Instuctions for Mental Illness/MR TPR Experts

You have been assigned by the court to evaluate a parent who is the subject of a termination of parental rights proceeding.  DSS will provide you with a full summary of the case within 10 days that will include the court petition, and mental health or historical records that are available, and a case summary of DSS involvement.  You must complete an evaluation of the parent and submit a written report to the court.

The attorney representing the parents is entitled to attend any evaluation sessions and the other attorneys may also choose to attend.  If any attorney is present, they should not interfere in any way with the course of the evaluation. The law provides for a waiver of all privileges regarding your evaluation, so you do not need to obtain any releases from the parent.   Please inform DSS immediately if the parent fails to attend the evaluations or refuses to communicate and cooperate with you.  The court is expecting this report within the next 60 days.  If the case goes to trial, you may be called as a witness and the attorney calling you will speak with you at that time.  The following are areas that the court is expecting your report will address:

1. Is the parent mentally retarded/ currently mentally ill as that is defined in law?

Mental Retardation – A sub average intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior to such an extent that if the child were placed in or returned to the custody of the parent, the child would be in danger of becoming neglected.

Mental Illness – A mental disease or condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that if the child were placed in or returned to the parent, the child would be in danger of becoming neglected. If in regards to this definition, you would like further definition of the meaning of “neglect”, please contact the DSS attorney involved in the case.

2.  Is the parent presently unable, due to the extent of the mental retardation/ mental illness, unable to provide properly adequate care and supervision to the child?

The issue is whether the parent can provide safe full time care for the child if the child lives in the parent’s home.  This is to be assessed without extraordinary measures – such as a 24 hours a day assistant in the home with the parent.  The issue is to be addressed taking into account the age, developmental level and any special needs of the child in question. If you would like more information regarding the child’s specific situation, please contact the DSS attorney in the case.

3. Is the parent likely to remain unable to care for the child in the foreseeable future due to the extent of the parent’s mental retardation/ mental illness?

In making this assessment you may consider current services available to persons who are mentally retarded/ mentally ill but you are not to consider experimental or hypothetical measures.  You may rely on the parent’s history of past cooperation or improvement or lack thereof to draw conclusions about any future prognosis.  In the future, given your evaluation and prognosis, do you believe that the parent will be able to safely care full time for the child in the parent’s home without extraordinary measures such as 24 hour a day assistance?

Source: NYSCCC conference workshop presentation by Margaret A. Burt, Esq., mburt5@aol.com. Copyright 2010, Reprinted with permission of the author.

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