NY law that allows children to be taken away from parents with psychiatric or developmental disabilities won't be revised this legislative session

From Press Connects:

ALBANY, N.Y. - Despite pressure from advocates who want to change a law that allows children to be removed from parents with psychiatric and developmental disabilities, a bill to accomplish that won't pass this year, a key lawmaker said this week.

Proponents want lawmakers to remove "presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for a child" as grounds for terminating parental rights, saying it is discriminatory and based on dated perceptions about psychiatric disabilities.

The mental illness/retardation provision was added to state social services law in the mid-1970s, when treatments and medications were not as advanced and centered around recovery as they are today, said Glenn Liebman, the state Mental Health Association's CEO.

"We think this obviously is a vestige from past perceptions of mental illness that are no longer relevant in 2009," said Liebman, whose organization is one of about 25 in the Coalition Against Parental Termination Discrimination.

But the proposal is strongly opposed by the Public Welfare Association, which represents New York's 58 local social services districts. The mental illness/developmental disability grounds are used rarely and courts have found them constitutional, the association said in a memo this month. The other grounds are abandonment, permanent neglect, and severe and repeated abuse.

Assembly Mental Health Committee Chairman Peter Rivera, D-Bronx, said lawmakers plan to work with the bill's supporters and opponents on a possible compromise. But there are too many problems with it and it will not pass this legislative session, which ends in late June, he said.

Senate Mental Health Committee Chairwoman Shirley Huntley, D-Queens, the bill's Senate sponsor, is holding a roundtable discussion on it 11 a.m. Thursday at the Capitol.

There are fewer than 300 termination cases brought annually on the basis of psychiatric and developmental disabilities - less than 9 percent of all petitions - and about half those result in termination of rights, the Public Welfare Association said. There are more than 26,000 children in foster care.

The law applies to cases in the public-welfare system, not private custody cases between parents or private adoptions. It only deals with petitions to terminate rights after a child has been in foster care more than a year. Most foster children are in care because of their parents' substance abuse, the group said.

The Coalition for the Homeless believes the bill's supporters are well intentioned, but the legislation would "do far more harm than good, and would result in more, not fewer, people permanently losing custody of their children," said Shelly Nortz, deputy executive director for policy.

The drafters of the existing law were clear their goal was protecting the rights of parents with mental illnesses and retardation, not discriminating against them, while assuring that children whose parents can't safely care for them don't "languish" in the foster-care system, Nortz said.

"They (the drafters) and the courts also sought to assure that parents with serious impairments not be accused of neglect when they have no 'fault' for their inability to parent," she said.

Proponents of the bill counter that any decision to take away parents' rights should be based on behaviors, not diagnoses.

Terminating 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 her child," Legal Services of Central New York said in a memo supporting the bill.

"Disability grounds unfairly allow the (social services) agency to dispense with diligent efforts and focus on surrender or termination, rather than fulfill their obligation to keep families together," the group said.

The Center for Public Representation of Newton, Mass., said problems for many parents with psychiatric disabilities stem from poverty, unstable housing and other issues.

The law singles out disabilities over other conditions that could compromise parenting ability, such as gambling addiction, Susan Stefan of the center wrote in a letter to legislators.

The bill's supporters said some people might not disclose their disability or seek treatment for fear it could lead to losing their children.

The statute clearly does not allow removing children strictly on a diagnosis of mental illness or retardation, said Jeff Wise, CEO of the state Rehabilitation Association, which represents not-for-profit service providers for people with psychiatric and developmental disabilities.

Removing the provision would cause parents to lose protections, such as a requirement for psychiatric evaluations, said Wise, a lawyer.

"I agree with the bill's supporters that stigma is unfair," he said. "I think my legal conclusion is that by taking this language out of this particular statute, you're actually hurting the people you're trying to protect."