June 5, 2009

Termination of Parental Rights Bill Update

MHANYS and many other mental health and disability advocacy groups across New York State have worked this session for legislation that will eliminate 384 B of Social Services Law.

This law currently provides four grounds for the permanent relinquishment of parental rights--abuse, neglect, abandonment, and that the parents presently and for the foreseeable future are unable, by reason of mental illness or mental retardation to provide proper and adequate care. The proposed legislation introduced by Senator Huntley and Assemblyman Rivera would eliminate the mental illness/mental retardation provision from the grounds for permanent relinquishment. We have many people who have come to us through our Parents with Psychiatric Disabilities project and have told us about the discrimination they have faced because of the termination of their rights as parents solely because of their diagnosis.

Over 40 organizations have signed on in support of this legislation.

With only a few weeks left in Legislative Session, it will be a difficult battle to eliminate 384-B, but we will continue to advocate for this change.

Concurrent with our advocacy, the legislative sponsors of our bill, Senator Huntley and Assemblyman Rivera have asked the four state agencies most involved with this issue---The Office of Children and Family Services, The Office of Mental Health, The Office of Mental Retardation and Development Disabilities and The Commission on Quality of Care to work with advocates and other stakeholders to come up with a series of recommendations and report to the Legislature by January 15, 2010.. Through the Judiciary, they have also asked the Office of Court Administration to participate as well.

We will be advocating that these agencies to meet with stakeholder groups and discuss strategies that not only will call for the elimination of 384-B but for other reforms regarding the delivery system for Parents with Psychiatric Disabilities.

Listed below is the document our coalition put together in support of the elimination of 384-B as well as a recent article about the proposed legislation.

We also have a list of agencies that have signed on in support. If you would like to be added to this list, please let us know!

Why New York State must Eliminate Mental Illness and Mental Retardation as Grounds for

Termination of Parental Rights (S. 2835, A. 6668)

Preamble

In the 1970’s, when the termination of parental rights bill was signed into law (Social Services Law, Sec.384-b), there were four grounds listed for the permanent relinquishment of parent’s rights:

The grounds were:

1) Abandonment

2) Permanent Neglect

3) Severe and Repeated Abuse

4) The Parents are presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for a child who has been in care of an authorized agency for a period of one year.

When these grounds were crafted in 1975, it would have been difficult to predict the changes that have taken place over the last thirty-five years for individuals with psychiatric disabilities and developmental disabilities.

The thought process in 1975 was that these are static conditions that could not be changed. As we know now, nothing could be further from the truth. With a greater understanding of psychiatric disabilities, the recovery movement, individualized services and better medications, people are moving forward in their lives and are fully integrated into the community. There is no evidence that suggests that a child is in any more danger with a parent with a psychiatric disability then with a parent without a diagnosis. In addition, people with mental retardation have time and time again demonstrated their ability to learn and utilize life skills, including parenting, despite their cognitive limitations.

To use mental illness as grounds for permanent termination is an archaic vestige of an outmoded and discredited view of mental disabilities still reflected by a law written almost forty years ago. It is also a discriminatory practice that treats people with psychiatric disabilities and developmental disabilities as second-class citizens without the same rights as individuals without these disabilities.

The proposed elimination of these grounds is not a condemnation of local Social Service districts, CPS workers or Family Court Judges. Undoubtedly, most people in the field are trying to do the right thing in preventing child abuse and attempting to reunify families when possible. Getting rid of mental illness and mental retardation as grounds for termination of parental rights should not in any way negatively impact their work. It will solely provide equal rights and responsibilities to all parents.

Three Principles

There are three principles that clearly identify why grounds of mental illness and mental retardation should be eliminated from current law regarding parental termination.

1) Parents with Psychiatric Disabilities are Currently Afforded Inferior Due Process Rights and Services

Parents with psychiatric disabilities and parents with developmental disabilities are not afforded the same due process as other parents who lose custody because of other grounds.

Under the grounds of permanent neglect, the DSS agency must show that it made diligent efforts to reunite the family. The same due process and requite services are not afforded families with psychiatric disabilities.

The Court of Appeals held that in a proceeding to terminate parental rights on the basis of permanent neglect, the agency has a statutory duty to show the court that ‘it has exercised diligent efforts to encourage and strengthen the parental relationship.’ Case law has repeatedly determined that this duty is excused if the agency has previously determined that reasonable efforts are not required. In contrast, there is no statutory duty to provide reunification services when the termination is on the basis of mental illness or mental retardation and case law has repeatedly held that when a proceeding to terminate parental rights is brought on the basis of mental illness or mental retardation, the agency has no duty to present evidence of its diligent efforts to encourage the parental relationship.

When termination is brought on the basis of permanent neglect, a two-part determination is required. In the first stage, the Court must determine the parent’s capacity, which includes considering what measures the state has taken to maintain the family. In the second stage, there is a dispositional hearing, during which the court determines whether return to the parental home is in the best interest of the children. However, when termination of parental rights is on the basis of mental illness or mental retardation, no dispositional hearing is required.

Psychiatric illnesses are now understood to be biochemical disorders, similar to heart disease, diabetes and cancer and success rates for the treatment of some mental illnesses are higher then the success rates for the treatment of other medical disorders. The passage of over thirty years has created a new landscape and made it clear that it is almost never reasonable to presume incapacity far into the future on the basis of a mental illness.

In addition, there are areas of the state, where a parent with psychiatric disability has to wait long periods for a psychiatric evaluation due to the dearth of psychiatrists and psychologists. As a result, they are losing vital months of bonding with their child while waiting for the evaluation.

2) Countless Individuals with Psychiatric Disabilities are Impacted by this Law

By their own admission, the Public Welfare Association estimates that in 2008 about 9% of TPR petitions were on the grounds of mental illness. That number is close to 300 people in New York State (which is a dramatic increase of almost 25% from 2007).

This number does not include the countless individuals who were coerced into voluntary surrender of their parental rights using the current law, or individuals who refuse to acknowledge the illness or seek treatment for fear that the revelation of their mental illness would jeopardize their parental rights. As a result, people who want and need treatment are not getting it, which helps neither them nor their children.

3) Much of Case Law was Determined Prior to ADA

Opponents of the proposed change argue that case law has consistently supported lower courts determinations regarding the affirmation of parental termination. Many of these court determinations were cited from the 1980’s prior to the American’s with Disabilities Act (ADA). Even if these cases were correctly decided, which many dispute, they merely determined that the law met minimum Constitutional requirements. Constitutional requirements are a minimum, a floor instead of a ceiling. The fact that a law meets the minimal standard does not make it a wise law or sound policy. In addition, under Title II of the Americans with Disabilities Act of 1990, parents with disabilities cannot be subject to discriminatory practice by state or local government. Singling parents with mental disabilities out for ‘special’ treatment in the TPR process is discriminatory.

Conclusion:

Opponents of this change claim that the initial ground for temporary loss does not include mental illness therefore the law does not discriminate against people with mental illness.

The fact that during the year when the child is in foster care, the parent with a psychiatric disability has to prove they are worthy of keeping their child based on a psychiatric evaluation (which may take months) and a treatment plan in which the services may not exist is discriminatory. Nor is it fair that the psychiatric evaluation does not provide the same due process rights given to all other parents when faced with the loss of their children due to alleged neglect or abuse.

If this bill were enacted into law, the three other grounds for termination would remain to protect interests of the child, which would continue to be the foremost priority. No longer would parents with psychiatric disabilities be treated as second-class citizens under New York State law. We have allowed this injustice to fester for too long.

Coalition Against Parental Termination Discrimination

Member List

• AIM Independent Living Center in Corning
• American Foundation of Suicide Prevention (Upstate New York Chapter)
• ARISE
• Brooklyn Center for Independence of the Disabled
• Capital Area Peer Services
• Center for Independence of the Disabled of New York
• Children and Parents Together
• Children’s Mental Health Coalition of Western New York
• Civil Rights and Disability Law Clinic of Albany Law School
• Disability Advocates
• Families On The Move of New York City, Inc.
• Families Together in New York State
• Finger Lakes Parent Network
• Geriatric Mental Health Alliance
• Independent Living Center of the Hudson Valley, Inc.
• Legal Services of Central New York
• Mental Health America
• Mental Health America of Dutchess County
• Mental Health Association in New York State, Inc.
• Mental Health Association in Suffolk County, Inc.
• Mental Health Association of Nassau County
• Mental Health Association of New York City
• Mental Health Empowerment Project
• NAMI Central Suffolk
• NAMI-FAMILYA of Rockland County, Inc.
• NAMI-HUNTINGTON
• NAMI-Long Island Regional Council Inc.
• NAMI Queens/Nassau
• NAMI Staten Island
• National Alliance on Mental Illness (NAMI), Niagara County
• National Alliance on Mental Illness of New York State
• New York Association on Independent Living
• New York Lawyers for the Public Interest
• New York State Association of Psychiatric Rehabilitation Services
• New York State Coalition Against Sexual Assault
• Options for Independence
• Peer Networking Group of Central New York
• PEOPLe, Inc.
• Southern Tier Independence Center
• Urban Justice Center
• Westchester Independent Living Center

News

Article on Parental Custody Bill

Parents With Psychiatric Disabilities Won't Get Custody Change This Year
May 30, 2009, Gannett News
By Cara Matthews

ALBANY - Despite pressure from advocates who want to change a law that allows children to be removed from parents with psychiatric and developmental disabilities, a bill to accomplish that won't pass this year, a key lawmaker said this week.

Proponents want lawmakers to remove "presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for a child" as grounds for terminating parental rights, saying it is discriminatory and based on dated perceptions about psychiatric disabilities.

The mental illness/retardation provision was added to state social services law in the mid-1970s, when treatments and medications were not as advanced and centered around recovery as they are today, said Glenn Liebman, the state Mental Health Association's CEO.

"We think this obviously is a vestige from past perceptions of mental illness that are no longer relevant in 2009," said Liebman, whose organization is one of about 25 in the Coalition Against Parental Termination Discrimination.

But the proposal is strongly opposed by the Public Welfare Association, which represents New York's 58 local social services districts. The mental illness/developmental disability grounds are used rarely and courts have found them constitutional, the association said in a memo this month. The other grounds are abandonment, permanent neglect, and severe and repeated abuse.

Assembly Mental Health Committee Chairman Peter Rivera, D-Bronx, said lawmakers plan to work with the bill's supporters and opponents on a possible compromise. But there are too many problems with it and it will not pass this legislative session, which ends in late June, he said.

Senate Mental Health Committee Chairwoman Shirley Huntley, D-Queens, the bill's Senate sponsor, is holding a roundtable discussion on it 11 a.m. Thursday at the Capitol.

There are fewer than 300 termination cases brought annually on the basis of psychiatric and developmental disabilities - less than 9 percent of all petitions - and about half those result in termination of rights, the Public Welfare Association said. There are more than 26,000 children in foster care.

The law applies to cases in the public-welfare system, not private custody cases between parents or private adoptions. It only deals with petitions to terminate rights after a child has been in foster care more than a year. Most foster children are in care because of their parents' substance abuse, the group said.

The Coalition for the Homeless believes the bill's supporters are well intentioned, but the legislation would "do far more harm than good, and would result in more, not fewer, people permanently losing custody of their children," said Shelly Nortz, deputy executive director for policy.

The drafters of the existing law were clear their goal was protecting the rights of parents with mental illnesses and retardation, not discriminating against them, while assuring that children whose parents can't safely care for them don't "languish" in the foster-care system, Nortz said.

"They (the drafters) and the courts also sought to assure that parents with serious impairments not be accused of neglect when they have no 'fault' for their inability to parent," she said.

Proponents of the bill counter that any decision to take away parents' rights should be based on behaviors, not diagnoses.

Terminating 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 her child," Legal Services of Central New York said in a memo supporting the bill.

"Disability grounds unfairly allow the (social services) agency to dispense with diligent efforts and focus on surrender or termination, rather than fulfill their obligation to keep families together," the group said.

The Center for Public Representation of Newton, Mass., said problems for many parents with psychiatric disabilities stem from poverty, unstable housing and other issues.

The law singles out disabilities over other conditions that could compromise parenting ability, such as gambling addiction, Susan Stefan of the center wrote in a letter to legislators.

The bill's supporters said some people might not disclose their disability or seek treatment for fear it could lead to losing their children.

The statute clearly does not allow removing children strictly on a diagnosis of mental illness or retardation, said Jeff Wise, CEO of the state Rehabilitation Association, which represents not-for-profit service providers for people with psychiatric and developmental disabilities.

Removing the provision would cause parents to lose protections, such as a requirement for psychiatric evaluations, said Wise, a lawyer.

"I agree with the bill's supporters that stigma is unfair," he said. "I think my legal conclusion is that by taking this language out of this particular statute, you're actually hurting the people you're trying to protect."

**About 300 parental rights' termination cases a brought each year in New York on the grounds of inability to care due to mental illness or retardation. About half do not result in the termination of parental rights:

* In 2008, 3,440 petitions were filed; 296 (8.6 percent) were on the grounds of mental illness or mental retardation.

* In 2007, 3,830 petitions were filed; 246 (6.4 percent) were on the grounds of mental illness or mental retardation.

* In 2006, 3,575 petitions were filed; 275 (7.7 percent) were on the grounds of mental illness or mental retardation.

Source: New York State Office of Court Administration, New York Public Welfare Association.