By Sheila Pursglove
Legal News
The child welfare system is not well equipped to work with parents with disabilities—and these parents encounter the system at a disproportionate rate, according to Joshua Kay, a clinical assistant professor of law in the University of Michigan Child Advocacy Law Clinic.
“The services that might address issues in some families might not be a good fit for parents with disabilities, particularly parents with mental illness or cognitive problems,” he notes.
“My work has often centered around educating child welfare case workers about what my client needs in order to have the best chance of successfully reuniting with his or her child, whether that be one-on-one parenting skills training, in-home therapy, information presented more than once, etc. In court, the applicability of the Americans with Disabilities Act is something that I seek to raise and discuss in these cases so that my clients have the protection to which they are entitled under the law.”
He also has worked to help families where a child has a psychiatric disability that includes severe behavioral challenges. If a family can’t afford private mental health care, they need to access the public mental health system, he notes—and if that doesn’t lead to good results, these families can end up calling the Department of Human Services for assistance, and that can lead to Children’s Protective Services involvement.
“Now they could face loss of custody of their child or children, listing on the Central Registry as neglectful parents, and a possible court case,” he says. “In such cases, it may be that the mental health agency has violated Medicaid regulations, and services can be negotiated that can keep the case out of the child welfare system.”
In a case in Wayne County, a parent called, desperate to get her child services and deal successfully with a pending child welfare court case. Kay negotiated an agreement with the mental health agency and worked with the parent’s attorney and the child’s lawyer-guardian ad litem to come into juvenile court—with the mental health agency case workers—to present the judge with the negotiated agreement, and get the child welfare case dismissed.
“It wasn’t that the parent was neglectful—the child had significant needs, and the system that was supposed to help meet those needs was not doing so,” he says. “No child welfare action was necessary. Instead, the public mental health system had to meet Medicaid requirements and provide services, and I just worked to get that on track.”
At the U-M Child Advocacy Law Clinic—a litigation clinic centered on child abuse and neglect cases—students work under supervision representing children, parents, or the Department of Human Services, depending on the county where the case is. Students have primary responsibility for all aspects of casework, including investigation, witness and client interviewing, client counseling, negotiation, drafting and filing legal documents, and oral advocacy in court.
“They also learn a lot about child welfare law and policy, though feedback from the students shows they gain lawyering skills that are applicable no matter what area of law they eventually practice,” Kay says. “We try to give them a complete experience of the day-to-day work of an attorney litigating cases.”
Kay, who has conducted numerous trainings for child welfare workers, judges, and attorneys representing parents and children, has been teaching at U-M Law for 3-1/2 years.
“I love working with the students and watching as they develop their legal skills and greater confidence,” he says. “When I look back with them at how far they’ve come over the course of a semester they—and I—take great satisfaction in that. I also love working with my colleagues, who are truly excellent lawyers and teachers.”
Last semester, Kay also launched the Domestic Relations Mediation Clinic with colleague Nicole Appleberry, to provide students with training in divorce mediation. After undergoing the complete training required by the State Court Administrative Office, the students mediate divorce cases, either pre- or post-judgment.
“As in any clinic, the students are under faculty supervision, and we spend a lot of time coaching them in mediation skills and debriefing after each session,” Kay says. “We have a wonderful partnership with the Washtenaw County Circuit Court, including the Friend of the Court office, which has greatly facilitated the students’ opportunities to mediate cases and work with different FOC mediators, judges, and court staff. In addition to mediation, the students learn a lot about how domestic relations cases move through the court system and the types of disputes that arise over the course of such a case.”
Drawn to the field of psychology by his interest in developing a greater understanding of how people think, how they respond to the world and learn new things, and how they deal with difficulties, Kay earned his bachelor’s degree with high honors and Phi Beta Kappa at Oberlin College in Ohio, where he received the R.H. Stetson Award in psychology and psychobiology.
“Most of all, I was interested in helping people with emotional issues, family problems, and the like, and psychology fit with my tendency to try to listen and really understand what people are going through,” he says.
The Los Angeles native then headed to Ann Arbor to earn his master’s degree and Ph.D. in psychology from U-M, where he was a Regents’ Fellow and served as an assistant professor of physical medicine and rehabilitation at the U-M Medical School, studying the effects of pediatric disability, and served as an attending psychologist in the Division of Rehabilitation Psychology and Neuropsychology in the Department of Physical Medicine and Rehabilitation.
In this position, Kay worked with children and their families on the in-patient services and as outpatients, providing psychotherapy and neuropsychological assessment services.
“It was very hard but very meaningful work, as these were kids with severe injuries or medical conditions, and they and their families were faced with significant life changes,” he says. “Sometimes they had years of experience and were coming in for outpatient follow-up, but often I started seeing them almost immediately after their injury or onset of their illness.”
A member of the ethics committee at C.S. Mott Children’s Hospital, he also taught courses in clinical assessment and supervised the clinical work of graduate students in the Department of Psychology.
Kay then earned his J.D., cum laude, from U-M Law, where he received the International Achievement Summit Award and the Craig Spangenberg Oral Advocacy Award.
“When I was a pediatric neuropsychologist, I worked with children who had complex, disabling conditions, most often closed head injury. I ended up advocating for them in the school setting to get them the services that they needed, and I became more and more interested in the legal issues that they and their families faced,” he explains. “Eventually, I decided I could serve them best as an attorney, and it became my primary interest.”
After law school, Kay joined Michigan Protection and Advocacy Service—a disability rights nonprofit—as a Skadden Fellow and staff attorney, representing parents with disabilities in child welfare cases, and assisting with other cases, such as housing discrimination, special education, and monitoring and correcting deficiencies in residential facilities (e.g. group homes) for children.
“It was a fantastic experience, and I benefited from terrific mentorship there,” he says.
He also received a Certificate of Appreciation from the U-M Council for Disability Concerns for his representation of parents with disabilities in child welfare matters.
“I was really touched to have my legal work in child welfare cases on behalf of parents with disabilities recognized by the (U-M) Council,” he says. “The best aspect of it was going to the awards ceremony and hearing what others are doing all over the state to address disability concerns.”
Kay and his wife—who is also a psychologist, with a private practice in Ann Arbor—have an 11-year-old daughter and 9-year-old son.
In his leisure time, Kay is an avid cyclist and also enjoys playing guitar.
“And for a number of years, I served on the local and then state board of the ACLU of Michigan, though I’m taking a break from that to focus on my work and family,” he says.
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