holding that a failure to make reasonable accommodations would not negate a circuit court's decision to terminate parental rights because a "parent's rights under the ADA must be subordinated to the protected rights of the child."
How later courts described this case
- holding that a failure to make reasonable accommodations would not negate a circuit court's decision to terminate parental rights because a "parent's rights under the ADA must be subordinated to the protected rights of the child."
- “[E]ven if DHS had failed to make reasonable accommodations for Appellant’s disability, such failure would not negate the trial court’s decision to terminate Appellant’s parental rights.”
Written by the judges who cited it.
The opinion
Ray Thornton, Justice, dissenting. As the majority acknowledges, there is a heavy burden placed upon the party seeking to terminate the parent-child relationship. Bush v. Dietz, 284 Ark. 191 , 680 S.W.2d 704 (1984). As the United States Supreme Court stated when setting the “clear and convincing” standard of proof in Santosky v. Kramer, 455 U.S. 745 (1982), an allegation of parental unfitness must “adequately [convey] to the factfinder [a] level of subjective certainty about [the] factual conclusions . . . since the private interest affected is commanding and the threatened loss is permanent.” I respectfully dissent because I do not find that DHS met this burden in showing that J.T. is unable to learn how to be the kind of parent her daughter needs.
The Supreme Court has emphasized that a showing of parental unfitness must be made before the best interest of the child is considered in a parental-termination hearing. Smith v. Organization of Foster Families, 431 U.S. 816 (1978). As we pointed out in Bush v. Dietz, although the best interest of the child is a matter of primary concern in adoption proceedings, termination of the parental relationship is much more far reaching than a change of custody. Statutes permitting such termination are to be construed in light favoring continuation of rights of natural parents. Id. The proof falls short of the statutory and constitutional requirements articulated above. I cannot concur with the decision to uphold the trial court’s order of termination under the facts of this case.
Here, the court found that appellant’s mental illness was a factor that caused her daughter to enter foster care. The court found that appellant would need continued treatment for the rest of her fife, and concluded that, though she had improved, she had not yet become the type of parent her daughter needed, and that she was unable to become that type of parent. It is generally recognized that termination for mental illness requires that the mentally ill parent is unable to provide proper care for the child and that the inability is likely to continue for the foreseeable future. Ann M. Haralambie, Handling Child Custody, Abuse, and Adoption Cases, § 13.13 26 (2d ed. 1993); State v. Habas, 299 Or. 177 , 700 P.2d 225 (1993); In re J.N.M, 655 P.2d 1032 (Okla. 1982); In re Hime Y., 52 N.Y.S.2d 241 , 418 N.E.2d 1305 (1981).
As the majority notes, testimony indicated that, even though appellant had done everything required of her, she was not presently able to be the type of mother her daughter needs. However, no specific findings were made that appellant’s particular problems could not be cured or improved; there was only the bare statement of testimony that “no amount of training or classes would enable J.T. to meet the needs of T.T.” As the Oklahoma Supreme Court held in In re “the mere label of mental illness [should not be] allowed to replace an adequate investigation into the effect of the behavior . . . and the length of time the parents would probably be incapacitated.” Id. at 1036 (emphasis added).
The standard of clear and convincing evidence requires that there be specific proof of “the likelihood of correction or control of the condition” or that “the illness of [the parent] is of such a long term nature and has such a pathological effect on the children that termination is justified under constitutional standards.” Id.; see also In re Hime Y., supra. I do not believe the evidence supports such a finding in this case, and in my view, that lack of evidence is reflected in the conclusion that “J.T. is unable to learn how to be the kind of parent her daughter needs.” Here, parental counseling did not begin until after nineteen months of foster care, and the trial court reflected favorably on the improvements made in appellant’s parenting skills. The countervailing evidence simply falls far short of the “clear and convincing” standard required by the constitution. Santosky v. Kramer, supra. I would reverse and remand.