This week the Minnesota Court of Appeals reversed a district court ruling that prevented a 27-year-old man from marrying a woman, because he has a mental illness. His parents don’t believe he fully understands what marriage is.
Marriage is a civil right, the court said. “It is, however, subject to reasonable regulation by the state, provided that such regulations ‘do not significantly interfere with decisions to enter into the marital relationship.'”
The court didn’t grant Michael O’Brien the right to marry, however. It sent the case back to the district court.
“When determining whether a ward is competent to marry, the burden of proof lies with those challenging the ward’s competence, and their evidence should be supported by expert testimony,” Judge John Smith said. “The district court must make specific findings that address the ward’s ability to understand the meaning, rights, and obligations of marriage.”
The case is a good example of an under-the-radar debate over what civil rights those with a mental illness should enjoy.
ProPublica is reporting today on an extension of that debate: Should the mentally ill lose their children because they might pose a risk to their children by virtue of their illness?
Under a concept sometimes called “predictive neglect,” Missouri and about 30 other states allow courts to terminate a parent’s connection to a child if authorities conclude a mother or father has a mental illness that renders them incapable of safely raising the child.
Officials usually must present evidence that the illness poses a threat. Most cases involve significant mental illness, not run-of-the-mill depression or anxiety. Yet there need be no evidence of actual harm or neglect, just a conclusion that there is a risk of it.
States typically do not track how many parental termination cases are related to mental illness, or how often parents have lost children based on a diagnosis.
New York, one of the few states that does tally such cases, has about 200 parental terminations annually based on mental disability, a category that includes both mental illness and “mental retardation.” If there were a similar rate nationally, that would amount to several thousand cases per year.
The cases are typically sealed, and there’s no way to know how many involve court overreach.
In its investigation today, ProPublica says it’s impossible to know how many mentally ill parents are losing their children, because of the stigma of mental illness.
The laws permitting termination of parental rights were mostly written in an era when serious mental illness was assumed to disqualify patients from participation in normal life, including parenting.
Parents like Mindi may have been institutionalized. In many states, the mentally ill or intellectually disabled could be sterilized. The phrasing in the law has often changed—states have removed words like “feebleminded” and “depravity”—but the same concepts echo.
Indeed, a 2012 presidential commission report found that “parents with psychiatric disabilities experience the most significant discrimination when they attempt to exercise their fundamental right to create and maintain families.”
“When [mentally disabled] people were institutionalized, they could not keep their kids. Now they’re living on their own, and they’re not allowed to keep their kids,” said Patrick Yewell, who recently retired from a career as a foster care caseworker, supervisor and administrator in Kentucky’s child welfare system.
A 1997 federal law requires states that take children from a home to provide services to parents that could lead to them being reunited.
But the law doesn’t apply to disabilities — mental or physical– and five states — North Dakota among them — specifically list “mental illness” as one of the circumstances exempting them from trying to reunite the families.
Others on the list, according to ProPublica? Murdering, torturing or sexually abusing a child.
As near as we can tell, Minnesota does provide a specific listing of mental illness as a reason for removing children from a home as a precaution.
(h/t: Sasha Aslanian)