Frequently having exhausted their own ability to access mental health services needed by their children, parents across the country have given up legal custody of their children and placed them in foster care to obtain access to these services. A national survey conducted in 2001 that received responses from nineteen states found that 12,700 children were placed in child welfare or juvenile justice systems to get mental-health care. United States General Accounting Office, Child Welfare and Juvenile Justice: Several Factors Influence the Placement of Children Solely to Obtain Mental Health Services (2003), http://www.gao.gov/new.items/d03685t.pdf.
Nearly 2,400 children were voluntarily placed in foster care in Virginia from 2003 through 2005. The Virginia State Executive Council in 2004 reported that between 23% and 27% of the children in foster care in Virginia were admitted voluntarily by parents or guardians in hopes of obtaining treatment. These parents often employ a series of in-home services and private treatment center day placements, as well as a wide range of different medications, only to find that these options fail to resolve their child's mental health problems. Another option is to place the child in a residential treatment program at a psychiatric hospital. Such programs, however, can cost around $1,000 a day and the family's private health insurance may not cover this or other forms of mental health treatment.
If a child is placed in foster care, however, the federal government has mandated that states provide mental health services. In Virginia, as in a number of states, most of the state money to help pay for mental health treatment for children comes from a single pool of state funds for mental health. This arrangement was made because public money for mental health had formerly been divided among various state agencies who each had their own mental health budget and menu of what could be offered a child in need. This fragmented system broke down for children with problems that were handled by multiple agencies.
As a result, the Comprehensive Services Act (CSA) was passed in 1992, which pooled together many of these funding streams to enhance flexibility and to facilitate tailor-made programs to meet the needs of a given child. However, because federal law mandated mental-health services for children in foster care, these children received first priority in accessing these limited funds. Indeed, it has been estimated that 95% of the state's budget for state aid for children's mental health goes to children in foster care or children who are in special-education programs who also require residential services, leaving little for other children. Amy Biegelsen, The Last Resort, STYLE (Aug. 9, 2006), http://www.styleweekly. com/article.asp?idarticle=12753.
This situation led to an inquiry being posed to the Virginia Attorney General, Robert F. McDonnell, whether the CSA specifically requires that parents give up custody of their children to gain access to these state-funded mental health services. …