MATTER OF WW CHILDREN

Carrieri & Carrieri, P. C., Mineola, for petitioner. Helene Chowes, New York City, for respondent. Marva Prescod, Brooklyn, guardian ad litem. Legal Aid Society, Brooklyn (Vickie Light of counsel), Law Guardian.

OPINION OF THE COURT

CLAIRE T. PEARCE, J. The authorized agency, Little Flower Children's Services, hereinafter the agency, moves for an order terminating the parental rights of the respondent mother as to Tashien, born May 29, 1996, and Patrick, born December 12, 1994, based upon respondent's alleged inability to presently and for the foreseeable future adequately care for her children due to her mental incapacity.

Facts

On the motion of the agency, and without objection, the court took judicial notice of all petitions, findings of fact and orders the "Synergia" Family Care Program who testified that "Synergia" is an accredited program of OMRDD and appropriate for this respondent and her children and that the program was ready to accept the respondent and one child. (Hayman, Presumptions of Justice: Law, Politics, and the Mentally Retarded Parent, supra.)

Discussion

Historically, the mentally disabled have been subjected to discriminatory, often brutal, treatment such as ostracism, imprisonment, burning at the stake, and within more recent memory, forced sterilization (Buck v Bell, 274 US 200) and institutionalization. "Deinstitutionalization" is a relatively recent phenomena and many of its effects have yet to make a full impact on society. One of the effects is the growing number of mentally disabled that have or will exercise their right to procreate (cf. Skinner v Oklahoma, 316 US 535, 541) and their presumed consequent right to parent their progeny when they are able to do so. (See Montanaro, The Americans with Disabilities Act: Will the Court Get the Hint? Congress' Attempt to Raise the Status of Persons with Disabilities in Equal Protection Cases, 15 Pace L Rev 621; Hayman, Presumption of Justice: Law, Politics, and the Mentally Retarded Parent, 103 Harv L Rev1201.) "In 1990 Congress found that over 43,000,000 disabled Americans [including the mentally retarded] faced `serious and pervasive' discrimination without legal recourse in a number of `critical areas' including * * * `access to public services.' In response to such discrimination, Congress unanimously enacted the Americans with Disabilities Act (ADA)." (Mosier, "Trying to Cure a Seven-Year Itch": The ADA Defense in Termination of Parental Rights Actions, 37 Brandeis LJ 785 [emphasis added]; 42 USC § 12101 [a].) Although the ADA's provisions are not directly at issue here, Congress' findings and statement of purpose in this legislation can serve to further inform the legal community, mental health professionals and social service providers of the growing recognition of the rights of the disabled (i.e., the mentally retarded) and efforts to try to redress past and present inequities. It is noted that under the ADA a "public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements * * * [d]eny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit or service * * * or provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others" (28 CFR 35.130 [a], [b] [1] [i], [ii], [iii], [iv]). That "unlike individuals who have experienced discrimination on the basis of race, color, sex, natural origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination; individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion * * * and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities * * * individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond [their] control * * * and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society" (42 USC § 12101 [a] [4], [5], [7] [emphasis added]). The purpose of the ADA is in pertinent part: "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." (42 USC § 12101 [b].) All members of our society, including members of the mental health profession, are heirs to the prejudice, stereotyping and discrimination found by Congress. In keeping with the tenor of the findings and purpose of the ADA, Watkins expresses some powerful and thought-provoking concepts on stereotyping of the mentally retarded which reflect the strong direction of societal advances toward recognition of the need for equality of treatment for persons of "subnormal intellectual abilities."

"Neither developmental disability nor mental retardation is a disease or a disorder; they are simply descriptive labels and administrative terms `used to identify those persons who seem to exhibit subnormal intellectual abilities.' The only trait shared by persons labeled mentally retarded or developmentally disabled is their inability to perform at a certain level on various measurements of intellectual capacity. The term `mental retardation' in particular, with its roots in the Binet Intelligence Quotient (IQ) test, has been derided as having `little scientific integrity and minimal predictive or explanatory potential.' Nor does the term refer to a fixed level of ability: as new tests and standards have emerged to determine mental retardation or developmental disability, individuals have moved in and out of the class so labeled. The degree to which one is considered impaired may depend on specific measurement used, as well as on the examiner conducting the test. Thus, it is not unusual for an individual to be classified as severely mentally retarded in one examination and mildly retarded in another.

"Currently, there are over 250 known causes of mental retardation or developmental disability, and there are thought to be more unknown than known causes. Persons sharing the label share no common symptomatology. They may exhibit deficits in a variety of perceptual or communicative skills, but the extent and nature of the specific deficit varies from individual to individual. Moreover, intelligence does not remain static; like all persons, individuals labeled mentally retarded or developmentally disabled can learn to improve such things as comprehension and memory. In other words, they can learn how to learn.

"The one thing shared by persons labeled mentally retarded or developmentally disabled is the label itself and the diminished expectations and outright discrimination that so often accompany the label." (Watkins, Beyond Status: The Americans with Disabilities Act and the Parental Rights of People Labeled Developmentally Disabled or Mentally Retarded, 83 Cal L Rev 1415, 1422-1424 [emphasis added]; citing Hayman.)

In order to fairly and appropriately address the service needs of this population, every mentally retarded person should be entitled to an individualized assessment of his or her capacities and potential ability by specially trained and qualified mental health professionals experienced in treatment and habilitation resources available in the community, in addition to any routine examination and evaluation by a psychologist or from a determination of status, i.e., permanently neglectful, abandoning, mentally ill, mentally retarded, influenced by considerations of a child's presumed interests. A determination of status has a profound affect on what dispositions are legally permissible^[6] and are salutary to the child's "best interest" and ultimate welfare where that decision is appropriate. In no instance can a determination be made that a child's "best interests" is a simple equation of where the child is "better off." Almost every natural parent would lose such a determination because foster parents are by definition "better off" generally speaking than natural parents, or at least one would hope so. If that were the test the state would be faced with permanently caring for almost all of the children who are placed in foster care. (Matter of Corey L v Martin L, supra ; Matter of Sanjivini K., 47 NY2d 374; Matter of Michael B., supra .) There is no basis or authority for determining that the statutory scheme will allow for an independent determination of "best interests" unrelated to the respondent's incapacity. To so construe the statute would violate the respondent's rights of due process and equal protection which remain intact prior to an adjudication of incapacity for the foreseeable future. (Matter of Sylvia M., supra ; Stanley v Illinois, 405 US 645; Santosky v Kramer, 455 US 745; Matter of Michael B., supra ; see also, J.T. v Arkansas Dept. of Human Servs., 947 SW2d 761, 769 [Thornton, J., dissenting].)

Conclusion

The respondent's claim that the agency has failed to establish that she is mentally retarded based on an alleged head trauma suffered when she was about two years old is without merit. Mental Hygiene Law § 1.03 (21) defines mental retardation as "subaverage^[7] intellectual functioning which originates during the developmental period and is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment by the State of New York as qualified to provide such assistance. In view of the petitioner's failure to adduce evidence of any reasonable and fair attempt to determine the "adaptive ability" of the respondent to provide adequate care for her children in an environment outside of her mother's home, or that a plan for reunification of the subject children was otherwise determined to be deleterious to the children's best interest and occasioned the foreclosure of planning for reunification prior to the institution of this proceeding and further concession of a lack of diligent efforts by its failure to rebut the respondent's evidence of her present capacity, the petitioner has failed to sustain its burden by clear and convincing evidence. For all the reasons stated the petition is dismissed. [1] The Diagnostic and Statistical Manual of Mental Disorders: DSM-IV (4th ed) uses the term "adaptive functioning" and that is defined as "how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting." Adaptive functioning can be influenced by other factors "including education, motivation, personality characteristics, social and vocational opportunities, and the mental disorders and general medical conditions that may coexist with Mental Retardation." [2] See DSM-IV (supra at 40): "consideration should be given to the suitability of the instrument to the persons sociocultural background, education, associated handicaps (i.e., expressive speech problems), motivation and cooperation. For instance the presence of significant handicaps invalidates many adaptive scale norms." [3] The DSM-IV lists four degrees of mental retardation: (1) mild retardation, persons who have an IQ of 50 to 55 to approximately 70; (2) moderate retardation, persons who have an IQ of 35 to 40 to 50 to 55; (3) severe mental retardation, persons who have an IQ of 20 to 25 to 35 to 40; and (4) profound mental retardation, persons who have an IQ below 20 or 25. Borderline intellectual functioning does not come within the range of IQ's defined under mental retardation. Borderline intellectual functioning is defined in the DSM-IV as persons who have an IQ of 71 to 84 (cf. levels of retardation in Hayman, Presumptions of Justice: Law, Politics, and the Mentally Retarded Parent, supra at 1214). [4] While mental retardation and mental illness are quite different phenomena and not analogous for all purposes, this court uses them interchangeably here only for the purpose of defining mutual areas of disparate treatment. [5] Later decisions have determined that mentally retarded parents may be charged with permanent neglect. (Matter of Kimberly J., 216 AD2d 940; cf. Carrieri, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 52A, Social Services Law § 384-b, 1999 Pocket Part, at 253.) Mental retardation and permanent neglect held not to be mutually exclusive. The commentator submits "that concepts of mental retardation and failure to plan are mutually exclusive." (Id.) [6] Nonneglectful parents who are unable to care for their children due to the children's handicapping conditions which require "custodial care" are not the proper subject of neglect or termination proceedings. (See Joyner v Dumpson, 533 F Supp 233, revd 712 F2d 770 [Mansfield, J., concurring at 783-785] [where the Circuit Court reversed only in part and remanded the issue of whether the requirement made by the New York City Commissioner of Social Services that such parents relinquish temporary custody as a condition of receiving necessary services was a violation of the parents' constitutional rights of due process and equal protection as applied].) [7] Cf. DSM-IV definitions, supra; Hayman, Presumptions of Justice: Law, Politics and the Mentally Retarded Parent, supra at 1214.