Massachusetts was wrong to take custody of intellectually disabled mom's 2-day-old daughter

Associated Press | Article by: PHILIP MARCELO | Feb 7, 2015

BOSTON — She was 19, a brand-new mother with a developmental disability. Two days after giving birth to her daughter, the state took the infant away and placed her in foster care.

Massachusetts child welfare officials contend the young woman couldn't properly care for a newborn and insist they acted in the child's best interests. But the federal government disagrees: It says the state violated her civil rights by discriminating against her because of her disability.

In a new report, the Justice Department and the U.S. Department of Health and Human Services say the state Department of Children and Families — which has moved to terminate the mother's parental rights — needs to compensate her and give her a chance to prove she can care for her daughter, or it could face a federal lawsuit.

The National Council on Disability, an independent federal agency advising the White House and Congress, says the case points up a growing problem: states needlessly taking custody of the children of disabled parents.

"Parents with disabilities are suffering significant discrimination," said Robyn Powell, an attorney for the council. "What happened to this mother is very common ... States are removing these children for the sole reason of their parents having a disability."

Now 21, and identified in the federal report only by the pseudonym "Sara Gordon," the young woman's ordeal began as she was still recovering from childbirth in November 2012.

Federal authorities describe her as having a "mild intellectual disability" that makes it difficult for her to read and follow verbal instructions. They say she requires "repetition, hands-on instruction and frequency" to learn new things such as how to feed a baby and change diapers.

"DCF staff assumed that Ms. Gordon was unable to learn how to safely care for her daughter because of her disability, and, therefore, denied her the opportunity to receive meaningful assistance," said the two federal agencies, which conducted a joint civil rights investigation.

Their 26-page report, dated Jan. 29, says Massachusetts should provide the mother with services and support so she can have a shot at regaining custody of her daughter; pay damages to the family; and withdraw a petition to terminate the mother's parental rights that's currently in state court.

They also called for broader changes, saying the case highlights "systemic failures by DCF to ensure social workers follow appropriate policies and procedures and have necessary training to perform their duties without discriminating on the basis of disability."

The National Council on Disability has documented similar cases across the country, including a Kansas City, Missouri, couple who had their daughter taken into state custody because they were both blind, and a quadriplegic mother in Chicago who waged a lengthy legal battle to keep custody of her son.

In the past, state child welfare officials have defended placing such children in foster care out of grave concerns for their adequate care and well-being.

Cayenne Isaksen, a DCF spokeswoman, said the agency will be responding to the federal government's report.

"DCF believes it acted in the best interest of the child," she said, without elaborating.

Through their lawyers, the young mother and her family declined requests by The Associated Press to be interviewed. Their lawyers said community service providers support the family's plan to care for the little girl, who is now 2. The grandparents want to be designated as the child's legal guardians and have promised to continue helping their daughter, who lives with them, learn to care for the toddler.

"This mother has good supports. There are no issues of substance abuse or domestic violence," said Mark Watkins, a lawyer for the mother. "I have complete confidence in the ability of this family to parent this child safely."

Watkins said the mother, who is working to finish her high school degree, hasn't given up on her daughter — visiting her regularly and taking courses to improve her parenting skills.

"She has been resilient. She's been disappointed at nearly every turn by the court and the department," Watkins said. "But she has never stopped trying. She never quit. A lesser person would have given up by now."