Custody bill re-surfaces in legislature

Should parent be forced to relinquish child to the state on grounds of parent's mental illness or mental retardation?

Bills introduced in last session of the state legislature (S2835 and A6668) over child custody and parental rights that remain alive in committee are drawing rapt attention of mental health advocates. The bills would remove mental illness and mental retardation as separate grounds for terminating parental rights under social services law, section 384b(4). About 40 organizations support the repealer bills, including NAMI-NYS and Mental Health Association of NYS, sponsored by Senator Shirley Huntley and Assemblyman Peter Rivera, chairs of the respective mental health committees. The state's Family Services Agency and a Homeless Coalition do not.

Social Services law section 384b(4) has four grounds for permanently terminating parental rights, the Mental Health Assn. points out in its advocacy brief: abandonment, permanent neglect, severe and repeated abuse, and “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 the care of an authorized agency for a period of one year.”

MHANYS strongly opposes 384b(4) because, it says, “it is discriminatory; decisions to terminate parental rights should be based on behavior and not condition; the substantive and procedural provisions are vague, subjective and easily misapplied, thus undermining the required standard of proof of clear and convincing evidence; and termination of parental rights is a drastic, permanent measure, severing forever a parent's right to be part of his or her child's life.”

Furthermore, "This statute was written prior to changes in mental health treatment promoting recovery and this statute is destructive public policy because parents are afraid to seek treatment for fear of losing their children and children are removed from families where there is no abuse or neglect.”

Well said. I think most NAMI families would agree. However, as I see it, the bill is not a “slam dunk.” There are reasons why some mothers with severe mental illness, who form part of a class of all mothers with mental illness, should not be the ones to bring up a child. Young mothers, particularly, and those with a first child, may suffer from the trauma of having given birth and the enormous emotional changes to their bodies by becoming a mother. For weeks or months after the baby is born, she will typically be monitored by the followup social workers to see if she demonstrates if she can adequately care for the baby. In many cases, I believe, mothers who are sicker than some others will prove to be poor care givers, because they cannot take care of their own lives and cannot possibly take care of another.

They may or may not love the baby—they simply lack responsibility. We see this over and over. A young mother may be re-hospitalized. She may have intruding relationships with boyfriends. She doesn't show good judgment. These traits are to be expected for someone single and on her own. But someone who is so burdened by her own life crashing around her, is a good bet to fail the child or harm it or temporarily abandon it, and we can't have that. This isn't so rare at all.

As evidence, the bill states that there is “an alarming rate of custody loss among parents with psychiatric or intellectual disabilities—as high as 80%. (Does this mean, 80% of such cases before a judge?) Statewide, about one-fourth of foster care placements involve at least one parent with serious mental health problems.” Does this indicate that taking custody away from a mentally ill mother is discriminatory? The bill also explains the high numbers. It finds “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, that is, ability to parent.”

It adds: “Parents with disabilities are not more likely to maltreat their children than parents without disabilities. 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.” The bill further contends “the law discriminates against parents with psychiatric or intellectual disability by not requiring the Dept. of Social Services agency to show that it made diligent efforts to reunite the family."

While my personal experience is based on a single case and I would differ with this evaluation, I support the contention that courts in these cases are stacked against the hapless single parent facing so crucial a test with very little on her side. She may be guilty about what she has done or not done, but she and her lawyer probably have little on which to support her case. The facts are that too many of the mothers lose their child, who shouldn't, even if it is justified in some cases. (Roy Neville)