The Kentucky Supreme Court will soon decide whether the Commonwealth of Kentucky should give a mom with intellectual disabilities another chance to regain custody of her child. The court heard oral arguments Wednesday in a case that could have far-reaching implications for the parental rights of people with disabilities in Kentucky.

The case before the court boils down to whether the Cabinet for Health and Family Services provided reasonable accommodations to a mother with autism and a low IQ. The state removed her baby shortly after birth, and the woman has spent years trying to regain custody.

Attorney Abigail Volker, who is representing the Cabinet for Health and Family Services, said the child was removed and remained in foster care because of the possibility of neglect.

“The testimony of the qualified mental health professional was, it did not matter what services were offered, her IQ sat at 65,” Volker said. “Where her cognitive delays were, there was no way progress that could be attained.”

But the mother’s attorney, George Thompson, said the woman is now living on her own, has a part-time job and is able to raise the now-five-year-old.

“She made sufficient progress, I believe she did improve dramatically during the course of the case,” Thompson said. “There was no testimony given that the child was neglected that occurred as a result of the removal of the child.”

Research shows people with intellectual disabilities are able to learn parenting skills. But despite that, disabilities are often cited as a reason states can take custody of children from parents.

A 2018 study using federal data found that in 2012 in Kentucky, parental disability was listed as at least one reason for removing children in about 20 percent of cases; above the national average of 19 percent. In about 4 percent of child removal cases, it was listed as the sole reason.

Kara Ayers, the associate director of the Cincinnati Center for Excellence in Developmental Disabilities, said disability is often used in these parental rights termination cases. About 20 states in the U.S. still have laws that allow a child to be removed on the basis of disability alone. For parents without a disability, states have to prove a reasonable cause or suspicion of neglect to terminate parental rights.

“They kind of have the due process rights — you can’t just remove a child on the basis of religion or status,” Ayers said. “But for parents with disabilities, it literally states, that children can be removed on the basis of disability.”

Kentucky state regulation currently allows for the state to consider an intellectual disability that, “causes a parent to consistently be unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time.”

But there is research on the capacity of people with intellectual disabilities to raise a child. Researchers have found that IQ alone isn’t a predictor that a parent will neglect a child. If parenting skills are missing due to cognitive disability, these skills can often be taught, according to a 2014 study funded by a grant from the National Institute of Child Health and Development.

The issue of parental rights for people with disabilities is such a nationwide issue that states have passed laws to address concerns that these custody cases violate the Americans with Disabilities Act. In 2018, for instance, the Nebraska governor signed a law that prohibit courts from denying custody of children based on the disability of one of the parents. The ADA prohibits discrimination on the basis of disability, and says that reasonable accommodations must be made.

Kentucky v. K.S., Mother

The case before the Kentucky Supreme Court goes back to Jan. 6, 2014, when a 19-year-old woman with a low IQ and autism, identified as “K.M.S.,” gave birth to “A.W.S.,” as they are identified in court papers. According to the Commonwealth of Kentucky, hospital staff contacted the Cabinet over concerns that the mom couldn’t care for the child.

Ayers with the Cincinnati Center for Excellence in Developmental Disabilities said health care workers use an unfair standard in determining when to call child protection workers. Those standards are often applied right after a baby is born. And unless a parent is given sufficient supports to learn parenting skills, they may never regain custody.

“Most parents have pretty large leeway in terms of the way that they can approach learning childcare, whereas the minute a parent has a disability, there’s all this magnifying glass of speculation, often before they even leave the hospital,” Ayers said. “Their skills of diapering and bottle feeding and all that is really under scrutiny. And that in itself is, is unjust. And it is really concerning the precedent these cases set.”

In the case heard by the Kentucky Supreme Court, the baby was put into foster care seven days after birth. In the years following, the mother saw the child only under supervised visits and went through parenting classes. But in 2017, the Cabinet filed a petition to terminate the parental rights of the mom. In a June 2017 trial court hearing, they called on a psychologist who evaluated the mom back in 2014.

That doctor testified that in his 2014 evaluation he diagnosed the mom with a low IQ and an autism spectrum disorder. He also said that he didn’t think the mom would improve in either area and that he was concerned about possible neglect. The Cabinet on Wednesday also said she had progressed, but not enough.

Kentucky Supreme Court Judge Debra Lambert questioned why the mother has only been assessed once by a psychologist, and only a few months after the mother gave birth.

“This was a young mother, 19, when she gave birth, and the hearing was three or four years later,” Lambert said. “There’s a lot of developmental progress between 19 and 24. Why was he was not consulted again to evaluate her progress? It seems to me like there’s a big assumption like that she is never going to do any better than she’s done.”

The Supreme Court will eventually rule on the case, but there’s no set deadline for that ruling.