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The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract

The opioid crisis has disrupted parent-child relationships across the United States. While states actively seek to remove children from households with current drug use in order to protect the children, state entities often fail to protect the parent-child relationship itself by imposing counterproductive policies and stereotypes on parents who are in treatment for their drug use, which makes maintaining "recovery" and parental rights an uphill battle. This note argues that the Americans with Disabilities Act (ADA) provides a novel path to root out discrimination in child abuse and neglect proceedings against parents who either take prescribed buprenorphine or are interested in pursuing that course of treatment for their opioid use disorder (OUD). There has never been a successful litigation challenge to the denial of medication for opioid use disorder (MOUD) by child welfare actors, but to promote parental reunifications and prevent parental termination, application of the federal law to both written and unwritten policies in the child welfare system is necessary. Part I discusses the effects of opioid use disorder on the child welfare system, and how MOUD as treatment is stigmatized by the child welfare-involved entities, including the judicial system, Guardian Ad litems, and child protective services. Part II offers a solution to use the ADA to prevent the systemic denial of MOUD use for child welfare-involved parents, and Part III discusses how the ADA can be applied in child abuse and neglect proceedings to increase MOUD access. The article concludes by calling on states to reconsider how they handle parental drug use in general in the child welfare system, even when parents are not covered by the ADA.

The author has a plethora of experiences working with people with disabilities in the government, in non-profits, and in the community. She seeks to create a discussion about how society views “recovery” and explain how a broader definition of “recovery” would ultimately reduce stigma and the barriers faced by those in MOUD treatment and those considering MOUD as an alternative to abstinence. In addition, the application of the ADA to the child welfare system will help decrease overdoses and keep families together.

Last Page

339

First Page

283

Journal Title

The Scholar: St. Mary's Law Review on Race and Social Justice

Volume Number

26

Issue Number

3

Publisher

St. Mary's University School of Law

ISSN

1537-405X

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