The Statutory Stigmatization of Mentally 111 Parents in Parental Rights Termination Proceedings

• Publication year: 2021
• Citation: Vol. 98

98 Nebraska L. Rev. 746. The Statutory Stigmatization of Mentally 111 Parents in Parental Rights Termination Proceedings

The Statutory Stigmatization of Mentally 111 Parents in Parental Rights Termination Proceedings

Comment(fn*)

TABLE OF CONTENTS

I. Introduction.......................................... 747

II. Background........................................... 749
A. Parental Rights Termination Statutes ............. 749
B. Parental Rights Termination Proceedings.......... 751
1. Mental Illness or Mental Deficiency as a Ground to Terminate Parental Rights.................. 752
2. The Best Interests of the Child Standard....... 753
3. The Use of Parenting Evaluations to Make Parental Rights Termination Decisions......... 755
C. The Stigmatization of Parents with Mental Challenges........................................ 758
1. Empirical Evidence of Stigma Against Parents with Mental Challenges........................ 758
2. Judicial Reliance on Mental Illness in Parental Rights Termination Proceedings................ 760
3. Evidence That Parents with Mental Challenges Can Still Be "Fit" Parents ..................... 761

III. Analysis.............................................. 764
A. Parental Rights Termination Statutes Promote the Stigmatization of Parents with Mental Challenges . 764
B. Mental Illness or Mental Deficiency as a Ground for Termination Does Not Protect Children............ 768

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1. Mental Illness or Mental Deficiency is Rarely the Only Ground for Termination.............. 768
2. Termination Does Not Ensure Stability for the Children....................................... 769
C. Alternatives to Termination....................... 770
1. Provide Parents with More Time for Treatment..................................... 771
2. It Takes a Village-Parenting Does Not Have to Be All or Nothing.............................. 773

IV. Conclusion............................................ 775

I. INTRODUCTION

The decision to terminate parental rights is a serious one. Parents have a constitutional right to raise and rear their children-a right that is limited by the welfare of the child.(fn1) Striking an appropriate balance between these two rights is a delicate task. On the one hand, the law cannot be such that children are constitutionally required to grow up with parents who will not or cannot provide them with adequate support and care.(fn2) On the other hand, the constitution does not require perfect parenting. Parents are provided wide latitude to make mistakes and raise their children in ways that others in society may find questionable.(fn3)

The question of what constitutes "good enough" parenting is complicated further by the fact that many parents live with mental challenges of varying severity. For the purposes of this Comment, the term "mental challenge" will refer to any "mental disorder" listed in the Fifth Edition of the Diagnostic and Statistics Manual of Mental Disorders (DSM-5 or DSM). The DSM-5 defines mental disorder as "a syndrome characterized by a clinically significant disturbance in an

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individual's cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning."(fn4) The DSM-5 groups mental illnesses, intellectual disabilities, "pervasive developmental disorders, motor skills disorders, communication disorders, elimination disorders, attention-deficit and disruptive behavior disorders, and learning disorders" together as mental disorders.(fn5)

Twenty percent of adults in the United States report suffering from some type of mental illness, including one million parents of minor children suffering from a serious psychiatric disorder.(fn6) Over five million children in the United States have a parent with a serious mental illness (e.g., schizophrenia, bipolar disorder, or major depressive disorder).(fn7) Although judges cannot terminate parental rights simply because a parent has been diagnosed with a mental disorder,(fn8) parents with mental challenges are at an increased risk of losing custody or, worse, parental rights to their children.(fn9) Some researchers

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estimate that up to 80% of parents with mental illnesses have lost custody of their children.(fn10)

This Comment will argue that the parental rights termination statutes that list "mental illness or mental deficiency" as a ground for termination promote the stigmatizatio of parents with mental challenges. As Nebraska is one of the states with this language included in its statute,(fn11) this Comment will specifically emphasize Nebraska statutes and cases. Part II of this Comment will provide information about the history and nature of parental rights termination statutes and the process of parental rights termination hearings. It will then discuss empirical evidence documenting the stigma against people with mental challenges as well as evidence that mental challenges do not equate with unfit parenting. Part III will argue that including mental illness or mental deficiency as a ground for termination promotes the stigmatization of parents with mental challenges without providing any additional protections for their children. Part III will conclude with a discussion of some alternatives to termination when attempting to strike the delicate balance between protecting the rights of both the parents and their children.

II. BACKGROUND

A. Parental Rights Termination Statutes

Since the mid-nineteenth century, state statutes have allowed courts to "withdraw the infants from the custody of the father or mother and place the care and custody of them elsewhere . . . when the morals, or safety, or interests of the children strongly require it."(fn12) These separations range in severity from the child's temporary removal from the parent's custody to the termination of the parent's parental rights.(fn13) In these proceedings to terminate parental rights, the legal ties between parents and their biological children are severed in order to allow other, allegedly "better," individuals to exercise those parental rights.(fn14)

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In an attempt to avoid termination and instead promote the reunification of biological families, Congress passed the Adoption Assistance and Child Welfare Act of 1980 (AACWA).(fn15) is When a child was removed from his or her home, the AACWA required reasonable efforts to prevent removal or make it possible for the child to return home.(fn16) However, the statute provided no guidance as to what constituted reasonable efforts.(fn17) Additionally, as children were removed from their homes, they often got lost in "foster care drift."(fn18) Because the parents retained their parental rights, new families could not adopt the children. But it would often take the parents months, if not years, to improve their parenting capabilities-assuming they could at all. Thus, the children were stuck in legal limbo. They could not be adopted, but they also could not return to their parents.(fn19)

In order to resolve this problem of foster care drift, Congress passed the Adoption and Safe Families Act (ASFA) of 1997 in order to shift the focus from reunification to adoption.(fn20) The ASFA's most important modification of the AACWA was the inclusion of the 15/22 provision. The ASFA requires states to begin a parental rights termination hearing if a child has been in foster care for fifteen of the last twenty-two months.(fn21) However, because the ASFA is a federal statute, states have the liberty to adopt their own variations of these provisions. Twenty-nine states have adopted the 15/22 provision, and some, like Alabama, Iowa, and New Hampshire, have adopted even stricter timelines.(fn22) In one study, Elizabeth Lightfoot and her colleagues

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found that 61.3% of their sample of parents with mental disabilities had a petition for termination of parental rights filed within twelve months of opening their case.(fn23)

In addition, the ASFA amended the AACWA to allow for concurrent planning. Under the ASFA, courts can explore reunification and termination at the same time.(fn24) Thus, with some exceptions, the ASFA still requires reasonable efforts before parental rights can be terminated.(fn25) However, the newly amended statute failed to provide any further guidance on what constituted reasonable efforts or who was entitled to them. Thirty states, including Nebraska, require reunification services.(fn26) In eight states and Puerto Rico, "mental illness of such duration or severity that there is little likelihood that the parent will be able to resume care for the child within a reasonable time" is an aggravating circumstance that warrants the waiver of reasonable efforts.(fn27)

B. Parental Rights Termination Proceedings

Although there are no standard rules as to how these proceedings should occur, most states follow a two-step process to terminate parental rights.(fn28) First, the court must determine if a statutory ground for termination exists.(fn29) Once the court determines that at least one statutory ground exists, the court can only terminate parental rights if doing so is in the best interests of the child.(fn30) It is presumed that

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remaining with the biological parent is in the child's best interests.(fn31) However, showing parental unfitness rebuts that presumption.(fn32)

Parental unfitness is found when there is "a...