senate Bill S3026

2011-2012 Legislative Session

Relates to the permanent termination of parental rights for reason of mental illness or mental retardation; repealer

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to children and families
Feb 07, 2011 referred to children and families

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S3026 - Bill Details

Current Committee:
Senate Children And Families
Law Section:
Social Services Law
Laws Affected:
Amd ยง384-b, rpld sub 6, Soc Serv L
Versions Introduced in 2009-2010 Legislative Session:
S2835

S3026 - Bill Texts

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Relates to the permanent termination of parental rights for reason of mental illness or mental retardation.

view sponsor memo
BILL NUMBER:S3026

TITLE OF BILL:
An act
to amend the social services law, in relation to the permanent
termination of parental rights for reason of mental illness or mental
retardation; and to repeal subdivision 6 of section 384-b of the social
services law relating thereto

PURPOSE:
This bill removes "mental illness" and "mental retardation" as
separate grounds for terminating parental rights under the social
services law.

SUMMARY OF PROVISIONS:
Section 1 of the bill amends section 384-b of the social services law
by eliminating subsection c of subdivision 4 thereby removing from
law mental illness and mental retardation as grounds for the
termination of guardianship & child custody.

Section two of the bill repeals subdivision 6 of section 384-b of the
social services law which defines the terms "mental illness" and
"mental retardation" and explains the required court procedures,
proscribed examinations and expert testimonies for verifying that an
individual is mentally ill or mentally retarded.

Section three of the bill provides for an immediate effective date.

JUSTIFICATION:
The termination of parental 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 his or her child. 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, i.e. ability to parent.
Research shows an alarming rate of custody loss among parents with
psychiatric or intellectual disabilities - as high as 80%. Statewide,
about one-fourth of foster care placements involve at least one
parent with a serious mental health problem.

The Social Services Law, as amended in 1976, includes the following
grounds for termination of parental rights: abandonment; permanent
neglect; severe and repeated abuse; and inability by reason of mental
illness or mental retardation to provide proper and adequate care.
The statute is discriminatory because it explicitly and unnecessarily
incorporates disability-related grounds for termination of parental
rights.

Though disability alone is not justification for termination of parent
rights, the major concern is that the explicit inclusion of
disability grounds unfairly allows a shift in the focus from a
parent's behavior to a parent's diagnosis or condition. Under the
current statute, parents suffer from a presumption of unfitness.
However, recent research has found that parents with disabilities are
not more likely to maltreat their children than parents without


disabilities. While psychiatric or intellectual disability may be a
contributing factor to a parents behavior, 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.

Parents with disabilities are not given the same chance as other
parents to address the issues that led to the removal of their
children. The law discriminates against parents with psychiatric or
intellectual disability by not requiring the Department of Social
Services (DSS) agency to show that it made diligent efforts to
reunite the family. In contrast, under permanent neglect grounds, the
threshold issue is whether the agency made diligent efforts. Only
upon that showing, the court then considers whether the parent failed
to plan for the future of the child.

Without separate disability-related grounds, the current law would
still sufficiently protect the safety of children. Permanent neglect
encompasses a parent's failure to plan for the future of the child,
despite the DSS agency's diligent efforts to strengthen the parental
relationship. In fact, the ground of permanent neglect is often
utilized in cases where a parent's disability is contributing to the
child's neglect. Disability grounds, when used separately, unfairly
allow the agency to dispense with diligent effort and focus on
surrender of termination, rather than fulfill their obligation to
help keep families together.

Having disability related grounds for termination of parent rights can
in fact cause more harm, as parents forgo treatment for fear that a
history of treatment can lead to losing their children. Dramatic
progress has been made in psychiatric treatment and medications, as
well as in parenting education methods for parents with disabilities
since this law was first enacted. The law should be changed to
reflect such progress and allow parents with disabilities the chance
to become better parents with proper treatment and services.

Family preservation is an important goal under the social services
law. A focus on proper preventive or unification services for
families with disabilities will likely decrease foster care
placements, thereby saving the state money and even more importantly
sparing families the trauma associated with unnecessary foster care.

New York State should act to remove this discriminatory section of the
statute in order to remove the biases, the disincentive for parents
to seek treatment and ultimately the unnecessary placement of some
children in foster care and lack of adequate reunification efforts.

LEGISLATIVE HISTORY:
2009/10: S.2835 - Died in Children and Families; A.6668.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.


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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3026

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 7, 2011
                               ___________

Introduced  by  Sen. HUNTLEY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Children and Families

AN ACT to amend the social services law, in relation  to  the  permanent
  termination  of parental rights for reason of mental illness or mental
  retardation; and to repeal subdivision  6  of  section  384-b  of  the
  social services law relating thereto

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 4 of section 384-b of the social services  law,
as  added  by chapter 666 of the laws of 1976, paragraphs (b) and (c) as
amended by chapter 284 of the laws of 1981, paragraph (d) as amended  by
chapter 739 of the laws of 1981, and paragraph (e) as amended by section
56  of  part  A  of chapter 3 of the laws of 2005, is amended to read as
follows:
  4. An order committing the guardianship and custody of a child  pursu-
ant  to  this  section  shall  be  granted  only upon one or more of the
following grounds:
  (a) Both parents of the child are dead, and no guardian of the  person
of such child has been lawfully appointed; or
  (b)  The parent or parents, whose consent to the adoption of the child
would otherwise be required in accordance with section one hundred elev-
en of the domestic relations law, abandoned such child for the period of
six months immediately prior to the date on which the petition is  filed
in the court; or
  (c) [The parent or parents, whose consent to the adoption of the child
would otherwise be required in accordance with section one hundred elev-
en  of the domestic relations law, 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 the period of one year immediately prior to the
date on which the petition is filed in the court; or

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00359-01-1

S. 3026                             2

  (d)] The child is a permanently neglected child; or
  [(e)]  (D) The parent or parents, whose consent to the adoption of the
child would otherwise be required in accordance with section one hundred
eleven of the domestic relations law, severely or repeatedly abused such
child. Where a court has determined that reasonable efforts  to  reunite
the child with his or her parent are not required, pursuant to the fami-
ly court act or this chapter, a petition to terminate parental rights on
the  ground  of severe abuse as set forth in subparagraph (iii) of para-
graph (a) of subdivision eight of this section may be filed  immediately
upon such determination.
  S  2.  Subdivision  6  of  section 384-b of the social services law is
REPEALED.
  S 3. This act shall take effect immediately.

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