The Capacity of a Mentally Retarded Parent to Consent to Adoption

It is universally acknowledged that persons with mentally retardation have, to the maximum degree possible, the same rights as all other people. As early as 1971, the United Nations passed its Declaration on the Rights of Mentally Retarded Persons. A key provision states that whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse.

In the United States, the ability to adopt the child of a mentally disabled parent hinges upon the termination of the disabled parent’s rights. When the parent is mentally disabled, the ability to obtain the parent’s consent is complex and varies between states, but is always determined pursuant to a hearing. Most states hold that the capacity to consent is determined by analyzing whether the parent is capable of caring for the child, and/or considerations of the best interest of the child. Therefore, in the absence of specific legislation to the contrary, a third party has no right to decide such legal matters for an otherwise competent individual.

Case Law Trends

In general there must be consent to adoption. Typical state codes hold that consent to adoption is required of the following parties:

(1) both natural parents of a child conceived or born in wedlock;

(2) the mother of a child born out of wedlock;

(3) the adoptee who is over 14 years of age, unless the judge waives this consent;

(4) the person or agency having custody of the child;

(5) the father of a child born out of wedlock, if he has maintained substantial and continuous or repeated contact with the child as demonstrated by payment of child support and visitation of the child at least monthly when permitted and financially able to do so, or regular communication with the child or agency having custody of the child when permitted and financially able to do so; and

(6) the father of a child born out of wedlock who is under 6 months of age at the time he is placed for adoption, who has lived continuously with the child or the child’s mother for 6 months before the adoption and who held himself out to be the father.

Capacity Hearings

In the case of parents who are mentally retarded, an initial hearing must be held to determine the capacity and fitness of the mentally retarded parent. In Helvey v. Rednour (1980) the Illinois Appellate Court held that the Illinois Adoption Act was unconstitutional because it appointed a guardian ad litem with the power to consent to adoption for mentally retarded parents. This Act was held unconstitutional because it omitted a fitness hearing, a violation of the Equal Protection and the Due Process Clauses of the Fourteenth Amendment. Since there was no requirement in the statute mandating a finding of parental unfitness as a condition precedent to the appointment of the guardian, the statute creates a presumption that all retarded parents are unfit, which is unconstitutional.

State Standards

During the hearing process, courts decide whether to terminate parental rights by using a combination of parental fitness and best interests of the child tests to determine whether the mentally retarded parent has the ability to consent. In Adoption of Abigail (1986), the court declared that the mental retardation of a parent is not sufficient grounds for the termination of parental rights. For the parental rights to be terminated, it is necessary to show that the mental retardation affects the parent’s fitness or the child’s well-being.

Withdrawal of Consent

An additional issue concerning the mentally retarded parent’s capacity to consent is raised by cases where parents want to rescind their consent after the adoption has occurred. If a mentally retarded parent attempts to withdraw consent, the court has to determine whether the mentally retarded person initially gave informed and intelligent consent to the adoption.

Some courts also consider the ability to nullify an adoption as a contract matter. In such a situation, the burden to prove incapacity to contract is on the mentally retarded parent, and must be proven by convincing evidence. In In re Adoption of Smith (1991), the mother, who was mildly retarded, wanted to invalidate her written surrender of her children because she did not comprehend that she was giving up her parental rights. The adoptive parents were trusted friends and neighbors of the mother. They cared for two of her children while the third was in the hospital, and aided the mother with shopping and paying bills. However, the mother was dependent on the adoptive parents and was induced into signing the agreement. The court held that the consent was void because she did not understand the repercussions of her act. Without such an understanding, there could have been no meeting of the minds and, therefore, the consent for the adoption was rescinded using basic contract theory.

Under what circumstances can state officials, in their capacities as defendants, be held liable? 42 USC § 1983 imposes liability on anyone who, acting under color of state law, deprives a person of “any rights, privileges, or immunities secured by the Constitution and laws.” In Blessing v. Freestone, the Supreme Court held that in order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law. The US Supreme Court has looked at three factors when determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States.

Practice Tips

To ensure these parents are properly represented, consider the following points:

* Strictly enforce notice requirements.

* Ensure appropriate services have been offered to the parent in a timely manner. Mental disability itself is not a reason for TPR.

* Be able to demonstrate that the parent can or cannot materially improve the behavior that precipitated the request for a TPR.

* The parent’s capacity to understand the ramifications and significance of the TPR proceeding is key. To the extent possible, the parent should understand the finality of the court proceeding, or, if the TPR is voluntary the consent must given knowingly and without coercion.

* Besides court-ordered physician testimony, secure documentation from the parent’s treating physician.

* Make sure there is no undue influence.

* Even though there may be grounds for TPR, there is a need to document that the proposed permanency plan is in the best interest of the child.

* State officials, in their capacity as defendants, often argue that they are entitled to qualified immunity. Consult an attorney to determine whether or not this immunity exists.


42 USC § 1983
Blessing v. Freestone (1997)
Good v. Zavala, 531 S.2d 909 (Ala. Civ. App. 1988)
Helvey v. Rednour, 408 N.E.2d 17 (Ill. App. Ct. 1980)
Hunter v. Bryant (1991)
In re A.M.K., 420 N.W.2d 718 (Neb. 1988)
In re Adoption of Smith, 578 So.2d 988 (La. Ct. App. 1991)
Poe v. Leonard (2d Cir 2002)
United Nations (1971) – Declaration on the Rights of Mentally Retarded Persons – Resolution 2856 (XXVI) (December 20, 1971)
Vega v. Miller (2d Cir 2001)

By Daniel Pollack, MSW, JD, Professor at Yeshiva University’s School of Social Work in New York City and
Senior Fellow, Center for Adoption Research, University of Massachusetts Medical School, Worcester, MA
Dan can be contacted at (212) 960-0836

1 Reply to "The Capacity of a Mentally Retarded Parent to Consent to Adoption"

  • notdd
    March 2, 2005 (1:19 am)

    Are you kidding?

    “consent is required when”……


    The statutes and case law establish when a court has discretion to overcome consent. They DO NOT ESTABLISH a lack of right to contest absent consent! They ‘only’ establish authorityt for a court to overcome it if the court so chooses.

    Recent authority obtained when a parents attorney has switched camps after briefing but prior to ruling and publication suggests otherwise, perhaps even to newly minted atty’s but is like those deceased children in Texas- legally irrelevent, killing them wasn’t legal, was cruel, and we all are ashamed especially those of us with kids 8 and under who where at risk not merely of adoption but of life that would have us kill them up to this week at least in America.

    To so strongly suggest that I could prove you are stating that consent is not required of father just because he has not paid support or lived with or held out etc. is fraud and pie in the sky hopefullness “that maybe retards will be the ticket to authority even more absurd then that which overpaid underworking absolutley corrupt contractors have so far foisted in the name of best interests but more to pad there paychecks for less work more clients and losses” and at that is nonsensical because the wayto get such authority is to contest then do nothing at trial and appeal after the court refuses to terminate instead begging the panel to be spared further assertions of clearly unable to adopt others kids and therefore in the way of there own being adopted only if the constitution matters which of course it doesn’t in juvenile court…..