The Right to Parenthood

The Oregon DHS’s demand that a low-IQ couple prove their ability to parent echoes a past we thought we’d left behind.

Eric Ziegler and Amy Fabbrini at their home in Redmond, Oregon
The right to establish a home and raise children is among the most basic of civil rights, long recognized as essential to the orderly pursuit of happiness. Cherished as this right may be, however, it has been violated, abused or just ignored for people with disabilities. Although persons with disabilities have made significant gains in recent years in overcoming the invidious discrimination with which they have long been burdened, the legal rights of parents with disabilities remain in question. — Dave Shade, “Empowerment for the Pursuit of Happiness: Parents with Disabilities and the Americans with Disabilities Act,” Law and Inequality, 1998
We’ve just done everything and more than what they’ve asked us to. — Amy Fabbrini
It doesn’t seem like it’s good enough for them. They’re saying, ‘Who would parent Christopher better, the foster parents or the parents?’ is basically what they’re going on. — Eric Ziegler

After a four-year fight, Oregon residents Amy Fabbrini and Eric Ziegler can finally begin raising their own children after a county judge ordered the Oregon Department of Human Services to return their sons to their care. Hunter, who is ten months old, was able to go home shortly before Christmas, and Christopher, age four, will be gradually phased out of the foster home he has lived for almost his entire life and into his parents’ home.

Jamie Gerlitz, Fabbrini’s attorney, spoke to The Oregonian after the ruling:

I think the system is broken. DHS has a lot of power and it’s really scary that it’s taken these people four years to be heard. I’m glad the case was successful, but it shouldn’t have been this hard.

The couple may have ultimately won their legal battle, but no judge can give them back the four years of parenting that they have missed. No one can make up for the fact that from the time that their children were just days old, the only time they have been allowed to spend with them is in a stranger’s home, with the indignity of constant “supervision” from watchful case workers waiting for them to do something wrong.

The events that left Ziegler and Fabbrini petitioning first the DHS, then the judiciary for the right to raise their own children began just days after Fabbrini, who did not realize she was pregnant until she went into labor, gave birth to Christopher in 2013. Within a few days, Fabbrini’s family raised concerns with the DHS that the couple was intellectually incapable of caring for the child.

Although no evidence of abuse or neglect was found, the DHS removed Christopher because they found that Ziegler and Fabbrini had “limited cognitive abilities that interfere with (their) ability to safely parent the child.” Early last year the couple had Hunter, their second child, but they never got to bring him home; the DHS removed the infant from their care before they even left the hospital.

IQ test results provided by the couple showed that Fabbrini scored a 72, and Ziegler a 66. A score of between 90 and 110 is considered average. Ziegler’s score of 66, according to the test, would qualify as evidence of a very mild mental disability, while Fabbrini’s score of 72 would put her at the low end of normal cognitive ability. Although Ziegler’s parents bought the house they now live in, they have been able to live independently and both have earned standard high school diplomas and held full-time jobs. Ziegler is currently employed in the mail room at a local paper.

Samantha Swindler, a reporter who covered the story for The Oregonian wrote:

According to child welfare records provided by the couple, Ziegler “has been sleeping with the baby on the floor and almost rolled over on him. There were also reports that Eric is easily frustrated and often forgets to feed his dog.”
Ziegler says he was lying next to his son while feeding him. The dog (which he still has) is well-fed, perhaps even too plump.

Swindler, who sat in on the legal proceedings, reported that the state attorneys presented as evidence such examples as the couple giving their toddler fast-food chicken nuggets, that they didn’t apply sunscreen correctly, and that their home “smelled of dog.”

Ziegler and Fabbrini say they have done everything they could to prove to the state that they were capable of parenting, and committed to doing the best job that they could. The couple took classes on parenting, first aid, CPR and nutrition, but none of it was enough — the DHS still insisted on making Christopher and Hunter available for adoption.

There is nothing new or unusual about parents with disabilities having their right to parent their children revoked by state agencies, often without due cause. The National Council on Disability states that,

. . . the rate of removal of children from families with parental disability — particularly psychiatric, intellectual, or developmental disability — is ominously higher than rates for children whose parents are not disabled. And this removal is carried out with far less cause, owing to specific, preventable problems in the child welfare system.

This case is particularly noteworthy because it illustrates just how little provocation the state requires before it will dispossess the mentally impaired — or even the mentally challenged — of their parental rights. Ziegler’s disability is a mild one and Fabbrini cannot technically even be considered to be disabled, and both have been able to lead relatively normal lives. The case against them is so petty that it would never even be taken seriously if it weren’t for their perceived disability. When the state is taking someone’s child away over a chicken nugget, you know that there is something very, very wrong.

The fact that disabled parents still face a burdensome level of scrutiny and discrimination from state child protection agencies is bad enough, but no conversation about the parental rights of the disabled can leave out the historic failure of the U.S. government to recognize the rights of the disabled to beget children at all, let alone raise them.

In 1927, America was at the height of its dangerous obsession with eugenics — the idea that the physical, intellectual and moral quality of the population could be raised through suppressing reproduction among the genetically “unfit” and increasing the reproduction of the “fit”. It was in this atmosphere that the U.S. Supreme Court failed to defend Carrie Buck, a so-called “feeble-minded” woman from the ambitious machinations of a fanatical social movement, by giving its blessing for Carrie to be sterilized by the state of Virginia in order to prevent her from creating more “degenerate” offspring. The case gave us one of American legal history’s most infamous court opinions, in which Justice Oliver Wendell Holmes wrote:

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind . . . three generations of imbeciles is enough.

The Buck vs. Bell ruling opened the floodgates for tens of thousands of state-ordered sterilization procedures over the course of the next several decades.

Although World War II, the Holocaust, and the Civil Rights movement brought about a repugnance for eugenic philosophy in America that is nearly universal today, the sinister underpinnings of its ideas still find footholds in our popular consciousness. Ora Prilletensky, author of Motherhood and Disability: Children and Choices, writes:

In addition to the myth of asexuality and skepticism regarding their ability to attract partners, women with disabilities have been discouraged from having children for a variety of other reasons. Concerns that they will give birth to ‘defective’ babies and prejudicial assumptions about their capacity to care for children often underpin the resistance that they may encounter.

The right to bear children and the right to raise them are inextricably linked. If a disabled person, by virtue of being disabled, can have their parental rights so easily dismissed by the state, they may very reasonably ask: what is the point in having children at all? Thus, the threat of parental rights termination becomes a kind of “back-door” form of eugenics, whether consciously or not.

The State of Oregon has a long history with eugenics. More than 2,600 Oregon residents deemed to be“unfit” for procreation were sterilized at the hands of the state. Oregon also carries the sad distinction of being the state where the last state-ordered sterilization in the U.S. occurred, in 1981.

With such a history behind us, we must be vigilant in our protection of the rights of every citizen — especially those with disabilities. Today — though four years late — the state has finally made things right with Ziegler and Fabbrini, and the attention that their fight has received has prompted the drafting of a new bill designed to protect the parental rights of the disabled. If passed, the law would prohibit an “emotional illness, mental illness, intellectual or developmental disability or other disability” from being considered cause to remove a child from a parent’s custody, “if the court does not find any additional conduct or conditions seriously detrimental to the children.”

The bill has received resounding bipartisan support.

Further reading:

Three Generations, No Imbeciles by Paul Lombardo

War Against the Weak: Eugenics and America’s Campaign to Create a Master Race by Edwin Black