The conundrum of family reunification: a theoretical, legal, and practical approach to reunification services for parents with mental disabilities.

AuthorSmith, Charisa

INTRODUCTION I. THE PROBLEM OF TPR IN PARENTS WITH MENTAL DISABILITIES A. The Nature of Mental Disabilities Faced by Many Parents B. The Effect of Mental Disabilities on Parenting Ability 1. More Often Neglect Than Abuse 2. Research Reveals the Potential Progress of Mentally Disabled Parents II. REVIEWING THE RATIONALE FOR SALVAGING BIOLOGICAL FAMILIES: APPLYING FAMILY SYSTEMS THEORY TO EMPLOY A HOLISTIC FAMILY WELLBEING STANDARD A. Insights from Vulnerability Theory B. The Harm Caused by TPR III. ADDRESSING THE GAPS IN FEDERAL AND STATE LAW ON FAMILY REUNIFICATION SERVICES A. States Presenting Particular Problems 1. The Devil Is in the Details 2. Unjust and Unworkable Bypasses, Timelines, and Funding Priorities B. Constitutional Issues C. No Private Right of Action to Remedy Insufficient Reunification Services IV. ADDRESSING THE GAPS IN SCHOLARSHIP V. APPLYING A NEW THEORETICAL FRAMEWORK AND IMPLEMENTING SUCCESSFUL REUINIFACTION SERVICES A. Reunification Services Tailored to Each Family's Needs B. Culturally Competent Reunification Programs C. Comprehensive and Effective Visitation Programs D. Extended Timelines E. Consistent Aftercare F. Addressing the Critics of Improved Reunification Services G. Recommendations for Statutory Reform 1. More specific statutes Are Needed, Legislators should utilize Model Guidelines 2. Legislators Need to Shift Funding Incentives 3. A Rebuttable Presumption in Favor of Reunification May Be Necessary 4. Cross-Agency Collaboration and Information Sharing Are Required H. Improving the Deliberative Processes Utilized Within Systems 1. Promoting Family Group Decision-Making 2. Promoting Other Forms of Alternative Dispute Resolution 3. Further Promoting the Agency of All Family Members 4. Finding Funding for Effective Programming 5. Improving the Role of Nonlegal Actors--A Need for Enhanced Training CONCLUSION INTRODUCTION

Scholars writing about family reunification for parents with mental disabilities facing termination of parental rights (TPR) proceedings have made several missteps. The matter remains a conundrum for scholars, legislators, courts, practitioners, and families alike. There is a need for a new approach to this issue.

TPR is the process whereby courts force biological parents to sever their legal ties with their children in favor of upholding the "child's best interests" by imbuing other, allegedly more well-suited individuals with those parental rights. At the point when a court is considering TPR, a child would have been removed from his parents' home for many months, and possibly even several years, due to charges of neglect or abuse. "Reunification" services are offered during the period between a child's removal from his biological home and the social service agency's filing for TPR, to try to help the biological family reunite and remedy the maltreatment. Termination proceedings are more formal than other family-court proceedings, and they are typically required before adoption can occur. A termination order requires a higher standard of proof than that required for foster care placement: "clear and convincing evidence" in termination proceedings compared to "a preponderance of the evidence" in foster care placements. (1) Although the federal Adoption and Safe Families Act (ASFA) of 1997 requires that state child welfare agencies and courts make "reasonable efforts" toward family reunification before TPR can take place, (2) federal statutes and case law provide little guidance to states about what "reasonable efforts" means. States have been left to interpret the concept of "reasonable efforts" toward reunification individually--too often to the detriment of families.

There are numerous ways that parents with mental disabilities can treat and manage their illnesses, improve their parenting skills, function successfully in society, and create safe and loving homes in which to regain and raise their children. Yet the care with which reunification services are statutorily and financially prioritized, publicly and privately administered, and interdisciplinarily designed is highly determinant of any family's fate. Scholars addressing this issue have failed to provide a solid theoretical framework to explain why reunification is so crucial. They also have failed to provide a thorough, interdisciplinary range of solutions to achieve successful family reunification.

TPR in parents with mental disabilities is a growing and crucial issue. In 2010, an estimated 45.9 million adults aged eighteen or older in the United States had some type of mental illness in the past year. This represents twenty percent of all adults in this country. (3) More than five million children in the United States have a parent with a serious mental illness such as schizophrenia, bipolar disorder, or major depression, and at least one million parents of children under eighteen have a serious psychiatric disorder. (4) 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 seventy to eighty percent of mentally ill parents have lost custody. (5)

In the last several decades, mentally disabled populations have become more integrated into society and have piqued the interest of multidisciplinary groups. Increasingly, the mentally disabled have moved from segregated institutions to mainstream living situations and multifaceted integration with mainstream society. (6) Today, many mental conditions are extremely treatable and do not permanently cause a parent to neglect or mistreat a child. Often, poor parenting behaviors can be unlearned by even developmentally delayed individuals. This matter has become a significant concern for health care providers and health care law experts, social service professionals in all jurisdictions, family courts, juvenile courts, criminal courts, problem-solving courts such as drug courts and domestic violence courts, unified family courts, and other courts dealing with this population. Evidence will show that conducting unnecessary and premature TPR proceedings only harms families, communities, and public systems. In fact, public systems are increasingly overwhelmed by this matter in an era of shrinking resources. Research from multiple disciplines reveals that communities across the nation should provide additional services and support to help parents with mental disabilities become equipped to care for their own children and reunite with them.

This Article provides a theoretical, legal, and practical approach to the matter of family-reunification services for parents with mental disabilities facing TPR. Part I describes the basic problem of TPR in parents with mental disabilities, explaining the mental disabilities that many parents face and the impact of mental illness on parenting ability. Part II builds upon previous work by this author and reviews an original theoretical framework of family systems theory--which is utilized in clinical and social work arenas and in the human rights community--to be applied to these issues going forward. Vulnerability theory and the harm caused by TPR also will be discussed. 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 sounder standard of "holistic family wellbeing." This necessary theoretical framework helps to explain why TPR should be avoided whenever possible and why family reunification is so crucial.

Part III discusses the significant gaps in federal and state law in defining, discerning, and providing reasonable efforts towards family reunification. Part IV discusses the gaps in scholarship on the matter of family-reunification services for parents with mental disabilities. 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. A few have reviewed select reunification programs that work, while others have even suggested that there be a legal presumption in favor of family reunification. However, those discussions lack a sound theoretical basis and a thorough, practical, interdisciplinary application of solutions. Piecemeal approaches are insufficient. It is paramount to engage in a theoretically sound, well-rounded discussion about what services are actually effective, what statutory reforms are necessary, and what both legal and nonlegal actors can do in practice.

Part V applies the lens of family systems theory and the proposed legal standard of "holistic family wellbeing" to discuss how reunification services for families featuring parents with mental disabilities should be viewed and practically implemented. Under these circumstances, the "family integrity" defended by our highest courts through the "reasonable efforts" provision should be upheld through the delivery of individually applied, highly effective, comprehensive family-reunification services. The types of reunification services that actually prove successful in reuniting families will be highlighted. Recommendations for federal and state statutory reform will be provided, including shifting funding incentives. A focus on "holistic family wellbeing" would mean that in specific court cases, attorneys for the parent(s), the child(ren), and the state should utilize collaborative family law and alternative dispute resolution. Whenever possible, attorneys should promote the express agency of their clients, receive in-depth training, and consider previously underutilized claims. Nonlegal actors in the child welfare system and its partnering service organizations likewise require...

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