NCJ Number
96467
Journal
University of Pittsburg Law Review Volume: 44 Issue: 4 Dated: (Summer 1983) Pages: 879-927
Date Published
1983
Length
49 pages
Annotation
This article examines the state of the law regarding the termination of parental rights of prisoners and of the mentally impaired as it is reflected in both statutory and case law throughout the country.
Abstract
Five States (Arizona, Rhode Island, California, Wisconsin, and Michigan) have statutes that deal specifically with incarceration as a basis for termination of parental rights. Of the other 45 State statutes, some discuss termination in terms of the moral unfitness of parents, others refer to the association of either the parents or the child with undesirables, and still others address various forms of abandonment and neglect. Further, those statutes that provide for the termination of the parental rights of the mentally impaired, based on the mere presence of the mental impairment, are analyzed. Of these States (Arizona, Georgia, Nebraska, and New York), New York has the most progressive and complete statutory scheme in relation to the termination of the parental rights of mentally impaired parents. The interests of the parties involved are considered, and the constitutional issues that must be decided are identified. Attention is focused on two methods of analysis used by the courts: that derived from the doctrine of irrebuttable presumptions and the procedural requirements flowing from the due process guarantees of the constitution. An irrebuttable presumption of unfitness to parent based on the fact of incarceration or of mental impairment is found unable to withstand constitutional scrutiny. Included are 240 case notes. An appendix presents a summary of State practices concerning grounds for terminating parental rights.