BILL NUMBER:S3026

TITLE OF BILL:
An act
to amend the social services law, in relation to the permanent
termination of parental rights for reason of mental illness or mental
retardation; and to repeal subdivision 6 of section 384-b of the social
services law relating thereto

PURPOSE:
This bill removes "mental illness" and "mental retardation" as
separate grounds for terminating parental rights under the social
services law.

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.