Mental Health Update - April 22, 2010

Summary of MHANYS Legal Roundtable with Government Law Center at Albany Law School on Issues of Termination of Parental Rights for Parents with Psychiatric and Developmental Disabilities

(I would like to thank Sim Goldman of Disability Advocates for his assistance in putting this summary together).

On April 16^th, MHANYS sponsored a Legal Roundtable in partnership with the Government Law Center at Albany Law School on the subject of: Termination of Parental Rights and Access to Family Reunification Services for Parents with Psychiatric and Developmental Disabilities.

Listed below is a very brief synopsis of the event. We will have a much more detailed description as well as a video that will be available. If you are interested in finding out more about the content of the program, please contact Lorraine McMullin at lmcmullin@mhanys.org

This forum was held to discuss serious issues that parents with psychiatric disabilities and developmental disabilities confront when faced with a proceeding to terminate their parental rights.

Currently, New York State Social Services Law, 384-b, specifically references mental illness and developmental disabilities as part of the criteria to be considered in the parental termination process. MHANYS worked with the legislature to introduce a bill last year that called for the elimination of the consideration of mental illness and developmental disabilities in the parental termination process.

The legal forum on April 16^th brought together some of the state and nation’s leading experts on this subject area.

The panel included:

• Susan Stefan, Author of, “Unequal Rights: Discrimination against People with Mental Disabilities and the Americans with Disabilities Act”

• Ella Callow, JD, Director of the Through the Looking Glass, Legal Program

• Theresa Glennon, JD, Professor of Litigation, Temple University, Beasley School of Law

• Jeniece Scott, JD, Association at Marks, O’Neill, O’Brien and Courtney, PC

• Emily Karr-Cook, JD, Private Practice and Law Guardian

• Simeon Goldman, JD, Senior Staff Attorney, Disability Advocates, Inc.

The moderator was Rose Mary Bailly, Executive Director, New York State Law Revision Commission and Albany Law School Faculty

Each of the speakers presented for about fifteen minutes, followed by questions and comments from an audience which was largely comprised of attorneys, state officials, legislative staff, provider agencies and advocacy groups. It was very clear from the tone of the discussion that the panelists believed that the current law in New York State needs to be revised.

Ella Callow, who tracks the national changes in parental custody law, noted that both Idaho and Kansas in recent years have changed their laws to eliminate language which is discriminatory to people with disabilities. She emphasized that neither state has reported any negative consequence for children due to having taken this action. She also noted several other states similar to New York do not include disability in their termination statues and there have been no reports of negative consequence because of the existing law.

Jeniece Scott discussed how she has worked with the Bazelon Center for Mental Health Services in crafting model language for states that remove discriminatory language and that provides equal services and due process to all parents regardless of disabilities.

Theresa Glennon discussed how the existing law in New York State violates the ADA.

The critics of the law have noted that there are few people in New York who actually have their rights terminated as parents on a yearly basis. Panelists responded that there are many parents with mental disabilities who are adversely impacted by the existing law, but are not reflected in the statistics, because they have surrendered their parental rights, believing that there was little or no chance that they could win in such a proceeding.

Emily Karr-Cook, an attorney in private practice, talked openly and poignantly about her own struggles with bi-polar disorder many years ago when her child was very young. Today, she reports that her son is a happy, healthy adult. She said that if not for the support of her husband, her son might have removed, with deleterious consequence for both her son and her self.

Both Emily and Sim Goldman described how New York’s existing law provides inferior due process to parents with a diagnosis in comparison to the due process provided to parents charged with abuse, neglect or abandonment.

One of the defenses of the existing laws is that it provides additional protection through a psychiatric evaluation. As Sim Goldman, said ‘No one with a psychiatric disability ever said that they appreciated the protection of a psychiatric evaluation.” Also, as Susan Stefan noted, an evaluation is only a snapshot of an individual, particularly when they are at their low point and is therefore not a true barometer of the individual’s mental health status.

She also drew the analogy between someone who had a heart attack and someone with a psychiatric disability regarding termination of parental rights. She asked us to imagine someone who had just had a heart attack and was in recovery in a hospital having Child Protective Services (CPS) approach them and tell them that their child is being taken away. That happens to people with mental illness. At their worst, they may not appear to be capable parents, but neither is someone who had just had a major heart attack .No one would consider taking their heart attack victim’s child away.

With recuperation and respite, much like a heart attack victim, they may very well be able to parent.

The panelists agreed that the first priority is always the safety and well being of the child. The panelists noted that everyone believes it is in the best interests of a child to remain with his or her parents, and that ultimately, keeping families together benefits both parent and child. There is no reason to believe, based on the laws across the country that in any way, shape or form, the elimination of disability language from termination would impact child safety negatively.

Another defense of the current statute is that the elimination of the separate proceedings on the basis of mental disabilities would provide one less tool in the toolbox for CPS workers to use in difficult family situations. What several of the presenters maintain is that the existing criteria of abuse, neglect or abandonment should be enough to be able to provide the ability to take away the child from the home.

This is meant in no way as a criticism of CPS workers who are in the front lines and often have to deal with critical decisions on a daily basis.

This existing law is a remnant from the past and should be changed. To again quote Sim Goldman, “A law that may have been cutting edge in 1975, belongs on the cutting floor in 2010″. It does not reflect the advances that have been made in the treatment and understanding of psychiatric and developmental disabilities.

MOVING FORWARD WITH TRAININGS AND SERVICES

One of our most important goals is to empower parents by providing trainings to both parents and providers and to enhance the services that parents need in order to successful raise their children. Through our Parents with Psychiatric Disabilities grant in partnership with the New York State Office of Mental Health, we are working with thirty provider agencies in New York State by providing trainings on advanced directives, trauma treatment and WRAP training.

We will also be providing several helpful tool kits relevant to the needs of parents with psychiatric disabilities as well as for provider agencies. We are working with our colleagues at NYAPRS regarding the trainings and we are working with the ICRT program at the College of St. Rose to help with evaluation of the programs.

Please contact the project director, Lorraine McMullin with any questions at lmcmullin@mhanys.org

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