Mom With Disabilities and Daughter Reunited After Two-Year Court Battle

Sara Gordon* cuddled her 2-year-old daughter, Dana, on her lap and read her a picture book—nothing they hadn’t done before, but this time it was different. For the first time, Sara knew that Dana would finally be permitted to spend the night at her house. Dana will now be spending every night with her mom and her grandparents, Kim and Sam, with whom Sara lives. After a two-year court battle, Kim and Sam have finally won full custody of Dana.

“I was excited,” Kim told me. “We did the dishes together and made a big water mess, but had a lot fun. Then we had a bath and splashed a lot.”

As The Daily Beast reported last month, when Dana was born in 2012, the Massachusetts Department of Children and Families (DCF) received a call from the hospital noting concern about Sara’s “mental retardation.” Sara has mild intellectual and developmental disability, or I/DD. A DCF caseworker arrived at the hospital and observed Sara burp Dana improperly and miss a feeding due to an inability to read an analog clock. DCF removed Dana from Sara’s care and placed her with a foster family. Initially, DCF planned for Dana and Sara eventually to be reunited.

Kim, who had raised three children, had already quit her job to be a full-time help to Sara in raising Dana. Sara visited Dana whenever DCF permitted and took advantage of every available parenting education opportunity. Nonetheless, when Dana seven months old, DCF began arranging for Dana to be adopted by the foster family.

“It was heartbreaking,” said Kim. “My daughter had to go to bed wondering if her daughter was all right. I knew from experience with my daughter, who needed ear tubes, that Dana should be checked to see if she needed ear tubes. But I was told I didn’t know what I was doing. I was told I had no choice, no right, so please be quiet.”

This January, the federal government intervened on Sara’s behalf. The Department of Justice and the Department of Health and Human Services blasted the Massachusetts DCF, issuing a jointly written letter accusing the DCF of violating Sara’s civil rights and practicing illegal discrimination.

“Parents have a fundamental interest in the care, custody, and management of their children and a state cannot lightly interfere with this interest. Parents with disabilities have no less of an interest in the care of their children and stereotypes and assumptions about their ability to parent cannot provide a basis for removing their children,” said Deputy Assistant Attorney General Eve Hill of the Civil Rights Division of the DOJ in an email interview Wednesday. “Our investigation revealed that such assumptions had played a role in DCF’s decisions about whether to provide reunification services and supports for this parent when such services and supports are offered to other parents involved with Massachusetts’ child welfare system.”

Kim was elated when she read the letter, “I [was] like, yes, justice is finally being done. I was in my kitchen jumping up and down!”

“This is the most important case I’ve had since I began practice in 1991 and the most work also. An impromptu law firm of at least eight lawyers worked really hard on this case,” Mark Watkins, Sara Gordon’s attorney, told The Daily Beast. “It’s the first time any federal agency got involved in a child welfare case, and it really does change the law with regard to disability rights.”

“The family just couldn’t stop smiling yesterday when I saw them,” he added. “I’m really happy.”

“I get to go through my life believing in justice again,” said Kally Walsh, attorney for Kim and Sam Gordon. “My faith in this judge and in these people prevailed.”

Several lawyers I spoke to who specialize in child welfare and/or disability rights repeatedly used words like “landmark” and “game-changer” to describe it. For the first time, federal agencies are indicating that they interpret the Title II of the Americans With Disabilities Act and Section 504 of the Rehabilitation Act, which together guarantee that the government will accommodate rights of people with disabilities to live, work, and recreate in their communities, should apply to parenting. There are over four million parents with disabilities of all kinds in the U.S., so the ramifications of this move are enormous.

It is not so much that there is a new law of the land. Rather, the letter indicates that federal protections should have applied to parenting and child welfare cases, even though they had not always been enforced. Hill indicated that the DOJ would intervene when it discovers similar violations in other states.

“While this letter highlights an example of a way in which one state agency discriminated against one parent with a disability by denying her reunification and supportive services, each case is individual and must be addressed on its own facts,” she said. “The DOJ vigorously pursues disability discrimination in many types of state and local government programs, including child welfare systems, and we will continue to do so.”

“I have two appeals pending on this issue and am using the DOJ findings to bolster my appeals,” Carrie Ann Lucas, a northern Colorado-based lawyer who specializes in juvenile and disability rights law told me.

“This case has good timing because we have so much more research showing that people with intellectual disabilities can be good parents. That shouldn’t play any role in determining a child’s removal from a home. Bias has no place in the child welfare system,” said Leigh Ann Davis, program manager for justice initiatives at The Arc, a national support group for people with I/DD. “Training should be required from child welfare agencies. I/DD is not a reason to prevent someone from being a parent, but something child welfare agencies can assist with.”

Walsh especially praised the work of The United Arc, which supported and advocated for the Gordons and worked with Sara on parenting education throughout the two years Dana lived with a foster family.

“We provide parent education services for people with intellectual disabilities, but that’s a little complicated, as in Sara’s case, when the child is not in the home,” Leslie Kinney, United Arc’s director of family and peersSupport, said.

The United Arc teaches people with I/DD positive parenting techniques, effective communication, health, and nutrition. They point out that people with I/DD can be excellent parents when taught parenting techniques with hands-on learning, repetition, role-modeling, revisiting information. “We want parents to be able to access support services to be best parents they can be. It should be the presumption in all cases. It’s a civil-rights issue,” Kinney argued.

Ed Porter, executive director of the national Arc, agreed. “When a parent is identified with a disability, services need to be put in place to accommodate the disability, such as more visitation time or more training. Too often now, it’s done for the short term,” he said. “The cost is extraordinary. Not just breaking families apart. The financial cost of putting kids into the foster system is far more expensive.”

“We applaud the thoroughness of the DOJ and HHS’s finding,” Porter added. “Academicians, lawyers, and service providers are really paying attention to this ruling.”

“We’re not the only family going through this,” said Kim. “Other families need not to give up. We need to fight for this.”

“I’m thrilled with this decision, but it was unfortunate that it ever happened. It took two years, three months, and 12 days longer than it needed to,” said Robyn Powell, a lawyer for the National Council on Disability, a federal agency that helps lawmaker craft policies relating to disability. “I hope other states will notice. This isn’t unique at all. This happens to parents with disabilities all the time. And most stories don’t have a happy ending.”

The Gordons’ names have been changed.