The Application of the Americans with Disabilities Act to the Termination of the Parental Rights of Individuals with Mental Disabilities

Journal of Contemporary Health Law & Policy (1985-2015), Dec 2000

By Susan Kerr, Published on 01/01/00

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The Application of the Americans with Disabilities Act to the Termination of the Parental Rights of Individuals with Mental Disabilities

Journalof ContemporaryHealth Law andPolicy [Vol. Individuals with Mental Disabilities The Application of the Americans with Disabilities Act to the Termination of the Parental Rights of Susan Kerr Follow this and additional works at: http://scholarship.law.edu/jchlp Recommended Citation Susan Kerr, The Application of the Americans with Disabilities Act to the Termination of the Parental Rights of Individuals with Mental Disabilities, 16 J. Contemp. Health L. & Pol'y 387 (2000). Available at: http://scholarship.law.edu/jchlp/vol16/iss2/6 - Article 6 Susan Kerr* INTRODUCTION Although Buck v. Bell continues to be "good" law, its premise is no longer practiced.' Gone are the days when the "mentally disabled" or mentally retarded were mandatorily sterilized as a condition of deinstitutionalization because it was believed "three generations of imbeciles [were] enough."2 However, the underlying belief that persons * The author received her undergraduate degree from Barnard College, Columbia University, J.D. from the University of Houston Law Center, Master of Public Health from the University of Texas Health Science Center at Houston, and is a Ph.D. candidate in Management and Policy Sciences at the University of Texas Health Science Center at Houston. Her interest is in bioethics - the interaction of law, medicine and ethics - and she is writing her disserta-, tion on the medical, legal and ethical issues surrounding assisted reproductive technologies. She is a member of the American Bar Association and its Health Law Section, the New York State Bar Association, and the Association of the Bar of the City of New York where she is an active member of the Science and Law Committee. All pronouns used in this paper are in the male form for simplicity only. 1. See Buck v. Bell, 274 U.S. 200 (1927). 2. Id.; As a condition of being released from the State Colony of Epileptics and Feeble Minded, Carrie Buck was to undergo a salpigngectomy, a surgical operation performed by opening the abdominal cavity and cutting the fallopian tubes to sterilize an individual. This procedure intends to prohibit reproduction of those "defective" persons, who if discharged, would become a menace, but if incapable of procreating might be discharged with safety and become self-supporting. While this procedure is no longer a condition of deinstitutionalization, the holding of Buck, permitting the involuntary sterilization of allegedly feebleminded or defective persons, has never been explicitly overturned. In his decision, Justice Holmes opined that the statute in question success JournalofContemporaryHealthLaw andPolicy [Vol. 16:387 with mental disabilities should not reproduce and are inherently unable to provide proper parenting to their children survives today. Although it is not an articulated policy, persons with mental disabilities consistently have their parental rights terminated and routinely lose their appeals. While terminations are often based on the fact that the parent is truly incapable of adequately caring for his children, the courts seldom apply the Americans with Disabilities Act (ADA) 3 in determining parental rights. The ADA requires that public entities, such as the courts, the Department of Health and Human Services (HHS) and child protective services, make reasonable modifications to their rules, policies, and practices of the services they provide in accommodating persons with disabilities that utilize their services. The services provided by these entities include individual assessments and reunification programs designed to evaluate and assist persons in developing their parenting skills when their children are removed from their custody. As a civil rights statute, Congress enacted the ADA to level the playing field and facilitate the transition of the disabled into mainstream society. It aims to remedy ingrained practices of isolating and segregating persons with disabilities. With proper implementation of the ADA, individuals with mental disabilities can acquire adequate parenting skills and will not automatically lose their parental rights. Part I of this paper traces the events leading up to the present day conundrum, a result of the de-institutionalization of the "mentally disabled" without accompanying and appropriate support services. Part II addresses the rights of persons with a mental disability to procreate and to parent, as well as the termination of those parental rights. Part III focuses on active discrimination in the termination process: the court's presumptive terminations based on the label "mentally disfully balanced the interests of the disabled with society's interest in eradicating feeblemindedness, stating, "It would be strange if [the state] could not call upon those who already sap the strength of the state for these lesser sacrifices. ..in order to prevent our being swamped with incompetence." Id.at 207. The statute was upheld and Carrie Buck was sterilized. See ida.t 208. Gi (...truncated)


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Susan Kerr. The Application of the Americans with Disabilities Act to the Termination of the Parental Rights of Individuals with Mental Disabilities, Journal of Contemporary Health Law & Policy (1985-2015), 2000, Volume 16, Issue 2,