When Love is not Enough: Termination of Parental Rights When the Parents Have a Mental Disability

AuthorRachel L. Lawless
PositionGraduated from Denison University with a Bachelors of Art in Sociology and Anthropology
Pages491-533
WHEN LOVE IS NOT ENOUGH: TERMINATION OF
PARENTAL RIGHTS WHEN THE PARENTS HAVE A
MENTAL DISABILITY
RACHEL L. LAWLESS*
For many peop le, t he abi lity to be a parent and raise chi ldren is t aken
for granted. However, for par ents with mental di sabilities, the threat of
termination of one’s parental rights is v ery real. For courts, it is difficult t o
walk the line between the parents’ rights and the rights of the child. What
should be the appropriate test to determine when pare ntal rights sho uld be
terminated? What measures should be ta ken by o ur society before
termination can occu r? The overall theme of this comment i s to explore
the implem entation i ssues Ohio courts will surel y encount er after the Ohio
Supreme Court’s recent decision in In re D.A.1 by explorin g what other
courts have done. This comment al so hopes to contribute ne w insight into
how to handle such a delicate and imp ortant issue.
While mental di sability, alo ne, is insuffici ent to termin ate parental
rights, men tal dis ability must be considered in order to ensu re that parents
get the social service support and clas ses th ey need to succeed an d
_______________________________________________________
Copyright © 2008, Rach el L. Lawless.
* I graduated from D enison University with a Bachelors of Art in Sociology and
Anthropology, and will graduate from Capital Univ ersity Law School in May 2009. Thanks
to th e Capital University Law Review and Professor Mark Strasser. I am not quite sure
what guided me to law school. Maybe I was destin ed for law s chool as an act of defiance
against my l ast name; perhaps it was my addiction to the television shows of Law & Order
and Ally McBeal . It still remains a mystery to me. I am an avid dog lover and have leaned
heavily on my dog, Maggie , for advice throughout the article-writing proces s.
Although I am just kidding about my dog, I must attribute this subject matter to th e
summer and winter I spent working at a shel tered workshop for adults with mental
retardation and developmental d isabilities. I met some of the most amazing individuals at
the workshop, and I will never forg et how much I learned from them all about how to truly
make th e most of life, be brave, be in wonder about the world around me, and to accept
people, no matter what their differences may be. That is why it is extremely important to
me that my friends be given the full protection of the law, especially when their children are
at stake. While I recognize that realistically, not all parents will b e able to keep their
children, it is my goal to make suggestions th at might improve their chances of retaining
custody of what they love most, their children.
1 862 N.E.2d 829 (Ohio 200 7).
492 CAPITAL UNIV ERSITY LAW REVIEW [37:491
maintain custody of their children.2 If mental disability is not taken into
consideration, it will be easier to declare parents with men tal disabilities
unfit. The child welfare system must be able to acco mmodate the special
needs of parents.
Social s ervice ag encies should be required to provide services t o
parents with mental disabilities. Classes need to be offered within the
home. Fu rthermore, statutory time periods need to be extended to reflect
the reality of the ongoing education and services p arents with disabilities
need to be successful.3 The one y ear reasonable time period in the Ohio
Revised Cod e does not reflect the realities of ongoing education and
services those paren ts with mental disabilities wil l need.4
Part I of th is comment will prov ide a backgro und on p arental rights for
parents wit h a disability. It will also pres ent a brief description o f the law
regarding termination of parental rights and the typical procedure. P art II
will focus o n recent developments with t ermination of parental rights in
various st ates across the count ry. Part III will discuss trends in Ohio cases
and la w while Part IV will analyze the implication s of these recent
developments and al so focus on implem entation issues th at can be
furthered in Ohio by comparing other states. Fi nally, Part V will offer
suggestions fo r changing terminat ion of parental ri ghts proceeding s.
I. LAYING THE GROUNDW ORK
A. Defining “Disa bled”
Various state st atutes use different terms t o describe “disabil ity” as a
factor for termin ating parental rights. So me states us e “mental ret ardation”
as a ground for ter mination of par ental rights o r as a factor to con sider.5
Other states use th e term “ mental deficiency,”6 which is an old er term.7
_______________________________________________________
2 See discussion infra Part V.B–C.
3 See discussion infra Part V.A.
4 OHIO REV. CODE ANN. § 2151.414 (E)(1)–(2) (LexisNexis 2007).
5 See, e.g. , DEL. CODE ANN. tit 13, §§ 1101(9), 1103(a)(3) (1999); HAW. REV. STAT.
ANN. § 571-61(b)(1)(F) (We st 2008); N.Y. SOC. SERV. LAW § 384-b(4)(c) (McKinney
2003).
6 See, e.g., ARIZ. REV. S TAT. ANN. § 8-533(B)(3) (2 007); COLO. REV. STAT. § 19-3-
604(1)(b)(I) (2008); DEL. CODE ANN. t it 13, §§ 1101(9), 1103(a)(3) (1999).
7 Karl A. M enninger, II, Defense in Proceeding for Termination of P arental Rights on
Ground of Mental Disabi lity, in 46 AM. JUR. 3D Proof of Facts 231, 243 (1998).
2008] WHEN LOVE IS NOT ENOUGH 493
Mental retardat ion is defined by the American Associat ion on Mental
Retardation as foll ows:
Mental retardat ion refers t o substan tial limitatio ns in
present functionin g. It is characterized by signific antly
subaverage intellectual functioning, existing concurrently
with related limitations in two or more of the following
applicable adaptive skill areas: communication, self-care,
home living, social skills, community use, self-direction,
health and safety, fu nctional academics, leisure and work.
Mental retardation manifests before age [eighteen]. 8
Persons wit h mental retardation are defin ed as having l ow intelli gence and
lack or are deficient in s kills or functions needed for daily life, such as
eating, dressing, personal hygiene, communi cating with others, working
and living indep endently.9
Abstract concep ts may be difficult for persons with disabilities to
understand, and they may lack the ability to learn t hrough generalizing
experiences, t o follow complex instructions , or to relate to others at an ag e
appropriate level.10 However, many people with mental disabilities are
able to live and wo rk in their community and be accept ed and appreciated
by society.11 Many successful individuals use habilitat ion services, such as
“behavior modification, occupati onal and physical therapy, life skills
training, sheltered wo rkshops, support ed employment, su pervised living
and residential care.” 12 The typical or primary clinici ans involved are
clinical psychologists, clinical social workers, occupational therapists, and
physical th erapists.13 In order to unders tand these vast improvements
available to people with disabilities, it is important to understand t he
history of degradation and discrimination in this country against people
with disabiliti es.
_______________________________________________________
8 Id. at 244 (quoting AM. ASSN ON MENTAL RETARDATION, MENTAL RETARDATION:
DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORT 1 (9th ed.1992)).
9 See id.
10 Id.
11 See id at 245.
12 Id.
13 Id.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT