The Capacity of a Mentally Retarded Parent to Consent to Adoption

It is universally acknowledged that persons with mentally retardation have, to the maximum degree possible, the same rights as all other people. As early as 1971, the United Nations passed its Declaration on the Rights of Mentally Retarded Persons. A key provision states that whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse.

In the United States, the ability to adopt the child of a mentally disabled parent hinges upon the termination of the disabled parent’s rights. When the parent is mentally disabled, the ability to obtain the parent’s consent is complex and varies between states, but is always determined pursuant to a hearing. Most states hold that the capacity to consent is determined by analyzing whether the parent is capable of caring for the child, and/or considerations of the best interest of the child. Therefore, in the absence of specific legislation to the contrary, a third party has no right to decide such legal matters for an otherwise competent individual.

Case Law Trends

In general there must be consent to adoption. Typical state codes hold that consent to adoption is required of the following parties:

(1) both natural parents of a child conceived or born in wedlock;

(2) the mother of a child born out of wedlock;

(3) the adoptee who is over 14 years of age, unless the judge waives this consent;

(4) the person or agency having custody of the child;

(5) the father of a child born out of wedlock, if he has maintained substantial and continuous or repeated contact with the child as demonstrated by payment of child support and visitation of the child at least monthly when permitted and financially able to do so, or regular communication with the child or agency having custody of the child when permitted and financially able to do so; and

(6) the father of a child born out of wedlock who is under 6 months of age at the time he is placed for adoption, who has lived continuously with the child or the child's mother for 6 months before the adoption and who held himself out to be the father.

Capacity Hearings

In the case of parents who are mentally retarded, an initial hearing must be held to determine the capacity and fitness of the mentally retarded parent. In Helvey v. Rednour (1980) the Illinois Appellate Court held that the Illinois Adoption Act was unconstitutional because it appointed a guardian ad litem with the power to consent to adoption for mentally retarded parents. This Act was held unconstitutional because it omitted a fitness hearing, a violation of the Equal Protection and the Due Process Clauses of the Fourteenth Amendment. Since there was no requirement in the statute mandating a finding of parental unfitness as a condition precedent to the appointment of the guardian, the statute creates a presumption that all retarded parents are unfit, which is unconstitutional.

State Standards

During the hearing process, courts decide whether to terminate parental rights by using a combination of parental fitness and best interests of the child tests to determine whether the mentally retarded parent has the ability to consent. In Adoption of Abigail (1986), the court declared that the mental retardation of a parent is not sufficient grounds for the termination of parental rights. For the parental rights to be terminated, it is necessary to show that the mental retardation affects the parent’s fitness or the child’s well-being.

Withdrawal of Consent

An additional issue concerning the mentally retarded parent’s capacity to consent is raised by cases where parents want to rescind their consent after the adoption has occurred. If a mentally retarded parent attempts to withdraw consent, the court has to determine whether the mentally retarded person initially gave informed and intelligent consent to the adoption.

Some courts also consider the ability to nullify an adoption as a contract matter. In such a situation, the burden to prove incapacity to contract is on the mentally retarded parent, and must be proven by convincing evidence. In In re Adoption of Smith (1991), the mother, who was mildly retarded, wanted to invalidate her written surrender of her children because she did not comprehend that she was giving up her parental rights. The adoptive parents were trusted friends and neighbors of the mother. They cared for two of her children while the third was in the hospital, and aided the mother with shopping and paying bills. However, the mother was dependent on the adoptive parents and was induced into signing the agreement. The court held that the consent was void because she did not understand the repercussions of her act. Without such an understanding, there could have been no meeting of the minds and, therefore, the consent for the adoption was rescinded using basic contract theory.

Under what circumstances can state officials, in their capacities as defendants, be held liable? 42 USC § 1983 imposes liability on anyone who, acting under color of state law, deprives a person of "any rights, privileges, or immunities secured by the Constitution and laws." In Blessing v. Freestone, the Supreme Court held that in order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law. The US Supreme Court has looked at three factors when determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous" that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States.

Practice Tips

To ensure these parents are properly represented, consider the following points:

* Strictly enforce notice requirements.

* Ensure appropriate services have been offered to the parent in a timely manner. Mental disability itself is not a reason for TPR.

* Be able to demonstrate that the parent can or cannot materially improve the behavior that precipitated the request for a TPR.

* The parent’s capacity to understand the ramifications and significance of the TPR proceeding is key. To the extent possible, the parent should understand the finality of the court proceeding, or, if the TPR is voluntary the consent must given knowingly and without coercion.

* Besides court-ordered physician testimony, secure documentation from the parent’s treating physician.

* Make sure there is no undue influence.

* Even though there may be grounds for TPR, there is a need to document that the proposed permanency plan is in the best interest of the child.

* State officials, in their capacity as defendants, often argue that they are entitled to qualified immunity. Consult an attorney to determine whether or not this immunity exists.

References

42 USC § 1983

Blessing v. Freestone (1997)

Good v. Zavala, 531 S.2d 909 (Ala. Civ. App. 1988)

Helvey v. Rednour, 408 N.E.2d 17 (Ill. App. Ct. 1980)

Hunter v. Bryant (1991)

In re A.M.K., 420 N.W.2d 718 (Neb. 1988)

In re Adoption of Smith, 578 So.2d 988 (La. Ct. App. 1991)

Poe v. Leonard (2d Cir 2002)

United Nations (1971) - Declaration on the Rights of Mentally Retarded Persons - Resolution 2856 (XXVI) (December 20, 1971)

Vega v. Miller (2d Cir 2001)

By Daniel Pollack, MSW, JD, Professor at Yeshiva University’s School of Social Work in New York City and

Senior Fellow, Center for Adoption Research, University of Massachusetts Medical School, Worcester, MA

Dan can be contacted at (212) 960-0836

Social Workers as Expert Witnesses in Child Welfare Cases

Lawyers are increasingly calling upon social workers to serve as expert witnesses in cases involving children and families. Roles for social workers are emerging in the courtroom as expert witnesses in such areas as guardianship, forensic issues, child abuse and neglect, commitment hearings, education, and family custody evaluation.

As society gets more specialized and complicated, the courts are using the testimony of expert witnesses to help resolve cases. Whether defending social workers or agencies, or litigating on behalf of a client, having the right experienced expert witness can make the difference between winning or losing an important case.

How Social Work Experts Can Aid the Court

A social worker who is called as an expert witness should be able to provide:

* An in-depth analysis of the events and issues in question. For instance, in many states social workers are permitted to make diagnostic assessments.

* A thorough analysis of the procedures, policies and practices used by the social workers and agency to determine their appropriateness, legality, and conformity with current practice (e.g., were child abuse investigation procedures appropriately carried out?).

* A thorough analysis of the strengths and weaknesses of the case from many perspectives (e.g., clinical, administrative, managerial, supervisory).

* Reviewing pertinent documents, evaluating their findings, and developing conclusions regarding the evidence.

* Trial preparation and assistance during the discovery and trial phases.

* A familiarity with relevant and applicable case law.

* Testimony which is ethical, accurate and persuasive. Contrary to popular myth, expert witnesses are sworn to be completely truthful -- they cannot ‘fudge.’ It is important to remember that they are not advocates; their primary duty is to the court, not to the person who retained the expert.

* Special qualifications to testify in a specific case (i.e., Does the witness have any unique publications regarding the issues at bar? Does the witness demonstrate any bias for the plaintiff or defendant? Does the witness offer previous testifying experience? For whom? Which specific cases?

Assessing Qualifications

Who can be an expert witness and what is required to become an expert witness? Expert witnesses are usually expert consultants who testify under oath about the specifics of a case. They relate their conclusions and opinions about the actions in question. More than ever, social work issues in litigation require the services of expert witnesses. Experts are needed to inform judges and juries on technical matters and national standards of care for human services issues related to the cases brought before them.

When choosing social workers as expert witness, lawyers should look for people with qualifications that will help them accurately identify best practice standards, thus adding credibility to their position or allegations. Remember, social workers’ expertise has limits. For instance, the Massachusetts Supreme Judicial Court recently found in Commonwealth v. Frangipane, 744 NE2d 25 (MA 2001) that a social worker was improperly allowed to testify about memory loss and recovery.

The witness was called to discuss traumatic memory in the context of sexual abuse. She did not review any case records, nor did she assess the alleged victim. Rather, she articulated a phenomenon known as "dissociative memory loss," using her clinical experience and background of attending seminars on traumatic memory.

The Massachusetts Supreme Court did not take issue with the trial court's admitting her testimony on child abuse or trauma victim experience, but did find reversible error in allowing her to testify about how traumatic memories are stored and retrieved in the brain, which depended on advanced scientific knowledge of brain function. It held that these were physiological matters about which the social worker was not trained and was not expert.

Generally, witnesses must testify to facts, not opinions. The exception to this rule is for expert witnesses. Indeed, an expert witness is on the witness stand to offer an opinion. For this reason a social worker can be qualified as an expert witness only if she has special knowledge, skill, experience, training, or education.

Attorneys should look for social workers who have real work experience and an academic or theoretical background. They should be prepared to answer such questions as: Have you referred to any articles or books in preparing for this case? Which texts do you consider authoritative? Who are the authoritative authors in this field?

Because a case can be won or lost depending upon how well the expert witness delivers information in court, it is important that the experts can speak with authority and know how to communicate effectively. As soon as the expert witness takes the stand, the judge and jury begin to draw conclusions. So, the stature and appearance of an expert witness is crucial in establishing credibility.

Lawyers should seek effective expert witnesses who understand how a lawsuit unfolds through the pleadings, written discovery, depositions, hearings, and trial. The expert is a more valuable asset when there is an understanding of the overall court process, whether it is in criminal court, civil court, or before an administrative body.

Lawyers should especially seek social workers as expert witnesses whose responses to questions are succinct, and who can communicate confidence, sincerity and professionalism. Social workers as expert witnesses should never volunteer information outside their area of expertise; doing so can quickly weaken their credibility. One primary purpose of opposing legal counsel is to undermine the credibility of the expert witness, which can then nullify their testimony.

The ideal social work expert witness will have significant frontline and administrative experience and come across as someone who is unquestionably neutral. Indeed, many attorneys look for an expert witness who has testified as often for the prosecution as for the defense. The expert should be someone who has not changed jobs frequently, is known and respected in the wider social services community, has written extensively in professional journals, and is able to accurately and clearly summarize complex social work issues.

Social workers who have been trained in the use of objective assessment instruments and techniques which have been empirically validated are especially well-suited to be called as experts.

Costs

The cost of retaining social workers can vary considerably. They are usually paid by the hour. The hourly fee typically covers reviewing documents, interviewing key people in the case, travel expenses, and any other time spent working on the case. Rates for being deposed or testifying in court are usually higher than for other kinds of preparatory work.

Conclusion

The growing use of social workers as expert witness will likely continue. Social workers who serve in this role will play an important part in litigation and dispute resolution. Retaining a social work expert witness will not necessarily result in a victory in the courtroom. A credible expert witness, however, can offer invaluable information that can be used to present a more comprehensive case.

By Daniel Pollack, MSW, JD, Professor at Yeshiva University’s School of Social Work in New York City and

Senior Fellow, Center for Adoption Research, University of Massachusetts Medical School, Worcester, MA

Dan can be contacted at (212) 960-0836