ADOPTION/FOSTER CARE AGENCY MAY CONSIDER PROSPECTIVE PARENT'S DISABILITY AND DENY A PLACEMENT BASED ON CONCERN FOR CHILD'S PHYSICAL SAFETY

The first court to address the applicability of the Americans with Disabilities Act (ADA) to adoption and foster care agencies has weighed in, with a decision supporting the right of adoption and foster care agencies to take physical disability into account as a "legitimate consideration" when assessing an individual's fitness to become an adoptive or foster parent, provided that the agency does not routinely exclude disabled applicants from consideration by reason of their disability.

By its express terms, the ADA, which took effect in 1990, prohibits discrimination against individuals on the basis of disability. Although the ADA is generally perceived as intended to protect disabled individuals from being discriminated against in the context of employment, the Act also prohibits discrimination in the enjoyment of services--including services offered by adoption and foster care agencies. As service providers, adoption and foster care agencies, public and private, are prohibited from imposing or applying eligibility criteria that screen out or tend to screen out disabled individuals from becoming adoptive or foster parents. Although the statute permits service providers to use disability-related screening criteria if another's safety is at issue, until now the use of "safety" to justify a disability-related screening criteria by an adoption or foster care agency has not been tested.

In Adams v Monroe County, 21 F. Supp. 2d 235 (W.D.N.Y. 1998), the United States District Court for the Western District of New York dismissed an action against the Monroe County Department of Social Services initiated by a blind woman, Kimberly Adams and her husband, Leverne. The couple, who had an eleven year old biological son at the time they registered with the agency, had applied to become adoptive parents and subsequently had expressed a willingness to serve as foster parents. Upon inquiring of the agency as to why they had not been considered for a certain four year old boy, the couple was advised that the child was "extremely active," and the agency was concerned about the mother's ability to safely supervise him in light of her blindness.

The court held that the agency's determination that it would not be in the best interests of the four year old child--or any other child available at the time--to be placed in plaintiffs' home because of the risk of physical harm did not constitute unlawful discrimination. In reaching its decision, the court relied on its evidentiary finding that "there was no final, conclusive decision that [Mrs. Adams] could not under any circumstance be considered"; to the contrary, the Court found that the evidence showed that the agency had attempted to pursue the process with plaintiffs but that plaintiffs abandoned the process once they received a child through private adoption. To the extent that Mrs. Adams's blindness was taken into consideration by the agency, the court believed it was a legitimate consideration. The agency's role, declared the court, "was not to find a child for plaintiff's home, but the opposite: to find suitable homes for children." In this vein, the court concluded that the agency's determination that "it would not be in the available [authors' emphasis] children's best interests to be placed in plaintiffs' home because of the risk of physical harm did not constitute unlawful discrimination." Throughout its opinion, the court appeared to rely on the agency's claim that it was only "certain children"--the children "available" at the time-- who could be jeopardized by Mrs. Adams's blindness, implying that a fitness assessment had been undertaken on a case by case basis and suggesting that a child might become available in the future for whom the Adamses would be a good fit, notwithstanding Mrs. Adams's blindness.

The Adams decision is likely to be applauded by child placement agencies and other children' advocates for deeming the child's best interests paramount, although it should be noted that, in doing so, the court was not making new law but rather seeking to uphold the precedent set by New York State case law in matters involving adoption or foster care where the child's best interests is the standard by which placement decisions are made. Nonetheless, the court sought to achieve a laudable balance of interests by refusing to sanction a flat-out exclusion of disabled individuals from consideration as prospective adoptive/foster parents while condoning consideration of a prospective parent's disability on a case by case basis if a child's safety could be at risk.

Much as agencies and children's advocates may take comfort from the fact that the first ADA case involving a child placement agency was decided in the agency's favor, the decision nonetheless raises some serious concerns. In reaching its decision, the court seemed to rely heavily on its assumption that children in foster care have greater needs than most children, including behavioral problems and other special needs. While this assumption may indeed be well-founded, the court successfully avoided any inquiry into whether the Adamses were able and prepared to meet the needs of a foster child. For example, there was no inquiry into the extent to which, if at all, Mrs. Adams had taken steps to ensure for the safety of an "extremely active" child--such as by specially equipping her home or by planning to take a friend or other support with her on outings, such as excursions to the playground. Moreover, the court only fleetingly acknowledged that the Adamses had "capably raised their own two [sic] sons" and hardly gave any weight to this fact.

In effect, the agency appeared to have made the decision not to place the four-year old with the Adamses based on mere speculation that Mrs. Adams's blindness would jeopardize the child's safety and not based on actual risks. The court, in so doing, risks perpetuating the very "stereotypes, generalizations or unfounded fears about individuals with disabilities" that the ADA was intended to thwart. [See Freundlich 1997]

Finally, the court seemed unduly sympathetic to the agency's concern about its potential liability to birth parents should any accident befall their child while in foster care. According to the record, the agency admitted that the "liability issue" would not be a concern with a child who is freed for adoption. The question arises as to whether the greater motivating force behind the court's decision was the best interests of the child or fear of liability to birth parents.

Clearly, a flurry of decisions can be expected to follow in the wake of Adams. And certainly there is much to be considered by the courts, including the scope of the "safety" justification. It is hoped that future courts--if not Congress--will take the opportunity to give substance to the meaning of "safety" so that questions being grappled with by agency professionals today might be answered. As but one example, agency professionals need to now whether they may consider a prospective parent's mental illness in assessing fitness and, by the same token, whether they may deny a placement based on concern for a child's "emotional/psychological safety" or just physical safety.

References

Freundlich, M. (1997). The Americans With Disabilities Act: What Adoption Agencies Need to Know. CWLA AdoptioNews, 2 (2), 1, 3-4.

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