Parental psychiatric disorder and the law: the American case

doi:10.1017/CBO9780511543838.020

18 - Parental psychiatric disorder and the law: the American case

from Part IV - Specific treatments and service needs

Published online by Cambridge University Press: 09 August 2009

Edited by

Jeni Webster and

Colby C. Brunt: Affiliation:
Washington Street, Boston, USA
Michael Göpfert: Affiliation:
Webb House Democratic Therapeutic Community, Crewe
Jeni Webster: Affiliation:
5 Boroughs Partnership, Warrington
Mary V. Seeman: Affiliation:
University of Toronto

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Summary

Introduction

The legal rights of parents with mental illness in the United States vary from state to state. The following chapter examines the current federal and state laws in the United States regarding termination of parental rights, custody and visitation in cases involving a parent with mental illness. The final section of this chapter gives recommendations for attorneys and advocates who are working with mentally ill parents.

Recent studies have indicated that parents who are diagnosed with a mental illness too often lose custody of their children, either to another party or to the state. One study found that 70–80% of parents with mental illness lost custody of their children.1 This added prospect of the loss of custody may also contribute to additional mental health problems for the parent. Many such parents try, unsuccessfully, to navigate a complex and confusing legal system on their own because of their inability to afford counsel. If a parent cannot afford to hire a private attorney or cannot get an attorney from their local legal aid office, typically, they must represent themselves in these very complicated and emotional hearings. It is only in termination of parental rights proceedings that parents are generally granted appointed counsel to be paid for by the state. Without effective counsel, many of these parents will certainly lose custody of their children and may even lose the right to visit their children.

Keywords

child custody disputes federal law mental illness recommendations for attorneys United States visitation rights state law termination of parental rights

Type: Chapter
Information: Parental Psychiatric Disorder
Distressed Parents and their Families
, pp. 257 - 270

DOI: https://doi.org/10.1017/CBO9780511543838.020 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2004

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References

‘Nicholson et al. Critical Issues for Parents with Mental Illness and their Families, 9 (quoting Joseph et al. 1999; Mowbray et al., 1995) (July 31, 2001). Unpublished paper for the Center for Mental Health Services Office of Policy, Planning and Administration. (On file with author.)

Popovich v. Cuyahoga County Court of Common Pleas, 2002 U.S. App. LEXIS 367, *11–12, (6th Cir. 2002)

Meyer v. Nebraska, 262 U.S. 390, 399 (1923)

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)

May v. Anderson, 345 U.S. 528, 533 (1953)

455 U.S. 745, 760–761 (1982)

42 U.S.C. z 671(a) (1997)

42 U.S.C. z 675 (5)(f) (1997)

Nicholson, et al., supra note 1, at 26

31 S.W. 3d 64 (Mo. Ct. App. 2000)

Id. at 69. (quoting In the Interests of C.P.B., 641 S.W. 2d 456, 460 (Mo. Ct. App. 1982))

Id. at 70

Id.

A “service plan” is typically a plan that the social services agency puts in place that has various requirements for the parent to meet. Some examples are: following the medical advice of treating clinicians, attending parenting support meetings, taking parenting classes, and meeting on a regular basis with the social services case manager

Id. at 71

465 A.2d 924 (N.H. 1983)

Id. at 929–930

Id. at 930

Id.

530 S.E. 2d 104 (N.C. Ct. App. 2000)

383 S.E. 2d 690 (N.C. Ct. App. 1989)

In re Small, at 106 (quoting In re Scott, at 691)

50 Va. Cir. 457 (Va. Cir. 1999)

418 N.E. 2d 1305 (N.Y. App. Div. 1981)

42 U.S.C. z 12101(b)(1)(1990)

Id.

42 U.S.C. z 12132 (1990)

In the Interest of C.M., S.M., D.M., and J.M., 996 S.W. 2d 269, 270 (Tex. App. 1999)

Family Independence Agency v. Terry, 610 N.W. 2d 563, 570 (Mich. Ct. App. 2000) (See also In the Matter of John D., 934 P.2d 308 (N.M. Ct. App. 1997); In re Anthony B. et. al., 735 A.2d 893 (Conn. App. Ct. 1999), both of these cases held that the ADA applies to reunification services offered by the state agency)

Stone v. Daviess County Division of Children and Family Services, 656 N.E. 2d 824, 830 (Ind. Ct. App. 1995)

747 N.E. 2d 120, 125 (Mass. 2001)

947 S.W.2d 761, 768 (Ark. 1997)

455 U.S. 745 (1982)

SeeBeck v. Beck, 432 A.2d 63 (N.J. 1981)

278 S.E. 2d 357 (W.Va. 1981)

Kathryn L. Mercer, A Content Analysis of Judicial Decision-Making: How Judges Use the Primary Caretaker Standard to Make a Custody Determination, 5 Wm. & Mary J. of Woman & L 1, 8 (1998)

Kevin S.E. Sr., v. Diana M., 520 S.E.2d 197, 204 (W.Va. 1999)

115 N.W.2d 833 (Iowa 1962)

Id. at 835

Id. (The issue of the mother's mental illness was greatly debated at the trial court level. The father produced two medical experts who testified that the mother was suffering from schizophrenia with marked paranoid tendencies. The mother had a medical expert who testified that she did not suffer from mental illness. The Court stated that their duty is to decide the case de novo and to take the facts as recorded in the trial court record which found the mother to be suffering from a mental illness.)

Id. at 837

Id.

See Tenn. Code Ann. z 36-6-106 (2001) (emphasis added)

See 750 Ill. Comp. Stat. Ann. 5/602 (2001)

558 N.E.2d 388 (Ill. App. 1990)

Id. at 394 (See In re Marriage of Slavenas; 487 N.E.2d 739, 741 (Ill. App. 1985))

745 A.2d 1054, 1060 (Md. App. 2000)

Id.

529 N.W.2d 167 (N.D. 1995)

Id. at 170 (emphasis added)

Id.

Willey v. Willey, 115 N.W.2d 833, 838 (Iowa 1962)

Id.

2000 Tenn. App. LEXIS 259, 5 (Tenn. Ct. App. 2000) (quoting Tenn. Code Ann. z 36-6-301 (1999))

144 A.2d 421, 423 (App. D.C. 1958)

Id. (emphasis added)

626 N.W.2d 526 (Neb. 2001)

Id. at 532 (quoting Neb. Rev. Stat. z 42-364(2))

Id. at 533

558 N.E.2d 338, 395 (Ill. 1990)

Id. (quoting Ill. Rev. Stat. 1989, ch. 40, par. 607(c)(1989))

1997 Ohio App. LEXIS 5591, 5–6 (Ohio App. 1997)

Id. (The trial court issued a journal entry finding the following: (1) the past supervisor thought that unsupervised visitation should begin; (2) the mother provider evaluated the mother, found no mental illness, but did not consult any previous medical records or evaluations; (3) the children's counsellor testified that the children indicated that they did not want to visit with the mother unsupervised, and (4) the mother had failed to obey a previous order to undergo psychiatric counselling and submit monthly progress reports to the court.)

Id. at 4–5 (quoting Ohio Rev. Code Ann. z 3109.051(A) (1997))

Clark v. Clark, 371 N.W.2d 749, 753 (Neb. 1985)

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18 - Parental psychiatric disorder and the law: the American case

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