Loss of Parental Rights Due to Mental Illness

Posted By Matthew Clawson || 24-Aug-2015

A judge in Colorado can end parental rights of either, or both, parents if the judge finds that the child has been neglected and no parenting counseling or education can be devised to address the parent(s)’ fitness to parent the child. Before a court terminates parental rights, however, the state agency must make reasonable efforts to prevent out-of-home placement of abused and neglected children and to reunite the family by providing services that are necessary and appropriate to re-establish the parental relationship and protect the child.

The Colorado dependency and neglect statute specifically recognizes that a parent may be unfit due to an emotional illness, mental illness or mental deficiency of such duration or nature as to render the parent unlikely within a reasonable time to be able to care for the child’s ongoing physical, mental and emotional needs and conditions.

The Americans with Disabilities Act and Parental Rights

On the other hand, there is a federal law called the Americans with Disabilities Act (ADA) that prohibits a state or local government agency from discriminating against a “qualified” person with disabilities in connection with the operation of government services, programs or activities. The ADA specifically provides that no disabled person can be excluded or denied government benefits, or discriminated against by any government agency if a reasonable accommodation for their disability can be made by the government agency. The ADA specifically includes a mental impairment as a disability.

Colorado courts have held that the ADA cannot be used by a parent to prevent the stoppage of their rights when the parent is unable to meet the child’s needs. On the other hand, courts have held that the ADA requires that government agencies provide assessments, treatment and other services to mentally impaired parents in order to give them all available benefits and services to help them care for their child before their parental rights are terminated.

How the ADA Protects Parental Rights in Colorado

These rights under the ADA are not without limit, however. The ADA only requires “reasonable” accommodation for the mentally impaired parent in a dependency and neglect case. Importantly, the ADA does not protect a person as a “disabled” person if that person poses a safety risk that cannot be removed with “reasonable” accommodations.

In a dependency and neglect proceeding brought by a Colorado county Department of Human Services to terminate the parental rights of a mentally impaired parent, the court must present clear evidence as to whether or not there are proper accommodations in relation to the parent’s debilitation. To figure out if proper accommodations can be arranged in a dependency and neglect proceeding, the first priority must always remain with the child’s wellbeing. If the court finds that no treatment plan will work in relation to the parent's mental debilitation, that finding is equivalent to finding that no “reasonable” accommodation can be made for the parent’s disability under the ADA.

Conditions for Terminating Parental Rights Based on Mental Impairment in Colorado

The parenting rights of a mentally impaired parent will be terminated when a court finds:

  • No workable treatment can be drafted per the parent’s unfitness because of debilitating mental illness that interferes with that parent’s ability to provide basic needs for their child and within an expected or normal amount of time'
  • There are no Colorado services possible to help the particular mental deficits of the parent;
  • The mental impairment prevents the parent from cooperating with any professional aid or assistance in parenting the child;
  • The parent does not offer to obtain any professional aid for the mental impairment in order to assist in parenting the child;
  • The parent’s conduct or condition is unlikely to change on its own within a reasonable time.
Categories: Family Law

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