Unfit Through Unfairness: The Termination of Parental Rights Due to a Parent's Mental Challenges

Abstract

The precursors to and process of termination of parental rights (TPR) proceedings in parents with mental disabilities require examination because previous scholars have not approached this matter with the correct framework. The effects of mental illness on parenting must be explored because mental illness does not lead to de facto child abuse. An application of Family Systems Theory — which is highly utilized in clinical arenas and social work — requires the use of a legal standard of “holistic family wellbeing” in TPR proceedings, rather than the vague, outdated standard of “the child’s best interests.” An in-depth discussion of the origins, nature, and current human rights applications of Family Systems Theory reveals a natural fit with family law cases in general and with TPR in particular. Applying the “holistic family wellbeing” standard would make a more clinically and ethically sound determination about maintaining or severing family bonds, especially with the mentally challenged population. These concepts move the field towards cutting-edge family law practice.

The termination of parental rights in parents with mental challenges is a growing and crucial issue. In 2010, an estimated 45.9 million adults in the U.S. had experienced a mental illness in the past year. This represents 20% of the adult population. More than five million children in the U.S. have a parent with a serious mental illness such as schizophrenia, bipolar disorder, or major depression. Courts and child welfare systems too often assume that a parent is not amenable to treatment and is a danger to his or her child when strong symptoms of mental turmoil surface. Some studies report that as many as 70 to 80% of mentally ill parents have lost custody. Public systems are overwhelmed by this matter in an era of shrinking resources for such systems. However, often parents with mental health needs are willing to accept treatment, are able to participate in programming, and are worthy of regaining custody.

Keywords: parent, termination of parental rights, child, child welfare, disability, mental, psychology, abuse, neglect, maltreatment, social service, family