Accessing Mental Health Care for Children: Relinquishing Custody to Save the Child

By Goodman, Gwen | Albany Law Review, Fall 2003 | Go to article overview

Accessing Mental Health Care for Children: Relinquishing Custody to Save the Child


Goodman, Gwen, Albany Law Review


I. 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. …

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