Sunday, January 20, 2008

Whose Rights Are We Protecting? And Just How Do We Get There?

There has been lot of talk about 'rights' lately. Are we infringing their rights? Are they infringing ours? Or, maybe in other words, who's in the right?

As I've said before, my take on that goes something like this.
First of all, where there is a right, there is also a corresponding responsibility. And secondly, my rights stop where your rights start. Meaning that although I am certainly entitled to my rights and to have them respected, that doesn't give me the right to infringe on your rights.

And individuals with disabilities are certainly entitled to their rights too, aren't they? The same rights as you and I enjoy. And perhaps even a few more ... like the right not to be discriminated against on the basis of their disability. Now before the big guns come out, let me tell what you what I'm pondering here.

The right of the disabled to parent and raise their own children.

On first blush, I suppose that may sound fairly straight forward. And common sense even. But it really does have to be weighed against the extent of the parent's disability, doesn't it?

Most, if not all, jurisdictions in the Western world now have the test in child protection proceedings as what is in the child's best interests. Ah yes, the magic words, the mantra even ... the child's best interests. Hard to argue with that one, isn't it? And who in their right mind would want to?

I suppose where the potential for break down comes in is in how that test is interpreted and applied. Does who is deciding what is in a particular child's best interests influence the answer?

I read a lot of child protection cases as part of my work and I am seeing more and more cases where disabled individuals are losing their parental rights. The majority of the ones I have reviewed have to do with parents with mental disabilities. And some of them are real heartbreakers. Where even the judge goes out of his way to repeatedly state that he realizes that these parents love their children, they are doing their absolute best to take care of them but quite simply ... it isn't good enough. Not good enough to protect the children from the potential of harm.

In others, the court is not perhaps not quite so appreciative or aware of how hard those parents are trying. And in others, I must confess, I have wondered at times if there isn't a 'built in' bias to the system ... do all the players lean, even unconsciously, to a predetermined viewpoint that the parents can't do the job? Did those parents ever really have a fair shot?

And now a story from the U.S. about a mother with a physical disability.

Sabreena Westphal, 40, says that she loves babies and has always wanted to be a mother. She has given birth to three children, yet has not had the opportunity to raise any of them. She is now fighting to retain parental rights and bring her daughter back home.

Westphal is disabled. She suffers from cerebral palsy and can not walk or fully use her arms, yet she still is fighting for the right to raise her youngest child after her two sons were taken from her and adopted 20 years ago.

I never realized that until the Americans with Disabilities Act was passed, disabled parents were automatically considered unfit to raise their children. Did you? At least now, apparently, they are given the opportunity to prove they are able.

Many parents with disabilities are able to care for their children. In more than 8 million families in the United States, there is at least one parent who is disabled. Westphal is unable to get out of bed without assistance and does not have a close circle of friends or relatives that she can rely on for assistance. Wince [Ed. the child's father] is still seriously ill and requires three dialysis treatments per week.

Still the couple is fighting to get their daughter back. It has been quite a struggle so far. The child custody case takes place in a court which is not near their home, and without a car or much money, it is difficult for them to attend all of their court dates. They say that their lawyers have failed to keep them informed of when their court dates are and of progress in the custody case. They also complain that the couple who is trying to adopt their daughter fails to bring her for court-ordered visitation.
Sounds like an uphill battle, doesn't it?
Despite all the obstacles to getting her daughter back, Westphal is not giving up. While she and Wince clearly need help raising their daughter if they should get her back, is it up to the county to hire help for them? Certainly with their limited income, they would be unable to afford this type of assistance on their own.

If a family court judge was to decide that it would be best for this child to be with her biological parents, clearly the county will have to provide some assistance to Westphal and Wince. Alternatively, if the court decides that the child should be adopted, Westphal will lose another child and likely the opportunity to fulfill her dreams of being a mother.
So then I had to wonder ... if the parents are unable to physically care for the child without help, does that mean that the court should decide that it is is in the child's best interests to be taken out of their care? Or, should we determining what is in this little girl's best interests based on a scenario where the parents will be provided with the help they need to take physical care of the child? But then again, if that scenario was ever a real possibility, the child would never have had to be taken out of the parents' care in the first place.

I have also watched, in amazement, as the flip side of this scenario has played out in the cases. Where a child psychologist led evidence to the effect that no normal family could possibly ever provide the level of care and attention that an autistic child needs. And thus, ipso facto, the child needs to be taken out of their care and placed for adoption.

So, let me get this straight ... although no 'normal' family, which we would expect to be the most motivated to provide the love, care and attention the child requires, can ever provide what this child needs we should expect the child to get the level of care and attention he needs in the foster care system? And then to find the adoptive families who are able to provide this level of care and attention ... apparently not just for this child but for every autistic child out there?

Hmm ... perhaps we're all a little more biased than we would like to admit. Excuse me, I think I have to go take a pill now. My head is starting to hurt. Real bad.


neardem said...

I don't blame you for your head hurting. What a difficult situation this is - or better said, how many difficult situations there are regarding family, parental rights, children's rights etc. There are perfectly 'normal' parents who abuse, maltreat, and in no way contribute to the emotional, physical welfare of their child/children ...nope, I can't go into this subject easily - the truth is that it should all be decided by judges with enormous common sense and understanding.

MMC said...

If only all judges had the wisodom of Solomon. Fortunately I have come across one Family Court judge locally that I can say truly seems to fit the bill.

neardem said...

... and I should add, not necessarily by the hard word of the written law.

neardem said...

Glad to hear this - a Family Court judge who truly fits the bill is a blessing - not many around, they don't seem to have the 'time' to really look into the different situations.
Good news then

Casdok said...

Its a mine field.
Now my son is over 18 he is seen as an adult in his own right, apprently i now dont have to be informed of anything.
As he dosnt speak this is of great concern to me, as you can imagine.

MMC said...

Casdock, would your situation with C be any different if you were appointed his guardian?