New Ohio law protects disabled people's parental rights

COLUMBUS, Ohio (WCMH) – Todd Elzey has been around the block.

Hailing from West Jefferson, Elzey was a licensed attorney in California before moving to upstate New York to work for the state’s Medicaid office. After returning to Ohio, he was a freelance reporter covering city government in Geneva and Kettering.

He’s also legally blind and has significant hearing loss, two things he’s lived with his entire life.

And until about 2016, Elzey was the primary caregiver of his three children. For a decade of marriage, his full-time working wife never doubted his ability to raise the kids, he said.

But when they separated, Elzey said his wife’s tune changed. Suddenly, his disabilities – never an issue during their marriage – became threats to his children’s safety. She promised a lengthy and vicious battle in court should he try to secure equitable custody arrangements, something he didn’t want to put his children through.

Despite his extensive legal knowledge, Elzey said he felt helpless. A divorce attorney he consulted recommended avoiding court at all costs. Against his able-bodied wife, who assured him she would base her argument on his disabilities, the attorney said Elzey didn’t stand a chance.

Instead, when the divorce was finalized in 2017, Elzey agreed to a custody arrangement he didn’t think was fair. He said his ex-wife ignored the scant visitation rights he was granted; although he moved less than a mile away, he’d go months without visiting or speaking with his children.

But he was afraid to challenge his ex-wife in court, worried a judge might see him, a disabled father, and instead strip his parental rights away entirely.

“There were lots of holidays missed,” Elzey said. “It was just very frustrating and very upsetting – especially since there was nothing I could do about it.”

Elzey, treasurer of the National Federation of the Blind of Ohio, said his experience is not uncommon among disabled parents. It’s why the NFB of Ohio has fought for six years to change Ohio law to protect disabled parents and parents-to-be from prima facie determinations of caretaking ability.

With Gov. Mike DeWine’s signing on Tuesday of Senate Bill 202, Ohio joins fewer than half of states who have codified protections for disabled parents, guardians and caregivers.

Disabled parents win protections

SB 202, introduced in 2021 by Sens. Bob Hackett (R-London) and Nickie Antonio (D-Lakewood), prohibits courts, children’s services, child placement agencies and adoption agencies from denying or limiting parental or custodial rights based on a person’s disability. Instead, the law realigns agencies’ actions with how nondisabled parents are typically treated: challenging a person’s parental or custodial rights only when there is clear and convincing evidence of a threat to the welfare of a child.

The bill specifies that courts and agencies may determine that disabled caretakers, including hopeful adoptive or foster parents, require “necessary and reasonable” supportive services, to be bankrolled by the state. If supportive services aren’t deemed necessary and reasonable, agencies may limit the disabled person’s parental or custodial rights.

The legislation also outlines avenues for disabled people to challenge custodial decisions in court – by either rebuking the denial or limitation of custodial rights or the requirement of supportive services.

When introducing the bill to the Senate Judiciary Committee in September 2021, Hackett said the legislation would “address the existing preconceived notions and biases against the ability of a person with a disability to be a successful and loving parent.”

“With this legislation, we will ensure that families come first in Ohio,” Hackett said.

Fear of being put ‘under the microscope’

Eric Duffy, secretary of the NFB of Ohio, said as an advocate, he’s worked with many disabled people who lost custody of their children or had their children taken by children’s services because someone – a social worker, medical professional or neighbor – saw the person’s disability as automatically disqualifying them from being able to care for a child.

According to the National Council on Disability, disabled parents are overrepresented in the number of children’s services cases, with parents with disabilities being twice as likely as nondisabled parents to be referred to children’s services.

Of families reported to children’s services, children are removed up to 80% of the time from households with a parent who has a psychiatric disability. Removal rates are similarly high for households with an intellectually disabled parent, the council reported.

Duffy said the majority of the time, children are returned home after an agency investigates the disabled parent’s caretaking ability. But those investigations can take months, Duffy said – and a child’s removal is often traumatic for all family members.

“Effort should always be made to keep a family together with as little disruption as possible,” Duffy said. “I think in many cases, it is – but not always when it comes to people with disabilities.”

Duffy said he knows all too well the fear and worry that comes with being a disabled parent. 

He and his wife are blind. Duffy said unlike other parents with disabilities, their capacity to care for their children was not challenged by hospital staff when his wife gave birth. But it didn’t make future interactions with the health care system less anxiety-fraught.

Duffy’s children are grown now. When they were children, he said they got into the typical kid trouble: bruised knees, broken arms, the occasional stomach bug or flu. 

“I always felt that burden of having to be more careful with my kids,” Duffy said. “I always felt like if anything happened, I was going to be under the microscope.”

Duffy and Elzey agreed that a major factor in the widespread threats to disabled people’s caretaking rights is rooted in a misunderstanding of how disabled people live. 

Elzey, for instance, wears hearing aids during the day and removes them at night. He said a question deaf people often face is how they would tell if there were an emergency while asleep. An accommodation he said he might use is a bed shaker device, an under-the-pillow alarm that would go off in case of a fire or when house doors opened.

“Well, nobody really knows the first time they’re a parent,” Elzey said. “But you just learn how to do it like everybody else.”

Duffy said blind parents monitor their children like many other parents do: by listening. They also use their other senses, such as touch, to gather context about their kids and surroundings.

“My kids were in no greater danger with the fact that I was a blind father than kids of sighted, nondisabled parents are,” Duffy said.

Regulations after legislation

After six years and three General Assemblies, Elzey and Duffy said they were thrilled that protections for disabled caregivers have become law.

Now, the NFB of Ohio is planning for the next step of the law: policy development. Duffy said the organization wants to ensure people with disabilities are involved in the state department of jobs and family services’ rulemaking process – which will dictate how the law is implemented.

The NFB of Ohio is also working to notify the public of the law change – and to make the public better informed of disability issues and the people they affect.

“People fear what they don’t know,” Duffy said. “And if you fear something, you’re going to rail against that."