Mental Illness and the Capacity to Parent Under Maryland Law

FOR YOUR PRACTICE | FAMILY LAW

Mental Illness and the Capacity to Parent Under Maryland Law

BY NANCY B. GRIMM, ESQ. AND BRITTANY NWADIKE

Parents involved in divorce or custody disputes often face emotional stress, which can affect their ability to parent and impact their children’s behavior and stability. While many behaviors are controlled, there are other conditions that may significantly interfere with safe and healthy parenting.

Family courts are seeing an increase in litigants with mental health disorders,1 making it important for judges, attorneys, and evaluators to understand the effects of mental illness on both parents and children. In Maryland, a parent’s mental health is a key factor in determining parental fitness and the best interests of the child.

Underserved communities, including people of color and those in poverty, face disproportionate challenges in family courts, such as access barriers, racial bias, and difficulties with selfrepresentation. These issues are worsened when combined with mental health concerns. As the legal field becomes more aware of mental health issues, family courts are becoming more sensitive to their impact on parenting.

Consideration and Impact of Mental Health in Parental Fitness In Maryland, if a party makes a mental health claim and the other party in the case disputes the claim, the condition of the party is considered to be “in controversy.”2 This can occur in child custody cases due to a claim that mental health issues make 1

Robin M. Deutsch & Jeremy Clyman, Impact of Mental Illness on Parenting Capacity in a Child Custody Matter, 54 Family Court Review 29–38 (2016).

2 Circuit Court discovery - mental or physical examinations of persons, Peopleslaw, (Oct. 29, 2024), https://www.peoples-law.org/maryland-circuit-court-discovery-4-other-methods.

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them unfit to have custody or visitation rights.3 When a party’s mental condition is in controversy, the court can order a mental or physical examination to determine the party’s condition after a motion has been filed by a party.4 Maryland courts do not require mental illness to be a factor in determining parental fitness. The court in In re Yve S.5, emphasized that having a mental or emotional problem does not justify removing children from a natural parent who is competent to care for them.6 Similarly, the court in In re Adoption/ Guardianship of J.T.,7 held that mental illness is not a reason to terminate parental

Studies have demonstrated the negative impact of unnecessary and overly broad guardianship. rights, especially when the parent’s efforts to rehabilitate are beginning to bear some fruit.8 Federal law does not consider mental disability alone as sufficient grounds for terminating parental rights. The

3 4

courts must take a holistic view of the circumstances, considering whether mental disability has a detrimental impact on the child. For instance, in In re Adoption/Guardianship of Jayden G.,9 the Maryland Court of Appeals highlighted the importance of considering the best interests of the child, and upheld the termination of the mother’s parental rights due to her failure to address mental health needs and maintain stable employment or housing.10 Factors Considered in Custody Decisions Studies estimate that 12–45 percent of adults that seek psychiatric services are parents of minor children.11 Their children are at a higher risk for mental health issues, poor physical health, developmental disabilities, poverty, and adverse childhood experiences, including social, emotional and behavioral problems.12 An inconsistent family environment increases these risks 13 which may include poverty, marital difficulties, poor communication, substance abuse, hostile behavior, and single parent and low income households, and households with multiple risk factors.14 The impact of parental mental illness and substance abuse on children varies and is unpredictable, with not all children being negatively affected. The effect depends on how the condition influences parenting behaviors and family relationships.15 Courts evaluate multiple factors: severity and consistency of harmful behavior, the potential for worsening, the parent’s treatment compliance and effectiveness, and the child’s understanding of the

Id. Id.

5

In re Yve S., 373 Md. 551 (2003) 6 B. O. v. S. O., 252 Md. App. 486; In re Ashley S., 431 Md. 678; In re Barry E., 107 Md. App. 206.

7 In re Adoption/Guardianship of J.T., Nos. 2811, 3098, 2019 Md. App. LEXIS 502 (Spec. App. June 21, 2019).

8 In re R.W., 2022 Md. App. LEXIS 753; In re E.B., 2024 Md. App. LEXIS 321.

9 In re Adoption/Guardianship of Jayden G., 433 Md. 50 (2013).

10 Wilson v. N.J. Div. of Child Prot. & Permanency, 2019 U.S. Dist. LEXIS 144839.

11 Maryland Legal Aid, Child advocacy: Parenting with Mental Illness Maryland Family Law (2024).

12 Id.

13 Parenting with a mental health condition, Mental Health America (2024).

14 Id. 15 Parenting with a mental health condition, Mental Health America (2024).

16 Id. 17 In re Adoption/Guardianship No. 10941, 335 Md. 99 (1994).

18 In re H.I., 2019 Md. App. LEXIS 703.

19 In re Adoption/Guardianship No. 94339058/CAD, 120 Md. App. 88; In re Adoption/Guardianship No. T98314013, 133 Md. App. 401.

20 Parenting with a mental health condition, Mental Health America (2024).

21 In re Adoption/Guardianship of Jayden G., 433 Md. 50; In re Adoption/Guardianship of C.E., 464 Md. 26.

22 In re G.N., 2021 Md. App. LEXIS 753; In re Adoption/Guardianship of C.E., 464 Md. 26; In re Adoption/Guardianship of O.C., 2018 Md. App. LEXIS 901; In re Adoption/Guardianship of A.C., 2018 Md. App. LEXIS 168.

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condition.16 In assessing parenting capacity, courts also consider the parent’s ability to provide emotional support and maintain strong bonds, ensure safe physical care and supervision and remain engaged in the child’s life while supporting their developmental interests and growth.

Mental health issues must significantly affect a parent’s ability to care for their child to affect their rights. In In re Adoption/ Guardianship No. 10941,17 the court found a parent unfit due to persistent mental disorders that would not improve despite treatment.18. The court must consider all relevant factors together, without prioritizing one over others.19 Parents with serious mental illness face a higher risk of losing custody, especially if the illness is severe and there is no competent adult in the home.20 Other risks include family stress, economic hardship, and negative attitudes from mental health providers or social workers.

Factors for Termination of Parental Rights When considering parental rights termination, courts evaluate factors such as the child’s health and safety, the parent’s efforts to maintain contact and contribute to the child’s care, and any aggravating circumstances such as abuse or neglect.21 Clear and convincing evidence is needed to prove a parent is unfit or that exceptional circumstances exist that would make the continuation of the parental relationship detrimental to the child’s best interests.22 Untreated mental illness may only lead to

The need for effective representation of people with disabilities, including those who may be experiencing diminished capacity, is great.

termination in extreme cases when it poses a serious threat to the child’s safety.

Legal Standards and Rules Federal law recognizes the important role of parents in their children’s well-being, presuming they act in the child’s best interest unless there’s evidence of neglect or abuse.23 While a mental disability alone cannot justify terminating parental rights, courts may consider it when it detrimentally affects the child.24 and may consider a parent’s intellectual limitations only if they harm the child.25 The state must prove a parent is unfit by clear and convincing evidence terminating parental rights.26 As established in Troxel v.

Granville,27 the state may not grant visitation rights over the objection of a parent if it interferes with the parent’s fundamental liberty interest in the rearing of the child.28 Maryland’s Family Law Article § 5-323 and §5-1402.29 governs parental rights termination, requiring courts to weigh child health and safety as the primary consideration. While courts may consider a parent’s emotional or mental illness, such conditions must demonstrably impact the ability to provide care.30 Mental illness alone cannot justify termination if the parent is otherwise competent.31 § 9-107, guides custody decisions involving parental disability, including mental health issues, ensuring fair treatment based on evidence rather than presumed limitations.32

Statutory provisions like § 5-70133 and § 3-80134 define neglect as failure to provide proper care to the child, influenced by a parent’s mental health. Additionally, § 5-323 details conditions for terminating parental rights, including chronic neglect and mental health issues that impair a parent’s ability to care for their child.35 Through examining federal and state legal standards key legal principles emerge: the child’s best interest is paramount in custody decisions. Maryland law presumes that a child’s best interest lies with the natural parent, despite mental health issues.

Rehabilitation and Supportive Parenting Services Parents with mental health struggles can offer safe, loving care with proper support. Preventive interventions addressing risk factors and boosting protective factors help children develop resilience and thrive.36 These strategies improve family stability, strengthen parenting, and limit exposure to negative aspects of the parent’s illness.37 Courts must evaluate if “supportive parenting services” can help parents with mental health issues meet their responsibilities. In In re Adoption/Guardianship of J.T,38 the court emphasized the parent’s insight into her illness, treatment commitment, and prioritization of her child in determining fitness.39 While parents are presumed to act in their children’s best interests, the state can intervene if the child’s well-being is

23 Troxel v. Granville, 530 U.S. 57 (2000).

24 Id. 25 Wilson v. N.J. Div. of Child Prot. & Permanency, 2019 U.S. Dist. LEXIS 144839.

26 Wilkinson by & Through Wilkinson v. Balsam, 885 F. Supp. 651.

27 Troxel v. Granville, 530 U.S. 57 (2000).

28 Wilkinson by & Through Wilkinson v. Balsam, 885 F. Supp. 651; Ervin v. Davis, 2016 U.S. Dist. LEXIS 77383.

29 In re Adoption/Guardianship No. A91-71A, 334 Md. 538; In re Harry H., 103 Md. App. 67.

30 Burak v. Burak, 455 Md. 564; Clanton v. Sabine-Prosser, 2019 Md. App. LEXIS 802.

31 In re Ashley S., 431 Md. 678; In re Shirley B., 419 Md. 1.

32 Id. 33 § 5-701. Definitions. [Effective October 1, 2024].

34 § 3-801. Definitions. [Effective October 1, 2024].

35 § 5-323. Grant of guardianship — Nonconsensual.

36 Id. 37 Id. 38 In re Adoption/Guardianship of J.T., Nos. 2811, 3098, 2019 Md. App. LEXIS 502 (Spec. App. June 21, 2019).

39 In re R.W., 2022 Md. App. LEXIS 753.

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at risk.40 If a child faces imminent danger, the state can protect them, even challenging the parent’s decisions.41 Recommendations To help parents with mental illness retain custody, it’s important to advocate for timely mental health assessments and treatment for both parents and children. Using custody evaluators and courtappointed attorneys for the child protects the child’s rights. Present all evidence of parental capability and progress in managing mental health and propose supportive services when needed. Consider the confidentiality of mental health records and advise clients accordingly.

Stay updated on changes or new interpretations of Family Law Article §9-107 and related case law.42 Conclusions In Maryland, a parent’s mental health is a key factor in determining parental fitness and potential termination of parental rights. Courts assess whether mental health issues impact the ability to provide a safe environment for the child, but mental illness alone isn’t enough for termination unless it demonstrably impairs the parent’s ability to care for the child.43. The child’s safety and potential for parental rehabilitation are prioritized.44 The state must prove by clear evidence that a parent is unfit before terminating rights, ensuring due process.

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40 Ollar v. District of Columbia, 2022 U.S. Dist. LEXIS 162333

41 Id. 42 Md. Code Ann., Fam. Law § 9-107.

43 In re Ashley S., 431 Md. 678.

44 In re Ashley S., 431 Md. 678; In re Adoption/Guardianship of C.E., 464 Md. 26.

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Nancy Grimm, Esq., Family Law Director for Maryland Volunteer Lawyers Service (MVLS), is the first family law attorney for MVLS. Ms. Grimm, who has 20 over years of experience practicing family law, oversees the MVLS’ Judicare Program, which matches attorneys with clients facing contested custody and divorce cases. She also supports and mentors MVLS’ volunteer attorneys and advises applicants awaiting legal counsel. During her career she was an active member of MVLS’ Judicare panel representing underserved clients for the organization.

Brittany Nwadike is a Juris Doctor candidate at the University of Maryland Francis King Carey School of Law, class of 2026. She serves as a Staff Editor for the Journal of Health Care Law and Policy, holds an executive board position in the Student Health Law Organization, and is a member of the Thurgood Marshall Trial Team. Her academic achievements are recognized through the Maryland Law Scholar Award.