From Orphans to Families in Crisis: Parental Rights Matters in Maine Probate Courts

This Article examines the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine\u27s probate courts and identifies specific reforms to address both the structural and substantive law problems. The Article first reviews the development of Maine\u27s probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent\u27s estate to the current scope—a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. Maine\u27s probate courts not adjudicate questions implicating parental rights in a wide range of scenarios. However, the basic structure of Maine\u27s probate courts has remained unchanged since 1855. Maine law assigns exclusive jurisdiction of these often complex and contentious matters to a non-centralized group of county-based courts, each of which has limited resources and a single, part-time elected judge who usually has a busy law practice as his or her primary job

Dangerous Diagnoses, Risky Assumptions, and the Failed Experiment of “Sexually Violent Predator” Commitment

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty is appropriate and legitimate, with the aid of testimony from mental health professionals. This Article evaluates those assumptions and concludes that, because they were seriously flawed, the due process rationale used to uphold the SVP laws is invalid. The “Sexually Violent Predator” is a political and moral construct, not a medical classification. The implementation of SVP laws has resulted in dangerous distortions of both psychiatric expertise and important legal principles, and such distortions reveal an urgent need to reexamine the Supreme Court’s core rationale in upholding the SVP commitment experiment

Confronting Silence: The Constitution, Deaf Criminal Defendants, and the Right to Interpretation During Trial

For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant\u27s liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their situation remains unique. The complete reliance on spoken and written English in the criminal justice process systematically excludes full participation of almost all deaf people. This factor, compounded by the general ignorance about deafness among hearing people, places deaf defendants at a serious disadvantage. The federal government and most state legislatures recognize the injustice that results from a defendant\u27s inability to understand the proceedings that may result in punishment. These bodies have passed legislation allowing or requiring interpretation for defendants who cannot hear or understand English. This Comment argues, however, that the right to interpretation at criminal proceedings is already embodied in protections afforded all defendants through the Sixth and Fourteenth Amendments of the United States Constitution. The rights to effective assistance of counsel, to confront witnesses against the defense, to be present at trial and assist in the defense, and to understand the nature and cause of the charges, impose a duty on the government to provide a defendant the means to understand the proceedings. Although many courts have referred to the right to interpretation as having a basis in the Constitution, they nonetheless fail to treat it as such. By expecting defendants to secure trial rights for themselves and by granting the trial court judges broad discretion in ensuring these rights, appellate courts have allowed deaf defendants\u27 rights to fall below the constitutionally guaranteed minimum. The increasing amount of legislation addressing the need for interpretation has led many modern courts to focus on the statutory, rather than the constitutional, requirements of the right to interpretation. This approach usually results in less protection for deaf defendants. These courts analyze the need for interpretation as a “special right” for deaf people rather than viewing the statutes as legislated procedures to ensure and protect, but not supplant, the constitutional protection. The distinction between statutory and constitutional rights is significant. For example, habeas corpus relief for state court prisoners, requirements for waiver of a constitutional right, and the standard of review in appellate courts all depend on the characterization of the right as constitutional or statutory. The need of deaf defendants for interpretation provides an unfortunate example of how the failure to recognize the constitutional basis of the right to interpretation has resulted in disparate treatment of defendants in the courts. A recent Maine Supreme Judicial Court case, State v. Green, reveals many of the problems deaf defendants face in trial and appellate courts

Termination of Parental Rights as a Private Remedy: Rationales, Realities, and Remedies

Terminating a parent’s rights—a drastic measure—is commonly associated with public child welfare proceedings, where a state or county child protective services agency has removed a child from their home based on findings of abuse or neglect. In fact, state laws across the country also permit private individuals to petition a court to terminate another person’s parental rights. While private termination actions are not uncommon, there has been scant scholarly examination of these matters, their underlying purposes, and their role in contemporary family law. Termination of parental rights orders in any context interfere with parents’ fundamental constitutional rights, but parents in privately initiated proceedings are afforded fewer procedural protections than in those initiated by the state. Private termination actions further the stigmatization of substance use disorders, incarceration, poverty, and mental illness, and they disproportionately target parents from vulnerable and marginalized communities, especially parents who are low-income. The Article identifies and critiques three rationales for permitting termination of parental rights as a private remedy, each of which can, in nearly all contexts, be served equally well through another legal mechanism without permanently severing the legal parent-child relationship. Termination of a parent’s rights should be permitted only where there is no such alternative and where a court finds that there will be a specific affirmative benefit to the child, or harm avoided, by such termination. Courts should also ensure that rigorous procedural protections are extended to parents who are the subject of private termination petitions

Dangerous Diagnoses, Risky Assumptions, and the Failed Experiment of Sexually Violent Predator Commitment

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty is appropriate and legitimate, with the aid of testimony from mental health professionals

The Paradox of Personality: Mental Illness, Employment Discrimination, and The Americans With Disabilities Act

Both medicine and the law devote considerable concern to drawing lines, that is, to classifying and making distinctions. In medicine, such line-drawing occurs when a person is designated healthy or ill, normal or disordered. In the law, such line-drawing determines who does and does not bear legal responsibility for a given situation. This Article reviews the demarcation drawn by psychiatry and the courts between disfavored personality and mental illness, a dichotomy not based upon empirical science and therefore, wholly susceptible to social construction and implementation. While society may pathologize noxious personalities, thus making them disabilities, it is loath to extend disability-based legal protections to people with such personalities. Specifically, the application of the Americans with Disabilities Act (the ADA) to persons with impaired personalities is regarded by some as improperly removing or excusing their responsibility for their own behavior, while improperly assigning responsibility to the people who must interact with them, notably employers. Thus the invocation of personality in disability discrimination claims implicates a collision between societal and psychiatric attitudes towards certain psychological conditions and the law. In the case law developed under the ADA, courts have erred on the side of a restrictive view of the meaning of mental illness by employing approaches that ensure that personality issues are eliminated from ADA analyses. This trend has swept so broadly, the Article argues, as to render the ADA a limited tool both for remedying past discrimination and for compelling society to examine the place of people of with mental illness in the workplace

Dangerous Diagnoses, Risky Assumptions, and the Failed Experiment of Sexually Violent Predator Commitment

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty is appropriate and legitimate, with the aid of testimony from mental health professionals

The Paradox of Personality: Mental Illness, Employment Discrimination, and The Americans With Disabilities Act

Both medicine and the law devote considerable concern to drawing lines, that is, to classifying and making distinctions. In medicine, such line-drawing occurs when a person is designated healthy or ill, normal or disordered. In the law, such line-drawing determines who does and does not bear legal responsibility for a given situation. This Article reviews the demarcation drawn by psychiatry and the courts between disfavored personality and mental illness, a dichotomy not based upon empirical science and therefore, wholly susceptible to social construction and implementation. While society may pathologize noxious personalities, thus making them disabilities, it is loath to extend disability-based legal protections to people with such personalities. Specifically, the application of the Americans with Disabilities Act (the ADA) to persons with impaired personalities is regarded by some as improperly removing or excusing their responsibility for their own behavior, while improperly assigning responsibility to the people who must interact with them, notably employers. Thus the invocation of personality in disability discrimination claims implicates a collision between societal and psychiatric attitudes towards certain psychological conditions and the law. In the case law developed under the ADA, courts have erred on the side of a restrictive view of the meaning of mental illness by employing approaches that ensure that personality issues are eliminated from ADA analyses. This trend has swept so broadly, the Article argues, as to render the ADA a limited tool both for remedying past discrimination and for compelling society to examine the place of people of with mental illness in the workplace

From Orphans to Families in Crisis: Parental Rights Matters in Maine Probate Courts

This Article examines the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine’s probate courts and identifies specific reforms to address both the structural and substantive law problems. The Article first reviews the development of Maine’s probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent’s estate to the current scope: a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. Maine probate courts now adjudicate questions implicating parental rights in a wide range of scenarios. However, the basic structure of Maine’s probate courts has remained unchanged since 1855. Maine law assigns exclusive jurisdiction of these often complex and contentious matters to a non-centralized group of county-based courts, each of which has limited resources and a single, part-time elected judge who usually has a busy law practice as his or her primary job. The Article provides a close examination of the central issues involved in the parental rights matters currently adjudicated in the probate courts under the Maine Probate Code. It analyzes the challenges presented by the probate courts’ exclusive jurisdiction of these matters, including the incidence of conflicts and confusion when the Maine District Court has addressed a parental rights issue involving a child who is also the focus of a probate court proceeding, as well as the limitations presented by the probate courts’ structure and operation. Finally, the Article discusses potential reforms aimed at improving the adjudication of parental rights matters under the MPC, including eliminating the “split jurisdiction” between probate and district courts, structural changes to probate courts to ensure fairness and due process for all participants, and a substantive reforms to the MPC provisions concerning parental rights so that the law will better reflect the contexts in which these cases arise today and address the needs of the families involved in these cases. Combined, these proposed reforms would mitigate the acute problems described in the Article to better serve both the courts that must adjudicate these difficult cases and the families at the center of them