Forensic Corner; T.P.R. to Get Treatment
Lee H. Haller, M.D.
We are all aware of how difficult it is for children
to receive appropriate and affordable psychiatric care.
A recent publication aptly describes the problem as
follows: "Parents should never be asked to choose between
getting mental health treatment for their child and
retaining legal custody of the child. Yet, for at least
twenty years, they have been asked to do just that.
Today, in half of the states almost one in four families
seeking mental health care for a child face such an
inhumane choice."
This is the situation for parents with a chronically,
severely mentally ill child who requires hospital or
residential care. Once private insurance is exhausted,
the family either spends personal resources, withdraws
the child from care, or voluntarily relinquishes custody
of the child to the state via a termination of parental
rights (TPR) action. The first alternative often is
not practical. The second option obviously is not viable.
This leaves the third option as the only one available.
The reason this option works is that once the child
becomes a ward of the state, (s)he becomes eligible
for Medicaid. This insurance does cover long-term treatment.
Frequently, children who are already Medicaid recipients
while remaining the legal prodigy of their parents,
cannot get the same services provided to them from Medicaid
as they can once parental rights are terminated, and
they become a part of the foster care system. Moreover,
in some states, the providers of residential treatment
will not accept Medicaid-eligible children unless the
parents have relinquished legal custody.
This problem is not new. Unlike many of the current
problems in the delivery of high-quality mental health
care, it is not caused by managed care. However, managed
care companies have exacerbated the problem by limiting
insurance coverage for mental health care, under both
private and public (Medicaid) insurance.
When parents voluntarily relinquish their rights to
a child, the child, in general, is not party to the
proceedings. Therefore, termination of parental rights
occurs without the child having any opportunity to speak.
A recent Court of Appeals decision in Maryland may
change this.2 The Maryland case involved a Child in
Need of Assistance (CINA) case. The sole legal parent
was deemed neglectful by the court. She had not responded
to efforts to improve her parenting. Therefore, the
state petitioned for termination of parental rights.
The child, through counsel, objected. Although the trial
court denied the child the opportunity to be heard,
the appellate court held that children do have that
right in TPR actions. Therefore, the case was remanded
to the trial court in order that the child be given
the opportunity to voice an opinion regarding whether
or not he wished to have his mother's parental rights
terminated.
If this court decision is found to be applicable to
voluntary termination of parental rights proceedings,
the affected children will be put in an untenable bind:
having to choose between acceding to his/her parent's
wishes, thereby becoming an orphan, or objecting to
the termination, which means no more treatment (because
there is no money).
This problem should not exist. States are free to choose
Medicaid options for coverage of needy children who
have chronic and severe medical or mental health conditions.
State and federal legislation can be enacted which obviates
the need for parents to relinquish custody in order
to get care for a child. We can help by communicating
with legislators to encourage them to enact new laws,
so that children can get the necessary psychiatric treatment
without having to become orphans.
Dr. Haller is in the private practice of forensic psychiatry
in Potomac, Maryland
Giliberti M, Schulzinger R: Relinquishing Custody:
The Tragic Result of Failure to Meet Children's Mental
Health Needs, Bazelon Center for Mental Health Law,
Washington, D.C., 2000, p.1. 2 In re Adoption/Guardianship
No. T97036005, 2000 WL 190552 (MD).
AACAP
News/July-August 2000 |
