Charisa Smith | University of Wisconsin-Madison (original) (raw)

Papers by Charisa Smith

Stanford law and policy review, Apr 1, 2015

The termination of parental rights in parents with mental challenges is a growing and crucial iss... more 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.

University of Miami law review, 2016

Social Science Research Network, 2004

In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile... more In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile proceedings, including cases involving child abuse and neglect. While the bill was not approved, it would be re-introduced in the 2005 Session. To provide context for the discussion, we analyzed other states' positions on, and experiences with, this issue — including extensive statutory analysis and interviews with key stakeholders in states that have opened proceedings in whole, or in part.

The Americans with Disabilities Act (ADA) represents an underutilized advocacy tool for legal pra... more The Americans with Disabilities Act (ADA) represents an underutilized advocacy tool for legal practitioners in the termination of parental rights (TPR) cases of parents with mental disabilities. Historic federal precedent by two administrative agencies in January, 2015 clarified that the ADA can be used to defend parents with mental disabilities in the child welfare system, after many years of confusion on the state and federal level. This paper provides a socio-legal justification for utilizing the ADA in this context, along with a sound theoretical framework of disability rights discourse theory, Family Systems Theory, and Vulnerability Theory. The paper presents concrete strategies and potential challenges for practitioners to utilize the ADA in both administrative and litigative child welfare arenas, drawing from lessons in the special education context. However, the paper ultimately argues that a wholesale conceptual shift and extensive professional training on this matter are ...

Building upon this author’s previous work applying the new theoretical framework of Family System... more Building upon this author’s previous work applying the new theoretical framework of Family Systems Theory to termination of parental rights (TPR) cases in parents with mental challenges, New Jersey statutes and case law bear close examination as a focus jurisdiction. Too often, other states’ statutory presumptions of parental unfitness and statutory emphases on parental unfitness due to mental health can wrongfully lead to TPR. New Jersey’s legislature and courts are moving in the right direction by rejecting presumptions of unfitness due to parental mental health. In order for mentally challenged parents’ due process rights to be upheld, statutory schemes across the U.S. must be revisited to level the playing field. 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 mill...

Cutting edge juvenile brain development research has found that youth delinquency is normative ac... more Cutting edge juvenile brain development research has found that youth delinquency is normative across racial and socioeconomic groups, and due to neuroscientific prompts. Interviews with experts and policy advocates across the U.S. who utilize brain research reveals the trend of reform and removal of punitive youth sentencing measures.

Journal of Applied Research on Children Informing Policy For Children at Risk, 2013

LSN: Children's Rights (Topic), 2016

Pimps and johns who sexually exploit children garner instant public and scholarly outrage for the... more Pimps and johns who sexually exploit children garner instant public and scholarly outrage for their lust for a destructive “quick fix.” In actuality, many justifiably concerned scholars, policymakers, and members of the public continue to react over-simplistically and reflexively to the issue of child sex trafficking in the United States — also known as commercial sexual exploitation of children (CSEC) — in a manner intellectually akin to immediate gratification. Further, research reveals that the average john is an employed, married male of any given race or ethnicity, suggesting that over-simplification and knee-jerk thinking on CSEC are conspicuous. This Article raises provocative questions that too many others have avoided, while addressing a topic of immense public interest. CSEC occurs in all 50 states and is estimated to be a $290 million industry in Atlanta alone. The explosion of media attention, high-profile scandals, and sexualized popular culture have put CSEC front and ...

Legal approaches to sexual and gender-based harms between minors are both ineffective and under-e... more Legal approaches to sexual and gender-based harms between minors are both ineffective and under-examined. Despite the #MeToo movement, the flashpoint confirmation hearing of Supreme Court Justice Kavanaugh involving alleged high school peer sexual assault, and heightened public awareness, fundamental issues regarding individuals under age 18 remain ignored, over-simplified, or misunderstood. While the fields of children’s rights, family law, and criminal justice consistently wrestle with the continuum of human maturity and capacity in setting legal boundaries and rules, under-theorizing the #MeToo matter for youth will continue to perpetuate harm, toxic masculinity, and complicity in rape culture. This article bridges the gap between empirical reality and legal response in a crisis that cannot be understated. As many as 81% of students between grades 8 and 11 report experiencing school sexual harassment, and girls ages 16-19 are four times more likely than the general population to ...

The precursors to and process of termination of parental rights (TPR) proceedings in parents with... more 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 challe...

Legal approaches to sexual and gender-based harms between minors are both ineffective and under-e... more Legal approaches to sexual and gender-based harms between minors are both ineffective and under-examined. Despite the #MeToo movement, the flashpoint confirmation hearing of Supreme Court Justice Kavanaugh involving alleged high school peer sexual assault, and heightened public awareness, fundamental issues regarding individuals under age eighteen remain ignored, over-simplified, or misunderstood. While the fields of children’s rights, family law, and criminal justice consistently wrestle with the continuum of human maturity and capacity in setting legal boundaries and rules, under-theorizing the #MeToo matter for youth will continue to perpetuate harm, toxic masculinity, and complicity in rape culture. This Article bridges the gap between empirical reality and legal response in a crisis that cannot be understated. As many as 81% of students between grades eight and eleven report having ever experiencing school sexual harassment,1 and girls ages twelve to seventeen have the highest ...

The ADA represents an underutilized advocacy tool for legal practitioners in the TPR cases of par... more The ADA represents an underutilized advocacy tool for legal practitioners in the TPR cases of parents with mental disabilities. Historic federal precedent by two administrative agencies in January, 2015 clarified that the ADA can be used to defend parents with mental disabilities in the child welfare system, after many years of confusion on the state and federal level. The paper provides a socio-legal justification for utilizing the ADA in this context, along with a sound theoretical framework of disability rights discourse theory, Family Systems Theory, and Vulnerability Theory. I present concrete strategies and potential challenges for practitioners to utilize the ADA in both administrative and litigative child welfare arenas, drawing from lessons in the special education context. However, the paper ultimately argues that a wholesale conceptual shift and extensive professional training on this matter are required, to thoroughly protect vulnerable families and rescue overwhelmed public systems.

In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile... more In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile proceedings, including cases involving child abuse and neglect. While the bill was not approved, it would be re-introduced in the 2005 Session. To provide context for the discussion, we analyzed other states' positions on, and experiences with, this issue—including extensive statutory analysis and interviews with key stakeholders in states that have opened proceedings in whole, or in part.

In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile... more In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile proceedings, including cases involving child abuse and neglect. While the bill was not approved, it would be re-introduced in the 2005 Session. To provide context for the discussion, we analyzed other states' positions on, and experiences with, this issue—including extensive statutory analysis and interviews with key stakeholders in states that have opened proceedings in whole, or in part.

In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile... more In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile proceedings, including cases involving child abuse and neglect. While the bill was not approved, it would be re-introduced in the 2005 Session. To provide context for the discussion, we analyzed other states' positions on, and experiences with, this issue—including extensive statutory analysis and interviews with key stakeholders in states that have opened proceedings in whole, or in part.

Cutting edge juvenile brain development research has found that youth delinquency is normative ac... more Cutting edge juvenile brain development research has found that youth delinquency is normative across racial and socioeconomic groups, and due to neuroscientific prompts. Interviews with experts and policy advocates across the U.S. who utilize brain research reveal the trend of reform and removal of punitive youth sentencing measures.

Stanford law and policy review, Apr 1, 2015

The termination of parental rights in parents with mental challenges is a growing and crucial iss... more 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.

University of Miami law review, 2016

Social Science Research Network, 2004

In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile... more In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile proceedings, including cases involving child abuse and neglect. While the bill was not approved, it would be re-introduced in the 2005 Session. To provide context for the discussion, we analyzed other states' positions on, and experiences with, this issue — including extensive statutory analysis and interviews with key stakeholders in states that have opened proceedings in whole, or in part.

The Americans with Disabilities Act (ADA) represents an underutilized advocacy tool for legal pra... more The Americans with Disabilities Act (ADA) represents an underutilized advocacy tool for legal practitioners in the termination of parental rights (TPR) cases of parents with mental disabilities. Historic federal precedent by two administrative agencies in January, 2015 clarified that the ADA can be used to defend parents with mental disabilities in the child welfare system, after many years of confusion on the state and federal level. This paper provides a socio-legal justification for utilizing the ADA in this context, along with a sound theoretical framework of disability rights discourse theory, Family Systems Theory, and Vulnerability Theory. The paper presents concrete strategies and potential challenges for practitioners to utilize the ADA in both administrative and litigative child welfare arenas, drawing from lessons in the special education context. However, the paper ultimately argues that a wholesale conceptual shift and extensive professional training on this matter are ...

Building upon this author’s previous work applying the new theoretical framework of Family System... more Building upon this author’s previous work applying the new theoretical framework of Family Systems Theory to termination of parental rights (TPR) cases in parents with mental challenges, New Jersey statutes and case law bear close examination as a focus jurisdiction. Too often, other states’ statutory presumptions of parental unfitness and statutory emphases on parental unfitness due to mental health can wrongfully lead to TPR. New Jersey’s legislature and courts are moving in the right direction by rejecting presumptions of unfitness due to parental mental health. In order for mentally challenged parents’ due process rights to be upheld, statutory schemes across the U.S. must be revisited to level the playing field. 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 mill...

Cutting edge juvenile brain development research has found that youth delinquency is normative ac... more Cutting edge juvenile brain development research has found that youth delinquency is normative across racial and socioeconomic groups, and due to neuroscientific prompts. Interviews with experts and policy advocates across the U.S. who utilize brain research reveals the trend of reform and removal of punitive youth sentencing measures.

Journal of Applied Research on Children Informing Policy For Children at Risk, 2013

LSN: Children's Rights (Topic), 2016

Pimps and johns who sexually exploit children garner instant public and scholarly outrage for the... more Pimps and johns who sexually exploit children garner instant public and scholarly outrage for their lust for a destructive “quick fix.” In actuality, many justifiably concerned scholars, policymakers, and members of the public continue to react over-simplistically and reflexively to the issue of child sex trafficking in the United States — also known as commercial sexual exploitation of children (CSEC) — in a manner intellectually akin to immediate gratification. Further, research reveals that the average john is an employed, married male of any given race or ethnicity, suggesting that over-simplification and knee-jerk thinking on CSEC are conspicuous. This Article raises provocative questions that too many others have avoided, while addressing a topic of immense public interest. CSEC occurs in all 50 states and is estimated to be a $290 million industry in Atlanta alone. The explosion of media attention, high-profile scandals, and sexualized popular culture have put CSEC front and ...

Legal approaches to sexual and gender-based harms between minors are both ineffective and under-e... more Legal approaches to sexual and gender-based harms between minors are both ineffective and under-examined. Despite the #MeToo movement, the flashpoint confirmation hearing of Supreme Court Justice Kavanaugh involving alleged high school peer sexual assault, and heightened public awareness, fundamental issues regarding individuals under age 18 remain ignored, over-simplified, or misunderstood. While the fields of children’s rights, family law, and criminal justice consistently wrestle with the continuum of human maturity and capacity in setting legal boundaries and rules, under-theorizing the #MeToo matter for youth will continue to perpetuate harm, toxic masculinity, and complicity in rape culture. This article bridges the gap between empirical reality and legal response in a crisis that cannot be understated. As many as 81% of students between grades 8 and 11 report experiencing school sexual harassment, and girls ages 16-19 are four times more likely than the general population to ...

The precursors to and process of termination of parental rights (TPR) proceedings in parents with... more 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 challe...

Legal approaches to sexual and gender-based harms between minors are both ineffective and under-e... more Legal approaches to sexual and gender-based harms between minors are both ineffective and under-examined. Despite the #MeToo movement, the flashpoint confirmation hearing of Supreme Court Justice Kavanaugh involving alleged high school peer sexual assault, and heightened public awareness, fundamental issues regarding individuals under age eighteen remain ignored, over-simplified, or misunderstood. While the fields of children’s rights, family law, and criminal justice consistently wrestle with the continuum of human maturity and capacity in setting legal boundaries and rules, under-theorizing the #MeToo matter for youth will continue to perpetuate harm, toxic masculinity, and complicity in rape culture. This Article bridges the gap between empirical reality and legal response in a crisis that cannot be understated. As many as 81% of students between grades eight and eleven report having ever experiencing school sexual harassment,1 and girls ages twelve to seventeen have the highest ...

The ADA represents an underutilized advocacy tool for legal practitioners in the TPR cases of par... more The ADA represents an underutilized advocacy tool for legal practitioners in the TPR cases of parents with mental disabilities. Historic federal precedent by two administrative agencies in January, 2015 clarified that the ADA can be used to defend parents with mental disabilities in the child welfare system, after many years of confusion on the state and federal level. The paper provides a socio-legal justification for utilizing the ADA in this context, along with a sound theoretical framework of disability rights discourse theory, Family Systems Theory, and Vulnerability Theory. I present concrete strategies and potential challenges for practitioners to utilize the ADA in both administrative and litigative child welfare arenas, drawing from lessons in the special education context. However, the paper ultimately argues that a wholesale conceptual shift and extensive professional training on this matter are required, to thoroughly protect vulnerable families and rescue overwhelmed public systems.

In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile... more In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile proceedings, including cases involving child abuse and neglect. While the bill was not approved, it would be re-introduced in the 2005 Session. To provide context for the discussion, we analyzed other states' positions on, and experiences with, this issue—including extensive statutory analysis and interviews with key stakeholders in states that have opened proceedings in whole, or in part.

In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile... more In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile proceedings, including cases involving child abuse and neglect. While the bill was not approved, it would be re-introduced in the 2005 Session. To provide context for the discussion, we analyzed other states' positions on, and experiences with, this issue—including extensive statutory analysis and interviews with key stakeholders in states that have opened proceedings in whole, or in part.

In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile... more In the 2004 CT General Assembly session, a bill was introduced to open to the public all juvenile proceedings, including cases involving child abuse and neglect. While the bill was not approved, it would be re-introduced in the 2005 Session. To provide context for the discussion, we analyzed other states' positions on, and experiences with, this issue—including extensive statutory analysis and interviews with key stakeholders in states that have opened proceedings in whole, or in part.

Cutting edge juvenile brain development research has found that youth delinquency is normative ac... more Cutting edge juvenile brain development research has found that youth delinquency is normative across racial and socioeconomic groups, and due to neuroscientific prompts. Interviews with experts and policy advocates across the U.S. who utilize brain research reveal the trend of reform and removal of punitive youth sentencing measures.