The termination of parental rights in parents with mental disabilities is a growing and crucial issue. In 2010, an estimated 45.9 million adults in the United States had experienced a mental illness in the past year. This represents twenty percent of the adult population. 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. 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. Public systems are overwhelmed by this matter in an era of shrinking resources. However, often parents with mental health needs are willing to accept treatment and are worthy of regaining custody.

There are many gaps in the law on this issue. The federal Adoption and Safe Families Act (ASFA) requires that state child welfare agencies and courts make “reasonable efforts” toward 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 this concept individually. Many state statutes even enable a “bypass” of the “reasonable efforts” standard due to a parent’s mental condition. Many states likewise place unjust time limits on family-reunification efforts in TPR cases.

Gaps in the legal scholarship are also evident. Discussions by legal scholars lack a sound theoretical basis and a thorough, 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 Under this theoretical framework, the vague and outdated “best interests of the child” standard, which is a legal standard used exclusively in family law cases, must be replaced with a more sound standard of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 provide additional insight in this matter.

The discussion of reunification services for families featuring parents with mental disabilities should 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. State and federal legislators must revisit the “reasonable efforts” standard, to include more specific statutory language. Courts, child welfare agencies, and service providers need to deliver the most proven types of reunification services and coordinated mental health treatment available. In specific court cases, attorneys should focus on “holistic family wellbeing” utilizing alternative dispute resolution and promoting the enhanced agency of their clients. Nonlegal professionals likewise require training in the most advanced methods of conflict resolution and clinical practice. These recommendations will ensure more successful family law practice and more successful family-serving systems.