The Conundrum of Family Reunification: A Theoretical, Legal, and Practical Approach to Reunification Services for Parents with Mental Disabilities

31 Pages Posted: 25 Sep 2014 Last revised: 19 Sep 2015

Date Written: August 31, 2014


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.

There are gaps in federal and state law on this issue. The federal Adoption and Safe Families Act (ASFA) requires that state child welfare agencies and courts make “reasonable efforts” towards family reunification before the termination of parental rights (TPR) can take place. However, federal statutes and case law provide little guidance to states about what “reasonable efforts” means, and states have been left to interpret that concept individually. Many state statutes even enable a “bypass” of the “reasonable efforts” standard when “clear and convincing” evidence allegedly shows that a parent's mental condition cannot be changed. Many states likewise place unjust, statutory and common law time limits on family reunification efforts in TPR cases.

Gaps in legal scholarship are also evident here. Legal scholars have begun to discuss the inadequacy of reunification services for mentally challenged parents, the tenuous link between mental health services and child welfare agency action, the need for enhanced attorney and child welfare worker preparation in this arena, and a need for cultural competence in reunification services. Others have even suggested that there be a rebuttable presumption in favor of family reunification. However, those discussions lack a sound theoretical basis and a practical application of solutions.

As is featured in previous work of this author, a new theoretical framework of Family Systems Theory -- which is utilized in clinical and social work arenas -- must first be applied. Under this theoretical framework, the vague and outdated “best interests of the child” standard, which is a legal standard used exclusively in family law cases, must be replaced with a more sound standard of “holistic family wellbeing.” Vulnerability Theory can add credence to this theoretical framework.

The discussion of reunification services for families featuring parents with mental challenges should then be conducted utilizing Family Systems Theory and a legal standard of “holistic family wellbeing.” Under these circumstances, the “family integrity” defended by our highest courts through the “reasonable efforts” provision should be upheld through the delivery of highly effective family reunification services. The application of Family Systems Theory ultimately requires reform in the law, service delivery, and professional practice. State and federal legislators must revisit the “reasonable efforts” standard, to include specific statutory language about the types of reunification services required and the need for flexible timelines. Courts, child welfare agencies, and service providers need to deliver proven reunification services and coordinated mental health treatment. In specific court cases, attorneys for the parent(s), the child(ren), and the state should focus on “holistic family wellbeing” utilizing collaborative family law and alternative dispute resolution, while advancing the agency of their clients. Child welfare workers and clinicians likewise require training in advanced methods of conflict resolution and clinical practice. These recommendations can ensure more successful family law practice and more successful family -- serving systems.

Keywords: termination of parental rights, abuse, neglect, child welfare, child protection, mental, reunification, family, reasonable efforts, parent, social service, vulnerability, disability, disabled, psychology, child, maltreatment

Suggested Citation

Smith, Charisa Kiyô, The Conundrum of Family Reunification: A Theoretical, Legal, and Practical Approach to Reunification Services for Parents with Mental Disabilities (August 31, 2014). 26 Stanford Law & Policy Review (2015). Available at SSRN:
No contact information is available for Charisa Kiyô Smith

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