A recent review of state laws in the United States found that thirty-six states have laws that explicitly include disability-related grounds as a basis for terminating parental rights. All of them explicitly authorize termination for parental mental illness, thirty-two for intellectual or developmental disability, eighteen for emotional illness, and seven for physical disability. This report asserted that many of these state laws use outdated terminology and imprecise definitions, with eleven states assessing a parent's "emotional illness, mental illness and mental deficiency," a phrase commonly used in the 1940s and 1950s but considered inappropriate today.
This report contended that a significant concern about the inclusion of parental disability as a grounds for termination is that it "can shift the focus from a parent's behavior to a parent's condition," with the parent's disability becoming the focus of a child protection case. The report claimed that several states have recently removed the disability language and asserted that "[s]tates need to reconsider the inclusion of disability in child custody codes." CENTER FOR ADVANCED STUDIES IN CHILD WELFARE, UNIVERSITY OF MINNESOTA, RESEARCH AND EVALUATION: TERMINATION OF PARENTAL RIGHTS (2008), http://cehd.umn.edu/SSW/cascw/research/tpr/ default.asp.
In Virginia, parental rights may be terminated if a judge finds, based upon clear and convincing evidence, that parental termination is in the best interests of the child and (1) the neglect or abuse suffered by the child presented a serious and substantial threat to the child's life, health, or development; and (2) it is not reasonably likely that the conditions that resulted in this neglect or abuse can be substantially corrected or eliminated so as to allow the child's safe return within a reasonable period of time. Proof that a parent is "suffering from a mental or emotional illness or mental deficiency of such severity that there is no reasonable expectation that such parent will be able to undertake responsibility for the care needed by the child" is considered "prima facie evidence" that the conditions for termination have been met. VA. CODE ANN. [section] 16.1-283(B) (2008).
A child in Virginia was placed in foster care in October of 2004 after the child's mother, who was not taking any anti-psychotic medication at the time, suffered a "psychotic breakdown," had to be hospitalized, and was unable to care for the child. The local social services agency found the family home filthy and was unable to locate the father, who appeared uninvolved with and uneducated about the mother's condition. After a period of time in foster care, the social services agency convinced a local county court to terminate the parental rights of both the mother and the father.
The mother and the father appealed the termination of their parental rights, claiming that the evidence was insufficient to terminate their parental rights. The Virginia Court of Appeals reversed the lower court ruling. It emphasized that the paramount consideration was the best interests of the child, but that the law should be interpreted consistently with the prescribed governmental objective of preserving the parent-child relationship if possible. …