Politicians will spend July celebrating the ADA’s anniversary. In family court, the ADA doesn’t apply.
By Michael Phillips | Father & Co.
July is Disability Pride Month. The proclamations are already going up — governors, county executives, mayors, agency accounts. The 2026 theme, selected by The Arc’s National Council of Self-Advocates, is “The World Works Better With Us.” The month is anchored to July 26, the anniversary of the Americans with Disabilities Act, signed in 1990 and now approaching thirty-six years old.
In the one venue where a disabled American stands to lose the most — a courtroom deciding whether they keep their children — the ADA has been held, over and over, not to apply.
Here is what the proclamations will not say: in the one venue where a disabled American stands to lose the most — a courtroom deciding whether they keep their children — the ADA has been held, over and over, not to apply.
This is not a fringe reading of the law. It is the mainstream position of American family courts.
The Numbers
Start with the scale. The National Council on Disability, the independent federal agency that advises the government on disability policy, published its landmark report “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children” in 2012. Among its findings: removal rates as high as 70 to 80 percent where a parent has a psychiatric disability, and 40 to 80 percent where a parent has an intellectual disability. Parents who are deaf or blind report extremely high rates of removal and loss of parental rights. Fully two-thirds of state dependency statutes, the report found, allowed a court to determine that a parent is unfit — the determination necessary to terminate parental rights — on the basis of the parent’s disability. In its letter transmitting the report to the President, NCD described parents with disabilities as the only distinct community of Americans who must struggle to retain custody of their children.
That was 2012. The natural question is whether anything has changed in the fourteen years since.
The most rigorous answer comes from Robyn Powell, a disability law scholar who conducted a systematic review of every state’s termination-of-parental-rights statutes, published in the Washington University Law Review in 2023. Her finding: parents in forty-two states and the District of Columbia remain at legal risk of having their parental rights terminated because they are disabled. NCD counted thirty-seven states plus D.C. in 2012. The number went up, not down.
Powell’s earlier research, published in the Yale Law & Policy Review with Susan Parish and colleagues, examined 2,064 appellate termination-of-parental-rights decisions issued between 2006 and 2016 involving mothers with disabilities. Ninety-three percent ended in termination of the mother’s parental rights.
Read that again. At the appellate level — where cases arrive after a parent has already lost below and mounted the resources to appeal — the system confirmed the termination more than nine times out of ten.
The Law That Doesn’t Follow You Inside
The ADA was written as a comprehensive national mandate against disability discrimination. In family court, it functions, for most disabled parents, as if it were never signed.
The ADA was written as a comprehensive national mandate against disability discrimination. Title II covers state and local government services. Child welfare agencies are state and local government. Family courts are state government. The logic seems airtight.
It isn’t. The dominant judicial position, adopted by appellate courts across the country, is that the ADA is not a defense in a termination-of-parental-rights proceeding. Courts have offered a rotation of rationales: that termination proceedings exist for the benefit of the child, not the parent, and therefore parental accommodations are beside the point; that a termination proceeding is not a “service, program, or activity” within the meaning of Title II; and that if a parent believes the agency discriminated, the proper remedy is a separate federal lawsuit — one that will resolve years after the child is gone.
The same Yale study put numbers on how thoroughly the law has been written out of these cases. Across those 2,064 appellate termination decisions involving disabled mothers, the ADA was raised in only 6 percent of the decisions — and actually applied in fewer than 2 percent of the opinions. In the proceeding where a disabled parent’s rights are permanently severed, the nation’s foundational disability rights law goes unmentioned ninety-four times out of a hundred.
A 2024 analysis in the California Law Review, bluntly titled “Unaccommodated: How the ADA Fails Parents,” surveyed the case law and found the largest category of decisions comes from family courts that remain, in the authors’ words, completely hostile to ADA-based discrimination claims.
Guidance is not precedent, and in courtroom after courtroom, the parent raising the ADA loses the argument before losing the child.
The federal government itself disagrees with those courts. The Department of Justice and the Department of Health and Human Services have issued joint technical assistance stating that Title II and Section 504 of the Rehabilitation Act do apply to child welfare agencies and courts, and both departments have pursued enforcement actions against states. But guidance is not precedent, and in courtroom after courtroom, the parent raising the ADA loses the argument before losing the child.
So the timeline for July 2026 reads like this: on July 26, elected officials will commemorate the thirty-sixth anniversary of the ADA. In the family courts operating that same day, the ADA will function, for most disabled parents, as if it were never signed.
What The Statutes Actually Say
Defenders of the status quo will point out — correctly — that no state terminates parental rights on a bare diagnosis. The statutes typically require a connection: a disability that renders the parent unable to care for the child, in the language many states use. On paper, that is a nexus requirement, and a nexus requirement sounds like a safeguard.
When the statute invites the court to look at the diagnosis, the diagnosis has a way of becoming the evidence.
In practice, legal and child-welfare professionals have documented that the nexus is often assumed rather than proven. The American Bar Association’s child law practice guidance notes that disability-based grounds persist in statute because of a belief that courts never intervene without a genuine link between the parent’s disability and the child’s safety — and that in practice, the link is often not there. The Institute on Community Integration at the University of Minnesota reached the same conclusion in its review of state TPR codes: many states use outdated terminology, imprecise definitions of disability, and statutory language that focuses on the disability itself rather than on parental behavior. When the statute invites the court to look at the diagnosis, the diagnosis has a way of becoming the evidence.
A therapy record becomes an exhibit. A medication list becomes a cross-examination outline. A diagnosis becomes a custody argument. The tools built to help become the tools used to sever.
This is the same mechanism this publication has documented in other contexts: a characteristic that is protected everywhere else in American life — employment, housing, education, public accommodations — converts, at the family court door, into litigation ammunition. A therapy record becomes an exhibit. A medication list becomes a cross-examination outline. A diagnosis becomes a custody argument. The tools built to help become the tools used to sever.
And unlike nearly every other proceeding where the stakes are this high, the parent frequently faces it without the procedural protections a criminal defendant would get, in a system where the standard of proof is lower, and the state’s expert testimony often goes unrebutted because the parent cannot afford an expert of their own.
The Reform Ledger
It would be wrong to say nothing has moved. Since “Rocking the Cradle,” nearly thirty states have introduced or passed legislation intended to protect the rights of disabled parents — laws requiring courts to tie disability to actual harm before it can count against a parent, or requiring that adaptive equipment and supportive parenting services be considered before removal. The 2016 White House convened an event on the rights of parents with disabilities. HHS finalized new rules in 2024 aimed at ensuring child welfare systems treat disabled parents more fairly.
It costs a governor nothing to proclaim Disability Pride Month. It would cost something real to guarantee that a wheelchair, a hearing aid, a depression diagnosis, or an anxiety prescription cannot be entered against a parent as evidence.
But the headline number is the one that refuses to move. Forty-two states and the District of Columbia still carry disability in their termination statutes — more than a decade after the federal government’s own advisory body called for those provisions to be removed. The states passed protective legislation with one hand and left the termination grounds in the code with the other.
That is the gap the July proclamations will paper over. It costs a governor nothing to proclaim Disability Pride Month. It would cost something real — a legislative fight, an honest audit of the state’s own family code — to guarantee that a wheelchair, a hearing aid, a depression diagnosis, or an anxiety prescription cannot be entered against a parent as evidence.
One in four American adults has a disability. Every one of them who is also a parent is one custody filing away from discovering which version of the law their state actually runs on: the one in the proclamation, or the one in the statute book.
One in four American adults has a disability. Every one of them who is also a parent is one custody filing away from discovering which version of the law their state actually runs on: the one in the proclamation, or the one in the statute book.
The world works better with us, this year’s theme says. The family courts have not yet agreed.
Sourcing: National Council on Disability, “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children” (September 2012), including removal-rate findings (70–80 percent for parents with psychiatric disabilities, 40–80 percent for parents with intellectual disabilities), the finding that two-thirds of state dependency statutes permitted an unfitness determination on the basis of parental disability, NCD’s count of 37 states plus D.C. listing disability in TPR statutes, and the report’s recommendation that states eliminate disability from their statutes as grounds for termination; Robyn M. Powell, “Legal Ableism: A Systematic Review of State Termination of Parental Rights Laws,” 101 Washington University Law Review 423 (2023), finding 42 states plus D.C.; Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone, and Stephen Fournier, “The Americans with Disabilities Act and Termination of Parental Rights Cases: An Examination of Appellate Decisions Involving Disabled Mothers,” 39 Yale Law & Policy Review (2021), reviewing 2,064 appellate decisions from 2006–2016 with a 93 percent termination rate, the ADA raised in 6 percent of decisions and applied in fewer than 2 percent; “Unaccommodated: How the ADA Fails Parents,” California Law Review (2024); U.S. Department of Justice and U.S. Department of Health and Human Services, “Protecting the Rights of Parents and Prospective Parents with Disabilities,” joint technical assistance under Title II of the ADA and Section 504 of the Rehabilitation Act; American Bar Association, Child Law Practice, “Representing Parents with Disabilities: Best Practice” (2015); Institute on Community Integration, University of Minnesota, Policy Research Brief, “The Inclusion of Disability as Grounds for Termination of Parental Rights in State Codes”; The Arc, Disability Pride Month 2026 theme announcement; The Conversation/Youth Today reporting on 2024 HHS child welfare rules and state legislative activity following the NCD report.
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