Accessing mental health care for children: relinquishing custody to save the child.

• Author: Goodman, Gwen

1. INTRODUCTION

   On February 18, 2000, the Washington Post printed an article documenting the struggles of several parents who have children with severe mental or emotional disabilities; one such story was particularly heartbreaking. (1) The Shamblin family--originally from Fairfax, Virginia--was forced to move fifty miles away in order to seek treatment for their autistic son, Gregory. (2) Gregory, who at the time the article was published was fourteen years old, experienced a period of violent outbursts requiring hospitalization. (3) The article noted that Gregory lived in a quiet group home for which the county paid $100,000 annually. (4) Although Gregory's placement suited him well, the Shamblins were facing a serious problem. The county, seeking to reduce costs, told the family that they either needed to take their child home or relinquish custody to the Department of Social Services. (5) If they chose the latter, the Department would become responsible for determining Gregory's treatment and could move him to a low-cost facility where he might not receive optimal care; Gregory's parents would lose their control over his treatment and placement. (6)

   The Fairfax area budget set for "non-mandated" care, such as the care that would have been provided to Gregory had he remained in that county, is small. (7) When that allocation is exhausted, the only way the state will pay for the services is by taking custody of a mentally disabled child, thereby placing the child in mandated care. (8)

   Seven and one-half million children in the U.S. have a mental disorder; half of these children have conditions causing serious disability. (9) Of those children with mental disorders, the Surgeon General estimates that 80% do not receive necessary treatment. (10) Finding and paying for adequate care for these children presents a serious problem for their families. Custody relinquishment--a nationwide issue--is becoming more commonplace as parents attempt to secure mental health services for their children. (11)

   Often, when mental health services are not available, the only solution is to relinquish custody of a child. Allowing the state to provide services may be necessary in the event that: community services are not available, (12) the school system has not classified the child as requiring services, (13) private insurance refuses to pay (14) or Medicaid is inaccessible. (15) As will be seen infra, the average middle-class family has an income too high to receive Medicaid, (16) yet too low to be able to pay for mental health services out-of-pocket. (17) Additionally, many residential facilities will only service children who are in state custody. (18)

   Once the state gains custody for the purpose of providing mental health services, it removes the child from his or her home and places the child either in foster care or a residential facility. Although several states have specific statutes prohibiting the requirement of custody in order to provide services, (19) the majority of states do not have such laws. Therefore, parents frequently believe that giving custody of their child to the state is their only means of receiving services.

   The problem of custody relinquishment is difficult to address and identify because there has been little litigation on the issue. When parents are asked to relinquish custody of their child, the court proceeding is often handled as one of parental abuse or neglect; therefore the actual reason for relinquishment is never addressed. (20) Parents, unaware that other means exist to access mental health services, can only raise the issue of custody relinquishment when they challenge it as unconstitutional or discriminatory.

   Part II of this comment surveys the nationwide problem of custody relinquishment, discusses the reasons for its occurrence, outlines the effects on the child and family, and explores existing federal laws that may help address the problem. Part III analyzes the problem at a closer level by focusing on New York's history in relation to custody relinquishment. Not only have New York's social service workers been known to ask parents to relinquish custody in order to access services, but one of the only constitutional decisions concerning the problem has emerged from this state. Finally, Part IV suggests possible solutions to the problem by discussing various state approaches as well as pending federal legislation.

2. THE NATIONWIDE PROBLEM

   1. Reasons for Custody Relinquishment and the Effect on the Family

      Parents throughout the nation are being asked by social service agencies to relinquish custody of their mentally ill children so that the state may provide the necessary mental health services. (21) Although addressed as a national problem, the issue occurs specifically on the state level, where the services are actually accessed. Though there may be no law which specifically requires a state to have custody of a child before providing mental health services, once in the child welfare system that child becomes eligible for such state services. Many institutions refuse to treat a child who is not in state custody, (22) so relinquishment is strongly recommended to parents as a means of receiving appropriate treatment for their children. (23) Many states, including New York, have laws or regulations that refer to this as a voluntary custody transfer. (24) No matter what name the state attaches to the phenomenon, parents still lose physical custody of their children and, therefore, lose the ability to fulfill their parental roles. Also, despite being categorized as voluntary, the custody transfer is usually the parents' last option for accessing appropriate services for their severely ill child. (25) Ultimately, in view of all of this, the custody transfer is anything but voluntary.

      The lack of services within a community and inadequate insurance coverage both contribute to this nationwide problem. (26) Most experts recommend that mental health services be provided in the home or in a community to allow for the least restrictive environment for treatment. (27) Studies have also shown that family preservation services, including prevention and early identification and day-treatment, are more effective in treating a child's mental health than residential treatment. (28) In most cases, home-based services provide more effective treatment of the child's illness, but these programs are only beginning to be implemented. Therefore, the only treatment option for many children may be residential care. (29) As stated supra, some residential facilities only accept children in state custody, and even if the child can be admitted while under parental custody, funding such care presents an extraordinary expense.

      Not only does the lack of available services within the community lead to custody relinquishment, but the failure of insurance to pay for mental health services has an even greater effect on the problem. The cost of mental health services presents a serious barrier to treatment. Most private insurers barely cover the cost or they limit the amount of insurance available for treatment of mental illness. (30) This issue is especially important in view of the fact that a typical family cannot afford to pay for these services out of pocket. (31) When insurance is unavailable to finance care, parents turn to public assistance for help because a child serviced through Medicaid must receive all the services necessary to assist in treating that child's health condition. (32) Unfortunately, parents frequently find out at this point that their child will not be accepted into some residential facilities unless the child is a ward of the state, and the child is not eligible for Medicaid because the parent's income is considered available to the child, or because some facilities do not accept Medicaid at all. (33) Custody relinquishment now appears to be the only option.

      Forced custody relinquishment causes trauma for both the child and family because it prevents the family from raising the child since it separates the sick child from the family that cannot afford treatment. Whether a child is placed in a foster home to receive state-funded community services, or in a residential facility does not matter because the parent, having little or no input, becomes an outsider in the child's life with little control over the child's education, religion, health, or moral beliefs. (34) Placing a child in the child welfare system assigns childrearing responsibilities to the system, while imposing requirements and restrictions on the parent's involvement in the child's life. (35) Additionally, getting the child back after giving up custody is often difficult. (36)

      Since most states handle health-related custody relinquishment under the same umbrella as cases of abuse and neglect, parents face the severe social stigma that their parenting skills are to blame for the separation. In some states, the social services department will actually classify these children as abused or neglected because that is the only means of accessing services. (37) Parents of disabled children often face criticism about their parenting skills from outside parties, such as neighbors or caseworkers.

   2. Federal Laws to Assist in Accessing Services

      Three federal statutes indirectly relate to the issue of custody relinquishment and can be used to assist parents in accessing services without relinquishing custody: the Title IV-E Foster Care and Adoption Assistance Program ("Title IV-E"), the Medicaid home-and-community-based waiver program, and the Individuals with Disabilities Education Act ("IDEA"). (38)

      First, Title IV-E reimburses states for the cost of placing children in foster care. States receive funding for the room and board of children under the age of eighteen who were either removed from their homes pursuant to a voluntary placement agreement or a judicial determination that removal was in the best interest of the child...