Relates to the permanent termination of parental rights for reason of mental illness or mental retardation; repealer

Summary of provisions

Section 1 of the bill amends section 384-b of the social services law by eliminating subsection c of subdivision 4 thereby removing from law mental illness and mental retardation as grounds for the termination of guardianship & child custody.

Section two of the bill repeals subdivision 6 of section 384-b of the social services law which defines the terms "mental illness" and "mental retardation" and explains the required court procedures, proscribed examinations and expert testimonies for verifying that an individual is mentally ill or mentally retarded.

Section three of the bill provides for an immediate effective date.

Justification

The termination of parental rights completely and irrevocably severs a parent's right to custody as well as the right to ever visit, communicate with, or regain custody of his or her child. Parents with disabilities are particularly vulnerable to loss of custody and termination of parental rights due to preconceived notions about their ability to parent and the focus on their diagnosis or condition, rather than their behavior, i.e. ability to parent. Research shows an alarming rate of custody loss among parents with psychiatric or intellectual disabilities - as high as 80%. Statewide, about one-fourth of foster care placements involve at least one parent with a serious mental health problem.

The Social Services Law, as amended in 1976, includes the following grounds for termination of parental rights: abandonment; permanent neglect; severe and repeated abuse; and inability by reason of mental illness or mental retardation to provide proper and adequate care. The statute is discriminatory because it explicitly and unnecessarily incorporates disability-related grounds for termination of parental rights.

Though disability alone is not justification for termination of parent rights, the major concern is that the explicit inclusion of disability grounds unfairly allows a shift in the focus from a parent's behavior to a parent's diagnosis or condition. Under the current statute, parents suffer from a presumption of unfitness. However, recent research has found that parents with disabilities are not more likely to maltreat their children than parents without

disabilities. While psychiatric or intellectual disability may be a contributing factor to a parents behavior, there are many other factors that can be contributing which are not singled out in statute. Rather it is the behavior itself which should be the basis for termination of parental rights, not the condition.

Parents with disabilities are not given the same chance as other parents to address the issues that led to the removal of their children. The law discriminates against parents with psychiatric or intellectual disability by not requiring the Department of Social Services (DSS) agency to show that it made diligent efforts to reunite the family. In contrast, under permanent neglect grounds, the threshold issue is whether the agency made diligent efforts. Only upon that showing, the court then considers whether the parent failed to plan for the future of the child.

Without separate disability-related grounds, the current law would still sufficiently protect the safety of children. Permanent neglect encompasses a parent's failure to plan for the future of the child, despite the DSS agency's diligent efforts to strengthen the parental relationship. In fact, the ground of permanent neglect is often utilized in cases where a parent's disability is contributing to the child's neglect. Disability grounds, when used separately, unfairly allow the agency to dispense with diligent effort and focus on surrender of termination, rather than fulfill their obligation to help keep families together.

Having disability related grounds for termination of parent rights can in fact cause more harm, as parents forgo treatment for fear that a history of treatment can lead to losing their children. Dramatic progress has been made in psychiatric treatment and medications, as well as in parenting education methods for parents with disabilities since this law was first enacted. The law should be changed to reflect such progress and allow parents with disabilities the chance to become better parents with proper treatment and services.

Family preservation is an important goal under the social services law. A focus on proper preventive or unification services for families with disabilities will likely decrease foster care placements, thereby saving the state money and even more importantly sparing families the trauma associated with unnecessary foster care.

New York State should act to remove this discriminatory section of the statute in order to remove the biases, the disincentive for parents to seek treatment and ultimately the unnecessary placement of some children in foster care and lack of adequate reunification efforts.

Legislative history

2009/10: S.2835 - Died in Children and Families; A.6668.

Fiscal implications

None.

Effective date

Immediately.