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Rights groups press for law protecting disabled parents in CINA cases

Bill would require clear and convincing evidence from state, guard against ‘outdated assumptions,’ supporters say

ANNAPOLIS – Advocates for the disabled pressed Tuesday for passage of a law to ensure a parent’s disability would not count against him or her in child in need of assistance cases without “clear and convincing” evidence that he or she cannot, even with supportive aids, provide proper care to the youngster due to the disability.

Current law permits disability to be a consideration in CINA cases if merely sufficient evidence exists in the record showing that the disability prevents the parent from acting in the child’s best interests. In no case may a child be deemed a CINA and parental rights terminated solely because of the parent’s disability – but that provides little protection in practice, said Virginia Knowlton Marcus, executive director of the Maryland Disability Law Center.

“The legal system is not protecting the rights of people with disabilities who have children,” Marcus told the Senate Judicial Proceedings Committee. “This bias is rampant in our society and rampant in family-law decision-making.”

The legislation is intended to strengthen parental safeguards by requiring child protective services agencies to present clear and convincing evidence that the parent’s disability prevents him or her from acting in the child’s best interests. The proposed measure, Senate Bill 765, would enable the parent to rebut the evidence by showing he or she can meet the child’s needs with supportive parenting services.

A judge who agrees with the agency would have to state specifically in writing the basis for the finding and why supportive devices would not accommodate the parent’s childcare needs.

The agency’s burden of proof and the judge’s obligation to issue a written ruling ensure that CINA decisions are based on a parent’s actual competence to care for children and not on “unfounded assumptions” and “speculation about future harms” based on the disability, Marcus said.

But Sen. H. Wayne Norman Jr., R-Harford and Cecil, questioned the need for SB765 in light of existing federal and state statutes prohibiting discrimination against the disabled.

Marcus responded that the legislation’s demands on agencies and judges are needed because outdated assumptions about disabled parents persist despite those laws.

“The courts do need that guidance, that specific statutory guidance” so they do not rely on “projections about future harm because of the parent’s disability,” Marcus said.

SB765 would also protect prospective adoptive parents who are disabled by ensuring they have the chance to show they can act in the child’s best interests with the assistance of supportive parenting services. An agency denying the adoption request would have to state in writing the basis for the denial and why the provision of supportive services would not assuage its concerns about the parents’ ability.

Sen. Jamin B. “Jamie” Raskin, the bill’s chief sponsor, said that too often a parent’s disability is “effectively used against them” in CINA cases.

“A disability should not count against someone so long as they can make the accommodations to deal with their disability,” said Raskin, D-Montgomery. “We don’t want somebody’s arbitrary characteristics beyond their control to be used against them.”

The National Federation of the Blind also submitted testimony in favor of the bill.

SB765 has not been cross-filed in the House of Delegates.