Published for the British Institute of Learning Disabilities
Journal of Applied Research in Intellectual Disabilities 2017, 30, 553–562
SPECIAL ISSUE
Judicial Reliance on Parental IQ in Appellate-
Level Child Welfare Cases Involving Parents with
Intellectual and Developmental Disabilities
Ella Callow*, Munazza Tahir† and Maurice Feldman†
*National Center for Parents with Disabilities and their Families, Berkeley, CA, USA; †Centre for Applied Disability Studies, Brock University,
St. Catharines, ON, Canada
Accepted for publication 26 September 2016
Background Parents with intellectual and developmental
disabilities (IDDs) are over-represented in child welfare
cases. Although IQ per se is an invalid indicator of
parenting abilities, this study examined the prevalence
of judicial consideration of parental IQ test evidence in
US appellate cases.
Methods The present authors conducted Boolean
searches of Westlaw Corporation’s case database since
1999. The present authors used a six-question checklist
to survey the 42 most recent American appellate cases
involving termination of parental rights (TPR) decisions
that included evidence of parental intellectual and
developmental disabilities based on IQ.
Introduction
Individuals with intellectual and/or developmental
disabilities (IDD) have experienced a long and bleak
history of state-sanctioned and ‘science’-driven discrimi-
nation in regard to their ability to assume social roles,
specifically the role of parents, and they continue to face
such prejudice to this day (Kempton & Kahn 1991; Aunos
& Feldman 2002). Despite the end of the eugenics
movement and large-scale deinstitutionalization of persons
with intellectual and developmental disabilities, parents
with intellectual and developmental disabilities in many
nations are overrepresented in the child welfare system1
1
The term ‘child welfare system’ is used throughout this article
to denote the State agencies that facilitate child welfare case
when the State exercises its sovereign right to provide protection
to those unable to care for themselves, including children. The
term ‘dependency court’ is similarly used to denote the court
systems that process child welfare cases and may ultimately
terminate parental rights at the behest of the State.
© 2016 John Wiley & Sons Ltd
Results In 86% of cases, parental low IQ was presented
as a barrier to parenting competence. Higher courts
uphold TPR decision in 81% of cases involving parents
with intellectual and developmental disabilities.
Conclusions Parental IQ scores are routinely relied upon
to judge parenting capacity in custody cases where
parents have intellectual and developmental disabilities.
The present authors recommend more comprehensive
assessments examining a broader range of contextual
variable that may impact on parenting abilities.
Keywords: child welfare, court cases, IQ, parents with
intellectual disabilities
and dependency courts, and frequently face loss of their
parenting rights (Booth et al. 2005; Callow et al. 2011;
McConnell et al. 2011; Rioux et al. 2011; National Council
on Disability, 2012; Singh et al. 2012; Alexius & Hollander
2014; Lightfoot & Slayter 2014). Parents with intellectual
and developmental disabilities who lose custody of their
children do not differ significantly in cognitive and
adaptive abilities from parents with intellectual and
developmental disabilities who do not lose custody of their
children. Rather, the former parents are more likely to have
a childhood history of abuse and physical and mental
health problems, as well as lower income and fewer social
supports (Aunos et al. 2003; McGaw et al. 2010; Feldman
et al. 2012).
Parents with intellectual and developmental
disabilities seem to trigger an anxiety within American
society. This is reflected in the contradictions within the
governing laws of the USA as pertain to persons with
intellectual and developmental disabilities. The USA has
signed the UN Convention of the Rights of Persons with
Disabilities (UNCRPD; United Nations, 2006). The USA
10.1111/jar.12296
554 Journal of Applied Research in Intellectual Disabilities
has also promulgated federal laws promoting the equal
rights of persons with disabilities (Americans with
Disabilities Act, 1990). Article 23 of the UNCRPD –
Respect for Home and the Family – outlines the rights of
individuals with disabilities to become parents; it also
states that children shall not be removed from the
family due to parental disability and every effort should
be made to keep the family unit intact (United Nations,
2006). Consistent with Article 23, parenting is a
generally protected civil liberty under federal law in the
USA (US Const. amend. XIV, §52 ). Yet, a vast majority
of American states allow the removal of children and
termination of parental rights on the basis of disability –
commonly intellectual disability (National Council on
Disability, 2012). In this atmosphere of conflicting legal
directives, there are many poor outcomes for parents
with intellectual and developmental disabilities and
their children in child welfare and dependency systems
(Reinders 2008; Feldman et al. 2012; National Council on
Disability, 2012).
In 2015, the United States Departments of Justice and
Health and Human Services jointly issued two key
documents relating directly to parents with intellectual
and developmental disabilities in the child welfare
system. The first was a joint Letter of Findings
subsequent to investigation of a child welfare case in
which a mother with intellectual and developmental
disabilities had her rights under the Americans with
Disabilities Act violated. These agencies, which have
jurisdiction over all American child welfare systems and
dependency courts, addressed in great depth what they
found was over-reliance on parental IQ to determine
parenting capacity in that particular case:
Staff also repeatedly emphasized the importance of IQ
in determining how to assist Ms. Gordon. However, as
the US Supreme Court recently noted, an “[i]ntellectual
disability is a condition, not a number.” Hall v. Florida,
134 S. Ct. 1986, 2001 (2013). . .DCF’s excessive focus on
the need for a disability diagnosis and IQ, and reliance
on the absence of this information as the basis for
failing to consider or provide necessary services resulted
in a denial of an equal opportunity to participate and
benefit from DCF services, programs, and activities on
the basis of disability. 28 C.F.R. § 35.130 (a), (b); 45
C.F.R. § 84.4 (a), (b). (USDOJ/USDHHS Gordon, 2015,
p. 14)
2
Meyer v. Nebraska, 262 US 390 (1923); Pierce v. Society of
Sisters, 268 US 510 (1925); Stanley v. Illinois, 405 US 645 (1972).
The agencies issued a second document, a set of
technical guidelines stemming from the earlier
investigation (USDOJ/USDHHS Guidelines 2015a,b).
Again, both agencies identified a need to avoid
stereotyping and to tailor both evaluation and services
to the needs of the parent with intellectual and
developmental disabilities, as with any parent with a
disability:
. . .parents with intellectual disabilities and parents
with psychiatric disabilities face the most
discrimination based on stereotypes, lack of
individualized assessments, and failure to provide
needed services. (p. 3)
[the law requires individualized assessment]. . .[a]n
individualized assessment is a fact-specific inquiry
that evaluates the strengths, needs, and capabilities
of a particular person with disabilities based on
objective evidence, personal circumstances,
demonstrated competencies, and other factors that
are divorced from generalizations and stereotypes
regarding people with disabilities. . . (pp. 20-21)
And,
[as to intervention/training]. . .if a child welfare
agency provides classes on feeding and bathing
children and a mother with an intellectual
disability needs a different method of instruction
to learn the techniques, the agency should provide
the mother with the method of teaching that she
needs. . . a child welfare agency should provide the
family of the child with the services necessary for
the safe return of the child to the child’s home in
a manner that meets the unique needs of the
family. (pp. 6-7)
These statements from US Federal departments
recognize the established science in the field of
intellectual and developmental disabilities and
parenting (Feldman 1994, 2010; Wade et al. 2008;
Feldman & Aunos 2010). Researchers in the field have
long held the position that decisions to terminate
parental rights are too often based on suboptimal
evaluation methods and inappropriate assessments to
measure parenting capacity (Harnett 2007; Feldman &
Aunos 2010). Several decades of research on parenting
with intellectual disabilities has demonstrated that
parental IQ alone, for instance, does not predict
parenting success and that parenting ability is not a
© 2016 John Wiley & Sons Ltd, 30, 553–562

static trait (Feldman 1994; Wade et al. 2008; Azar et al.
2012; Proctor & Azar 2013). Moreover, parenting
capacity assessors frequently fail to account for the
various personal and social factors that constitute the
family context and influence parenting skills of parents
with intellectual disability (Feldman & Aunos 2010).
For example, parents with intellectual and
developmental disabilities are more likely to
experience financial difficulties and lack of social
support, which may in turn impact parenting skills,
but this is not directly due to their intellectual
disability (Feldman et al. 2012). Parents with
intellectual and developmental disabilities, when
provided with evidence-based behavioural teaching
approaches, can acquire new parenting skills and
improve their ability to care for their children of
varying ages (Feldman 1994; Wade et al. 2008;
Glazemakers & Deboutte 2013; Hodes et al. 2014; Tahir
et al. 2015).
It is likely that practice among psychologists and
court officers does not reflect the state of the knowledge
in this field. Assessments based solely on intelligence
and personality tests appear to be commonly used
measures of parenting capacity, particularly in cases of
when parental rights are terminated (Azar et al. 2012;
Zumbach & Koglin 2015). For instance, Ackerman &
Pritzl (2011) surveyed 213 experienced child custody
evaluators and found that over 65% utilized intelligence
and personality tests with only an average of 3.7 h out
of a total of 46 h of each evaluation were spent in direct
observation of the parent and child.
The potential reliance on parental IQ is relevant to
judicial decision making at both the trial and appellate
level of child welfare cases in dependency courts.
Termination of parental rights, termed the ‘civil death
penalty’3 as it kills the legal relationship between a
parent and their children forever, occurs at the end of
child welfare cases in a trial where the state must prove
a parent remains ‘unfit’ to care for the child despite
state intervention. Parents who have their rights
terminated may then seek review by a higher or
appellate court based on a claim that the lower court
erred in analysing the facts or applying the law. The
appellate court usually shows great deference to the
decisions of lower courts; overturning them only for
clear errors and remanding (sending the case back to
3
See In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004) (‘The
termination of parental rights has been characterized as
tantamount to a “civil death penalty”’.).
© 2016 John Wiley & Sons Ltd, 30, 553–562
Journal of Applied Research in Intellectual Disabilities 555
the lower court) for reconsideration where there is a
lesser error. Nonetheless, if IQ was one of the ‘facts’
submitted by the State in a dependency court trial, it
should be reviewed for propriety under the law,
including the evidence code. After an appeal has been
heard, the appellate court will publish a written
decision that outlines what the case was about and in
what way the parent believes the lower court erred,
analyse the evidence presented and how the law was
interpreted and either uphold, overturn or send the case
back to the trial court with instruction on how to
proceed in a different fashion to reach a decision (Fine
1997).
While the federal investigation in Gordon lends
credence to the position that IQ is still being used
uncritically to adjudicate parenting capacity in parents
with intellectual and developmental disabilities, direct
evidence from court cases is lacking on the prevalence
of this practice. The purpose of this study was to
analyse a sample of appellate-level US dependency law
cases in which the parental rights of persons with
intellectual and developmental disabilities were
terminated and determine whether or not there was
reliance on parental IQ and IQ range labelling as part of
the analysis of parental capacity. Based on the federal
documents, literature on custody evaluation and our
experience with the court system, the present authors
hypothesized that a majority of cases that culminated in
termination of parental rights where parents had
intellectual and developmental disabilities involve
higher level courts continuing to rely uncritically on
parental IQ to assess parental fitness.
Methods
Boolean searches of the Westlaw Corporation legal
database generated a body of 300 post-1999 appellate-
level child welfare cases in the United States. The present
authors conducted a very broad sampling strategy
utilizing constructs to generate hundreds of variations on
base words related to intellectual disability that could
account for the variety and range of terms used in
various jurisdictions. The search terms included ‘child
welfare’ & (terminate!/15 ‘parental right’) & ((intellectua!
cognitive! mental!/3 disab! retard!)/s mother father
parent!) & da (aft 1999) for American searches. From a total
of 300 cases identified in the search, the present authors
selected the most recent 42 cases (2010–2014) that involved
appeal from termination of parental rights (TPR) and a
parent with intellectual and developmental disabilities.
Appellate level rather than trial-level cases were used
556 Journal of Applied Research in Intellectual Disabilities

because of the considerable difficulty and expense in Table 1 Case survey checklist
accessing US trial cases, which are not published.
A checklist of six questions (see Table 1) was utilized Checklist items Scoring legend
to analyse the final sample of cases. Each case was
1. Is the case an appeal 0 = No
entered into MS Excel 2010 to establish reliance on IQ
from a termination of parental rights? 1 = Yes
ranges, parental standard deviation below mean ranges
2. Does the Court reference 0 = No
and outcomes (overturning or upholding lower court’s
parental intellectual or 1 = Yes
decision to terminate parental rights, or upholding the developmental delay?
decision, but sending it back to the lower court so it can 3. Is parental IQ score, 0 = No
fix a procedural problem). Each item was assigned a percentile score, level of 1 = Yes
scoring legend to simplify data entry. The cases were delay (borderline, mild,
analysed by the first and second authors. Overall, the first moderate, severe) or mental
author surveyed all of the cases using the checklist in age provided?
Table 1. The second author, who was blind to the first 3a. If ‘yes’, what is provided 0 = N/A
author’s scoring of the checklist, used the same checklist the parental IQ score, 1 = Borderline
percentile score, level of 2 = Mild
to survey 10 (24%) of cases chosen at random to assess
delay (borderline, mild, 3 = Moderate
inter-rater agreement. An agreement was scored if both
moderate, severe) or mental age? 4 = Severe
authors had identical scores on items on the checklist in
5 = Other (incl. Grade
Table 1. Inter-rater agreement was calculated as the total level, mental age,
number of agreements divided by total number of combination of
agreements plus disagreements. The overall agreement borderline & mild)
was 80% (calculated by the first author). 4. Was the termination upheld? 0 = No
1 = Yes
2 = Yes, conditional
Results on curing of
Table 2 presents a summary of parent characteristics procedural defect by
lower court
of the 49 parents identified with intellectual and
5. Gender 0 = Female
developmental disabilities in the 42 court cases. All
1 = Male
cases surveyed included discussion of intellectual and
6. State
developmental disabilities status. The court gave
specific intellectual and developmental disabilities
level ranges for 74% of the parents (36/49 parents) –
11, 17, 4, 0 were labelled as having borderline, mild, represented in the cases had legislation that included
moderate, or severe intellectual disability, language allowing disability status to be considered in
respectively. The present authors labelled nine termination of parental rights cases. The other four states
parents as ‘other’ because the present authors could had legislation that neither expressly permitted nor
not surmise a clear level of intellectual disability prohibited consideration of parental disability in
from the documentation (although cognitive disability termination of parental rights cases (National Council on
was mentioned). In 33% of the cases (14/42), the Disability, 2012, Appendix B, State-By-State Analysis of
court included an actual numeric IQ score either Dependency Statutes and Their Inclusion of Disability).
alone or in addition to a second or third IQ score, a Only one of the 42 cases (2%) appealing termination
percentile score, level of delay or mental age. of parental rights was overturned by the court. Seven
Of the 36 cases (86%) in which a court referenced in cases (17%) were remanded back to the lower court to
evidence a measure of cognitive ability (IQ score, fix a procedural error not related to disability, after
percentile score, level of delay, mental age), 5, 6 and 24 which time the termination of parental rights would be
cases involved two parents, father only or mother only effective. Ultimately, 81% (34) TPR decisions were
identified as having cognitive disability, respectively. upheld (see Table 3 for a summary of case
From the 42 most recent appeal of TPR cases identified characteristics). Some judges did note that a label of
involving parents with intellectual and developmental intellectual and developmental disabilities was
disabilities, 30% (15 of 50) of American states were insufficient to terminate rights. In one case, a judge
represented in the sample. Eleven US states of the 15 admonished the State that asserting a parent could not

© 2016 John Wiley & Sons Ltd, 30, 553–562

 Journal of Applied Research in Intellectual Disabilities 557

Table 2 Summary of parent characteristics

Measure Result

Court reference evidence of parental IQ score, 86% (36 of 42 cases)

a percentile score, level of delay or mental age
Court referenced actual IQ number with or without percentile 33% (14 of 42 cases)
score, level of delay or mental age
Parental IQ score (or equivalent) provided 66% clearly stated; 12%
unclear/mixed
Mean IQ standard score of parents 68.5, mild
Breakdown of intellectual disability level of the 45 26% Borderline (70–84)
parents for whom scores were provided in the 39 40% mild (55–69)
cases where court referenced evidence of parental IQ 10%% moderate (40–54)
score, a percentile score, level of delay or mental age. 21% other (indeterminable)

benefit from services based on intellectual and
developmental disabilities merely ‘beg[ged] the question
until the parents actually [are] provided services’.4
However, most of the case discussions revealed that
judges accepted the assertion that parents with
intellectual and developmental disabilities would not be
able to successfully parent due at least in part to their
cognitive limitations, as seen in the excerpts below:
TDB case: [mildly impaired mother for whom no
accommodated supports provided] “. . .no evidence
that services. . .were reasonably available or would
have been effective. . .”
YEZ case: [mildly impaired mother arguing against
TPR based on lack of specialized services] “an
agency isn’t required to exhaust any and all
resources. . .readily apparent that only
accommodation that could help mother. . .[is]
support staff 24 h a day. . .”
TM case: [borderline impaired mother] “. . .mother’s
risk factors [included] possible low intellectual
functioning which would impair her ability to learn
new skills.”
LOP case: [mildly impaired mother with IQ of 66]
“. . .Dr. Kohen opined respondent’s “cognitive
deficits put a low ceiling on what she [was] capable
of learning and doing. . .”
4
In re A.M. et al. v. D.J. et al., Cal.Rptr.3d (2012).
Table 3 Summary of case characteristics
Measure Result
Parent configuration in 36 cases Both parents = 5
where Court reference evidence of Father only = 6
parental IQ score, a percentile score, Mother only = 24
level of delay or mental age
in the decision.
Number of US States represented 15 (30%)
Outcomes of appeals of termination 81% upheld; 17% upheld
of parental rights decisions conditional on
procedural cure; 2%
overturned
Legislation allowing consideration 100%
of parental disability
David R case: [borderline impaired father with IQ
of 77] “. . .he was unable to discharge his parental
responsibilities due to mental impairment, mental
illness, or mental retardation. . .”
AJ case: [borderline impaired mother with IQ in
the 70s] “. . .respondent’s dependent personality
disorder, a consequence of her low cognitive
functioning, would lead to dependence upon
others to assist her with basic aspects of
parenting. . .”
AR case: [mildly impaired mother denied
reunification services prior to TPR] “. . .functioning
in the mild range of retardation. . .ability to take
care of a child is extremely low. . .she would not
benefit from services. . .”

© 2016 John Wiley & Sons Ltd, 30, 553–562

558 Journal of Applied Research in Intellectual Disabilities
The above commentaries by appellate judges were
given in cases where evidence-based evaluation and
interventions designed for parents with intellectual and
developmental disabilities were not provided during the
child welfare case and prior to termination of parental
rights by the trial court. Only a few cases contain
discussion of what may have been considered best
practice for assessment and intervention such as
examining contextual factors like social support and
offering home-based and individualized behaviourally
based parent training (Feldman & Aunos 2010); in fact,
the term ‘evidence based’ was not used in any of the
proceedings.
Discussion
This analysis of 2010–2014 US appellate-level court
proceedings revealed that dependency courts utilized
parental IQ as a measure to predict parenting capacity
in TPR cases involving parents with intellectual and
developmental disabilities. All the higher courts
adopted lower court findings that the parents were
intellectual and developmental disabilities. In
particular, 86% of American appellate court cases
involving parents with intellectual and developmental
disabilities devoted time and written decision space to
discussing the parental IQ and IQ ranges of parents,
reflecting this practice at the lower court level. The
appellate court only overturned dependency cases that
included parental intellectual and developmental
disabilities and reliance on parental IQ 2.3% of the
time (i.e. in just one of 42 cases). In comparison, a
recent American study found a 12% reversal rate (of
the trial court decision) in 200 dependency court cases
sampled over a recent 4-year period (Rawlings 2015).
In general, the success rate of defendant appeals in
the American courts is 9% in bench (non-jury) trials
(Waters 2007).
The present authors also found that most
parents with intellectual and developmental
disabilities in TPR cases were mothers, which is
consistent with previous literature on child
protection proceedings for parents with intellectual
and developmental disabilities (e.g. McConnell
et al. 2011). Court decisions often did not include
discussion of how parental supports could be
provided to address parenting skill deficits and
instead tended to reflect a view of parenting
capacity and skills as static or unchanging, and
not amenable to intervention. This view revealed
the persistent negative attitudes towards parenting
with intellectual and developmental disabilities
and the ongoing false presumption that intellectual
disability on its own necessarily leads to poor
parenting and puts children at risk of behavioural,
emotional and physical health problems (Feldman
et al. 2012).
US laws5 require that trial and appellate courts
consider the scientific soundness of evidence presented
in trials, and there is no stated exception for trials
where the state seeks to terminate parental rights.
Nonetheless, our results suggest that child welfare and
dependency systems have continued to rely on IQ-
based parenting evaluations to justify termination of
parental rights despite the fact that such reliance is
suboptimal and not evidence based. It is particularly
troubling as it is occurring at a time when reliance on
IQ has been found inappropriate in other legal
proceeds concerning significant civil rights: the USA
has banned the use of IQ to justify pre-emption of
parental rights (involuntary sterilization)6 , and the US
Supreme Court has held that IQ is an unreliable
predictor of capacity in the context of death penalty
proceedings.7
Limitations
The primary limitation in this study is that the overall
number of cases that qualified for this study since 1999 is
small. Limited resources precluded an in-depth analysis
of relevant US cases before 2010 and trial cases. Our
focus was on whether when IQ evidence was presented,
the court relied on it in analysing the propriety of a TPR.
The present authors excluded cases involving children
5
The Court reached its standard in what is referred to as the
Daubert trilogy: Daubert v. Merrell Dow Pharm., Inc., 951 F.2d
1128, 1129–30 (9th Cir. 1991); Frye v. United States, 292 F. 1013
(D.C. Cir. 1923); Kumho Tire Co. v. Carmichael, 525 US 959
(1999).
6
E. v. Eve, 2 S.C.R. 388 (1986); while the United States does not
have one key case on this point, the first case to find that
involuntary sterilization of a class was obnoxious to the
constitution was Skinner v. Oklahoma ex rel. Williamson, 316
US 535 (1942). Although Skinner did not directly address the
issue of forced sterilization of people with disabilities, its
reasoning undermines the rationale of the case that established
as constitutional state forced sterilization laws – Buck v. Bell –
and it led to the general prohibition of such laws and the
enactment of procedural safeguards before sterilization of
people in institutional settings.
7
Hall v. Florida, 134 S.Ct. 1986 (2014).
© 2016 John Wiley & Sons Ltd, 30, 553–562

with intellectual and developmental disabilities or where
there was a termination proceeding pending that did not
proceed because a custody arrangement was chosen that
did not involve termination of parenting rights. Our
reasoning for using appellate-level cases was that in the
USA, trial-level cases are not published, meaning that they
are not available to the public or even to subscribers to
private database systems without the incurrence of
significant costs.
Future research
The present study is a preliminary step to establish the
prevalence of judicial consideration of parental IQ at the
appellate level, which reflects the prevalence and
centrality of its evidentiary role at the trial level. It would
be beneficial to expand this study to a two-tiered
investigation in the USA analysing first the treatment of
IQ evidence at the trial level and then analysing the
outcome at the appellate level. A comparison of decisions
employing this study’s checklist before and after the new
USDOJ and USDHHS (2015a,b) guidelines discouraging
reliance on IQ to establish parenting capacity in TPR
cases could help to evaluate the impact of the guidelines.
Expanding the current research to include a
document research on the parental capacity decision-
making process in Canada would more easily allow for
this two-stage approach at little expense as all trial cases
are published in Canada. Moreover, Canadian decisions
likely would not be impacted by the 2015 US guidelines,
and thus, Canadian decisions after 2015 could serve as a
comparison set to measure the effects of the US
Guidelines on US cases.
More research is needed on how parental labelling
as intellectual and developmental disabilities, parental
IQ ranges or scores were derived, upon which the
decision to terminate parental rights was made. This
point is not discussed within appellate decisions, as a
majority (81%) of them uphold the trial court’s
decision, without further analysis of the parents’
situation and without verifying assessment results/
interpretations sent by the lower court judge.
Moreover, further investigation should be made on
exactly how frequently evidence-based practices were
used for evaluation of parenting skills deficits of
parents with intellectual and developmental disabilities
and whether they present differential outcomes for
families than using parental IQ as a measure of
parenting capacity. Furthermore, although the present
authors may assume that parents with intellectual and
developmental disabilities are more likely to have
© 2016 John Wiley & Sons Ltd, 30, 553–562
Journal of Applied Research in Intellectual Disabilities 559
parental rights terminated, it is not yet known how
often typical parents or parents with other disabilities
are successful in appealing a lower court’s decision to
terminate parental rights – that is, if it is higher or
lower than the general 9% success rate for all civil
bench trials, or 12% in dependency court appeals of
TPR (Rawlings 2015).
Implications and practice recommendations
Some would argue that it is unremarkable, even logical that
courts would rely on parental IQ as a measure for
parenting capacity where the parents have intellectual and
developmental disabilities. However, as experts in the field
have established that parental IQ is an unreliable indicator
of parenting capacity, why is reliance upon this personal
characteristic unremarkable or logical? The need to
interrogate the practice of conflating personal
characteristics with parental capacity becomes clear when
the present authors recall that only a few years ago societal
anxiety regarding homosexuality meant that it was
considered unremarkable and logical to discuss a parent’s
sexual orientation in child custody cases in many
jurisdictions (Patterson 2009; Haney-Caron & Heilbrun
2014).
The first step in ensuring the rights of parents with
intellectual and developmental disabilities in cases
where their parental rights are at stake is developing
capacity to provide, and awareness of the need to use,
comprehensive, competence-based parent capacity
assessments to avoid invalid reliance on IQ testing to
determine parental capacity. Feldman & Aunos (2010)
presented an interactional model of parenting that
allows for a contextual analysis of each family’s
unique situation. Instead of following a univariate
model of parenting (i.e. presumption that intellectual
and developmental disabilities directly affects
parenting which in turn affects child health, safety and
behaviour development), an interactional model
considers all factors at play, including both strengths
and barriers for each family. Moreover, an assessment
based on the interactional model includes
comprehensive assessment of internal and external
factors in addition to cognitive abilities.
Questionnaires/tests take into account literacy and
language abilities and use universal design principles
(e.g. simplified language). The interactional model also
recognizes that some tests may not be valid with
persons with cognitive limitations. Importantly,
competence-based assessments include extensive direct
observation of parenting skills and parent–child
560 Journal of Applied Research in Intellectual Disabilities
interactions in the natural environment using validated
checklists (e.g. Feldman & Case 1993).
Recommendations
Based on the results of the present study and other
research, some practice and training recommendations
are presented here for legal representatives of parents
with intellectual and developmental disabilities as well
as other parties involved in assessing parental capacity
in a TPR case:
1. Those who are tasked with representing parents with
intellectual disability (e.g. lawyers, advocates) need
to be given more training on their constituency and
how to understand the assessment issue and how to
strategically address it. Training in comprehensive,
competence-based parenting assessment (Feldman &
Aunos 2010) will be a cornerstone in successfully
representing parents with intellectual and
developmental disabilities as this facilitates
challenging the inappropriate use of IQ to determine
parenting capacity.
2. Lawyers at the trial level need to challenge parenting
capacity assessment methods that are suboptimal
using the civil evidence code (Daubert trilogy) and
advocate for evidence-based assessment methods (i.e.
interactional parenting model; Feldman & Aunos
2010) that follow ethical and professional standards
(e.g. American Psychological Association Committee
on Professional Practice and Standards, 1998).
Advocates need to understand how swayed courts
are by IQ testing and the fact that it is a poor
predictor of parenting capacity.
3. Appellate-level courts need to consider the validity of
assessment measures used at the trial level. When a TPR
case is appealed, a full review of assessment measures
and all variables affecting the family’s life, including
access to evidence-based interventions, must be
conducted before a fair decision can be rendered.
4. Both lower-level courts and high courts need to
recognize that not all parents with intellectual and
developmental disabilities are incapable of parenting,
nor are all parents with intellectual and
developmental disabilities good parents, just like the
general population. Drawing an unsupported
generalization across all parents with intellectual and
developmental disabilities undermines the validity of
the decision. Care should be taken not to hold
parents with intellectual and developmental
disabilities to higher standards than the general
population (e.g. they must prove capable of
parenting totally independently or can never make a
mistake).
5. Judges need to be more prudent in their role as
evidence ‘gatekeepers’ appraising assessment results
and looking closely at assessment methods used
rather than simply defaulting to the lower court’s
decision unless there is a procedural error,
particularly when TPR occurs at the birth of the
child.
6. Finally, legislators/policy makers in the individual
American states should follow the lead of the US
Depts. of Justice and of Health and Human Services
and issue formal statements reflecting the literature
in the field in holding that parental IQ is a
suboptimal measure of parenting capacity and
reliance on same is antagonistic to disability
antidiscrimination laws.
Conclusion
In summary, this study found that in a majority of US
cases involving a parent with intellectual and
developmental disabilities, appealing a termination of
their parental rights, parental IQ or intellectual
functioning range often was considered and relied upon
by the court in upholding the decision. The rate of
reversal was far lower than the dependency and general
civil bench trial rates of reversal. It is worrying that
while every decision was reasoned differently, and all
cases had multiple issues, the courts consistently
considered parental IQ, rarely reviewed evaluation
methods and results and frequently made statements
that reflected a view of parental IQ as static, fixed and
necessarily undermining of parenting capacity and
ability to learn. Such continuing judicial reliance on
parental IQ to predict parenting capacity seems out of
synch with the state of the literature, Article 23 of the
UNCRPD, and federal interpretative documents and
legislation in the USA. It is crucial that judges,
attorneys, parenting evaluators and other professionals
involved in child welfare cases are better educated
regarding proper assessment of the parenting capacity
of individuals with intellectual and developmental
disabilities. It is particularly important that they are made
aware of the limited utility of IQ testing in assessing
parental capacity with this population of people.
Correspondence
Any correspondence should be directed to Ella Callow,
National Center for Parents with Disabilities and their
© 2016 John Wiley & Sons Ltd, 30, 553–562
 Journal of Applied Research in Intellectual Disabilities 561

Families, 3075 Adeline Street, Ste. 102, Berkeley, CA Fine T. (1997) American Legal Systems: A Resource and Reference
94703, USA (e-mail: ecallow@lookingglass.org). Guide. Anderson, Cincinnati, OH.
Glazemakers I. & Deboutte D. (2013) Modifying the ‘Positive
Parenting Program’ for parents with intellectual disabilities.
References Journal of Intellectual Disability Research 57, 616–626.
Haney-Caron E. & Heilbrun K. (2014) Lesbian and gay parents
Ackerman M. J. & Pritzl T. B. (2011) Child custody evaluation
and determinations of child custody: the changing legal
practices: a 20-year follow-up. Family Court Review 49, 618–
landscape and implications for policy and practice. Psychology
628.
of Sexual Orientation and Gender Diversity 1, 19–29.
Alexius K. & Hollander A. (2014) Care assessments concerning
Harnett P. H. (2007) A procedure for assessing parents’
involuntary removal of children from intellectually disabled
capacity for change in child protection cases. Children and
parents. Journal of Social Welfare and Family Law 36, 295–310.
Youth Services Review 29, 1179–1188.
American Psychological Association Committee on Professional
Hodes M. W., Meppelder H. M., Schuengel C. & Kef S. (2014)
Practice and Standards. (1998) Guidelines for Psychological
Tailoring a video feedback intervention for sensitive
Evaluations in Child Protection Matters. Washington, DC:
discipline to parents with intellectual disabilities: a process
American Psychological Association.
evaluation. Attachment & Human Development 16, 387–401.
Americans with Disability Act (1990) Available at: http://
Kempton W. & Kahn E. (1991) Sexuality and people with
www.ada.gov/ (accessed on 29 Nov 2015)
intellectual disabilities: a historical perspective. Sexuality and
Aunos M. & Feldman M. A. (2002) Attitudes towards sexuality,
Disability 9, 93–111.
sterilization, and parenting rights with persons with
Lightfoot E. & Slayter E. (2014) Disentangling over-
intellectual disabilities. Journal of Applied Research in
representation of parents with disabilities. Children and Youth
Intellectual Disabilities 15, 285–296.
Services Review 47, 283–290.
Aunos M., Goupil G. & Feldman M. A. (2003) Mothers with
McConnell D., Feldman M. A., Aunos M. & Prasad N. (2011)
intellectual disabilities who do or do not have custody of
Parental cognitive impairment and child maltreatment in
their children. Journal on Developmental Disabilities 10, 65–
Canada. Child Abuse & Neglect 35, 621–632.
80.
McGaw S., Scully T. & Pritchard C. (2010) Predicting the
Azar S. T., Stevenson M. T. & Johnson D. R. (2012) Intellectual
unpredictable? Identifying high-risk versus low-risk parents
disabilities and neglectful parenting: preliminary findings on
with intellectual disabilities. Child Abuse and Neglect 34, 699–
the role of cognition in parenting risk. Journal of Mental Health
710.
Research in Intellectual Disabilities 5, 94–129.
National Council on Disability (2012) National disability policy:
Booth T., Booth W. & McConnell D. (2005) The prevalence and
A progress report. Available at: https://www.ncd.gov/
outcomes of care proceedings involving parents with learning
progress_reports/Aug202012 (accessed on 29 Nov 2015)
difficulties in the family courts. Journal of Applied Research in
Patterson C. J. (2009) Lesbian and gay parents and their
Intellectual Disabilities 18, 7–17.
children: a social science perspective. In: Contemporary
Callow E., Buckland K. & Jones S. (2011) Parents with
Perspectives on Lesbian, Gay, and Bisexual Identities (Nebraska
disabilities in the United States: prevalence, perspectives and
Symposium on Motivation. Vol. 54 (ed Hope DA) pp. 141–182.
a proposal for legislative change to protect the right to family
Springer, New York.
in the disability community. Texas Journal on Civil Liberties &
Proctor S. N. & Azar S. T. (2013) The effect of parental
Civil Rights 17, 9–41.
intellectual disability status on child protection service
Feldman M. A. (1994) Parenting education for parents with
worker decision making. Journal of Intellectual Disability
intellectual disabilities: a review of outcome studies. Research
Research 57, 1104–1116.
in Developmental Disabilities 15, 299–302.
Rawlings T.C. (2015) Discretionary appeals from juvenile court
Feldman M. A. (2010) Parenting education programs. In: Parents
TPR cases: a 10-year retrospective, and a look to the future. on file
With Intellectual Disabilities: past, Present and Futures (eds
with Emory University School of Law, and with the author,
Llewellyn G, Traustad ottir R, McConnell D & Bj€ org
Atlanta, Georgia.
Sigurjonsdottir H) pp. 121–136. Wiley-Blackwell, Chichester, UK.
Reinders H. (2008) The transformation of human services.
Feldman M. A. & Aunos M. (2010) Comprehensive Competence-
Journal of Intellectual Disability Research 52, 564–572.
Based Parenting Capacity Assessment for Parents With Learning
Rioux M. H., Basser L. A. & Jones M. (eds.) (2011) Critical
Difficulties. NADD Press, Kingston, NY.
Perspectives on Human Rights and Disability law. Martinus
Feldman M. A. & Case L. (1993) Step-by-Step Child-Care: A
Nijhoff Publishers, Leiden, Netherlands.
Pictorial Manual for Parents, Child-Care Workers, and Babysitters.
Singh S., Piescher K.N., LaLiberte T., Lightfoot E. & Hong S.
Authors, Toronto.
(2012) Parental Disability and Termination of Parental Rights in
Feldman M., McConnell D. & Aunos M. (2012) Parental
Child Welfare. Minn-LInK Brief No. 12, Center for Advanced
cognitive impairment, mental health, and child outcomes in a
Studies in Child Welfare, University of Minnesota, St. Paul,
child protection population. Journal of Mental Health in
MN.
Intellectual Disabilities 5, 66–90.

© 2016 John Wiley & Sons Ltd, 30, 553–562

562 Journal of Applied Research in Intellectual Disabilities
Tahir M., Sword C. & Feldman M. A. (2015) Evaluation of a
game-based parent education intervention to increase
positive parent-child interactions in parents with learning
difficulties. Behavior Analysis: Research and Practice 15, 187–200.
United Nations (2006) Convention on the rights of persons with
disabilities. Available at: http://www.un.org/disabilities/
convention/conventionfull.shtml (accessed on 29 Nov 2015)
US Department of Justice and US Department of Health and
Human Services (2015a) Letter of Findings, DJ No. 204-36-216,
Civil Rights Division and HHS No. 14-182176. Washington,
D.C: Office of Civil Rights. Available at: https://
www.ada.gov/ma_docf_lof.pdf (accessed on 27 Aug 2016)
US Department of Justice and US Department of Health and
Human Services (2015b) Protecting the rights of parents and
prospective parents with disabilities: technical assistance for state
and local child welfare agencies and courts under Title II of the
Americans with Disabilities Act and Section 504 of the
Rehabilitation Act. Civil Rights Sector and Administration for
Children and Families Office of Civil Rights, Washington,
D.C., Available at: https://www.ada.gov/doj_hhs_ta/
child_welfare_ta.html (accessed on 27 Aug 2016)
Wade C., Llewellyn G. & Matthews J. (2008) Review of parent
training interventions for parents with intellectual disability.
Journal of Applied Research in Intellectual Disabilities 21, 351–
366.
Waters N. L. (2007) Court statistics project: caseload highlights:
civil trials on appeal. Examining the Work of the State Courts
14, 1–6.
Zumbach J. & Koglin U. (2015) Psychological evaluations in
family law proceedings: a systematic review of the
contemporary literature. Professional Psychology: Research and
Practice 46, 221–234.
© 2016 John Wiley & Sons Ltd, 30, 553–562