or defend against adverse rulings.

DCFS is mandated by statute to investigate all allegations of abuse and neglect. These investigations are carried out by caseworkers from the Department of Child Protection (DCP). A DCP worker followed up on Mary's case and requested to see a formal plan indicating who was caring for the children while Mary was away. Of course, she and her friend had not written a formalized plan, and the friend had no desire to speak with DCFS about the allegations. The children were promptly placed into foster care while Mary was still in treatment.

Being investigated by DCFS for child abuse or neglect is a stressful and traumatic time for a family. DCFS provides a "diversion" program for parties that wish to avoid the additional trauma of juvenile court. In the diversion program, agency develops what is called a "safety plan." Although entirely developed by the agency, DCFS provides no monitoring of the plan or support services to the parent or appointed guardian.

Some safety plans require a legal change of custody that occurs in minor guardianship court. While the parent can award custody to a relative by signing a voluntary consent, the court will not return the child to the parent if the parent withdraws the consent or does not fulfill the safety plan. If the parent requests to have his/her child returned home, the guardianship court will hold a hearing to determine the "best interests" of the child. While parental rights have not been terminated, the hearing places the parent and the "guardian" on almost equal footing. Since DCFS is no longer in charge of the custody arrangement and takes no responsibility for its suggestions as to custody, diversion programs provide no due process protection for the parents.

Equip for Equality has found what appears to be an inordinately large number of safety plans initiated on cases involving parents with disabilities, cases that have no apparent statutory or factual basis for removing children from their parents. Part of the reason for the inequity lies in the laws governing court decisions.

The Juvenile Court Act defines mental illness and developmental disability so broadly that it includes all mental illnesses and developmental disabilities regardless of severity. In addition, key phrases - such as "inability to discharge parental responsibilities [that] extend beyond a reasonable time period" - are so unclear as to make them applicable to almost any parent/child relationship before the court. Several cases in Illinois have deemed parents unfit to discharge parental responsibility due primarily to a diagnosis of mental illness or developmental disability without regard to the natural bond of the parent or the potential ability of the parent to fulfill his or her obligations as caretaker.

In addition to finding court bias against people with disabilities, Equip for Equality and other civil rights organizations have criticized safety plans as only ostensibly voluntary. Parents and guardians enter these plans without understanding that they will rarely be provided any supports, and that the courts frequently remove the child from the family's custody without providing any specified date of return or tasks for said return. Any entry into a voluntary safety plan should be done with the consultation of an attorney.

When Mary was discharged from her treatment program, DCFS told her she had to go to juvenile court to rebut the allegations of neglect; the allegations were based on her not having an adequate care plan. While the case was pending - it was delayed for over nine months - DCFS allowed Mary one hour of supervised visitation with her children each week.

After nine months, the neglect charges were finally "substantiated," and DCFS provided Mary with a service plan, which outlined the services and tasks she must complete to regain custody of her children. The Thresholds Mother's Project assessed her situation and made recommendations for the services that she and her children needed in order to be reunited. Mary pursued these services and tasks faithfully, but, no matter how much she accomplished, she seemed no closer to having her children returned.

Mary contacted Equip for Equality because she felt that she was doing everything that was being asked of her and she was no closer to getting her children returned to her because of her mental illness. Equip for Equality agreed to take the case. After contracting a variety of experts to articulate the steps Mary needed to take towards regaining custody of her children, Equip for Equality started filing motion for unsupervised day visits, unsupervised overnight visitation, and finally return home. This summer, Mary was reunited with her children.

It is imperative that a parent has full knowledge of the juvenile court system at each stage of the process and that there be adequate representation to establish those rights. Equip for Equality has been working with other advocacy groups to modify how parents with mental illness and developmental disabilities are treated in juvenile court so that children can be returned to their parents in safe and caring homes with proper supports in the community. Equip for Equality continues to represent individuals who have lost custody of their children based solely on their disability and not their ability to parent.

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