Guidance for Attorneys When Children's Mental Health Concerns Are Implicated

• Publication year: 2002
• Pages: 33
• Citation: Vol. 31 No. 10 Pg. 33

31 Colo.Law. 33 Colorado Lawyer 2002.

2002, October, Pg. 33. Guidance for Attorneys When Children's Mental Health Concerns are Implicated

---

33

Vol. 31, No. 10, Pg. 33

The Colorado Lawyer
October 2002
Vol. 31, No. 10 [Page 33]

Children and the Law

Guidance for Attorneys When Children's Mental Health Concerns are Implicated

by David Furman, Kathleen Janski

David Furman and Kathleen Janski are magistrates in the Denver Juvenile Court - (720) 856-8285. The authors wish to thank Bradley M. Bittan for his assistance in the preparation of this article

The juvenile court often must strike a balance between the child's need for treatment and the public's demand for safety.1 This is apparent when a child, suffering from a mental illness, is facing prosecution.2 It also is an issue when an abused or neglected child, suffering from a mental illness, is the subject of a dependency and neglect petition.3 In these circumstances, the juvenile court must assume the role previously occupied by the probate court to ensure that the child's mental health issues are fully addressed.4 The juvenile court has exclusive jurisdiction to decide probate matters (determining mental health status hospitalization, and medication issues) for any child who comes within the court's jurisdiction in such cases as child protection or delinquency

The interplay between the Children's Code and Probate Code, however, is often confusing. In an effort to assist practitioners to represent a child-client most effectively, this article examines the procedures, proof, and findings that must be considered when the child's mental health concerns are implicated, as well as the legal remedies available to the child.

Standards and Resources For Determining the Legal Competency of Children

The services and treatment available to mentally ill children vary depending on whether the children are otherwise within the juvenile court's jurisdiction. These services and treatment options are discussed in the following sections.

Mentally Ill Children Not
Within the Court's Jurisdiction

Children who do not come within the juvenile court's jurisdiction may be entitled to mental health treatment under the Child's Mental Health Treatment Act ("Mental Health Act").5 The Mental Health Act was passed in 1999 to make mental health services more available to families seeking mental health treatment for their children. Parents whose children are at risk for out-of-home placement because of a mental illness may apply to a community mental health center for mental health treatment services.6 The community mental health center must clinically assess the child's need for mental health services and, when warranted, provide needed treatment for the child or family.7

If the community mental health center denies the application for residential treatment services, the family must be advised by the center, both orally and in writing, of an appeal process that includes: (1) the center completing an internal appeal process within two working days, and (2) an objective mental health professional at the Colorado Department of Human Services ("CDHS") reviewing the center's final denial of services within five working days.8

Additionally, if the community mental health center determines that there is reasonable cause to know or suspect that a child has been subjected to abuse or neglect, the center must immediately contact the local Department of Human Services ("DHS") and, within ten business days, meet with the DHS and with the family.9 The DHS then must determine whether there is a sufficient factual basis to warrant the filing of a dependency and neglect action.10

Mentally Ill Children Within The Court's Jurisdiction

The Children's Code defines juvenile court procedures that apply when it appears that a child who comes within the court's jurisdiction may be mentally ill.11 Emergency mental health evaluation or treatment may be needed when the child is before the court during either a delinquency or child protection proceeding.12 The following procedures must be followed.

Mental Health Prescreen: The child must be given a mental health prescreen to determine whether the child is in need of a further mental evaluation.13 The prescreen must be conducted by a mental health professional as expeditiously as possible and may be conducted in any appropriate setting.14 A report of the mental health prescreen must be filed in the court the next business day after it is completed.15

No Mental Illness Indicated: If the prescreen indicates that the child is not mentally ill, any interested party may request a second prescreening.16 If the court grants this request, the court must make temporary custody orders pending the results of the prescreen.17 The court then may hold a...