Parents of children with serious mental health needs should not have to relinquish custody

Imagine raising a child with serious mental illness. You are doing your best and seeking intensive help for the child. 

In many states — though thankfully, not Minnesota — parents in this situation have to relinquish custody of their child to the state or county, including decisionmaking about school, medicine and more, just to access residential mental health treatment.  

It has nothing to do with the parents — no neglect or abuse has been found — and everything to do with the acuity of the mental health needs of the child. The term is “custody relinquishment,” and it brings anguish to parents around the country. It’s a horrible public policy and the time has come to change it.

The data is imperfect, but one report for instance estimated that between 2017 and 2019, 25,000 families might have relinquished custody. 

In Minnesota, where we don’t require parents to give up custody, we still commingle the process of getting children the mental health treatment they need with the child protection system. 

As with so many other frustrating details of our mental health system, this perverse wrinkle is about funding.  

When states use federal Title IV-E funds, i.e., child welfare funds, to pay for room and board in a residential facility, the state (or county) is required to have custody. In some states, if families cannot provide the level of in-patient, residential care their child needs, they are also charged with neglect. Until a recent legislative change, families in Minnesota whose children were stuck in an ER due to lack of options were also charged with neglect. Charged or not, families must go through a complicated child protection process to have their child admitted to residential treatment.

Some history: 

Back in 2008 the Minnesota Legislature created what’s called a voluntary placement agreement. This allowed our state to continue using federal Title IV-E funding for room and board for residential treatment but also allowed parents to retain legal custody and associated decision-making for their child. While parents still had to go through what we might call the child protection door, they did not have to appear in court or suffer through the county asking all relatives if they’d be willing to take a child into their home. The process was also greatly simplified.

When Congress passed the federal Family First Prevention Services Act Law in 2018, it required Minnesota to change both its child protection and voluntary placement laws. The upshot was that it made it more difficult for parents who have not been charged with abuse or neglect to access residential treatment for their child.

The process now includes the aforementioned relative search. While this makes sense for child protection to keep children with family members, it doesn’t make sense for a child who needs residential treatment as a medical necessity. As one parent told me, “This isn’t a sleepover.” (And imagine if your child needed a hospital stay for, say, leukemia, and we required you to go through the child protection process.)

A screening team comprising a variety of people — though not necessarily the treating mental health professional — meets and makes a recommendation about residential treatment. This highly bureaucratic approach might make sense for child protection, but not for a child solely needing treatment.

A qualified individual (again, not necessarily a mental health professional) makes a final recommendation. And this all goes through the courts as well.

The reason for this lengthy process was to make sure that children in foster care did not languish in mental health residential institutions. 

But unfortunately, families whose child has a serious mental illness and meets the medical necessity requirement for residential treatment are put through the same process. It is an unnecessary intrusion into these families’ lives when a mental health professional has already assessed and concluded that the child needs this level of treatment.

Due to these required changes under federal law, Minnesota passed a law known as the “third path.” This allows families to go through the children’s mental health system and use state funding to pay for room and board. Since Title IV-E dollars aren’t used, families don’t need to go through the child protection door, i.e., no relative searches, screening teams or court involvement. 

Unfortunately, the Legislature did not appropriate enough funding, so it is not being used.

The other way to avoid the child protection door is by using facilities that are funded by Medicaid.  But due to discriminatory federal policies, Medicaid can’t be used for most residential facilities.

Right now access is very limited, and it’s not unusual for children to be sent to other states for care or simply not receive any care at all. There are only four facilities (soon to be three) in Minnesota that can receive Medicaid funding, and unfortunately when the other treatment facilities lost Medicaid funding many of them closed. 

Since 2005 we’ve lost nearly 900 beds. 

So, we are losing capacity at a time when children are languishing in ERs, waiting in a hospital bed, or being housed in juvenile detention. 

There are some myths about residential treatment that need to be addressed. 

Many of the studies of effectiveness lump children removed from the home under child protection and who go into foster homes with children with serious mental illnesses being treated in a residential facility. There are two entirely different settings and so shouldn’t be evaluated together. 

Languishing is also a concern, but the average time a child spends in residential treatment typically ranges from 60 to 90 days, a bit longer for a few with higher severity.  

And if a child returns to residential treatment, that’s not necessarily failure. The symptoms of a mental illness can be cyclical and require a higher level of care again. 

I have met families whose children did well in residential treatment. There was treatment, structure, accountability, trauma-informed care, relationship building and even fun. The children’s aggression, suicidality and other symptoms were addressed. 

At a recent conference in Washington, D.C., I heard the story of a mom who had to relinquish custody of her child in Iowa, and it brought home the need to continue working on this issue. 

Funding should not be driving how we treat families, especially in light of the need for this level of care.

Here are some steps that can be taken:

• Fully fund the third path in Minnesota so we can keep families from having to go through that child protection door for good.
• Expand access to residential treatment by ensuring the state sets adequate payment rates and eliminate the barriers to federal funding.
• Create a training program for people working in direct care with youth in residential settings. 
• Develop a model state law that builds on what Minnesota did to allow voluntary placements and a third path so families in other states can avoid the child welfare system.

While we certainly want to avoid residential treatment and keep children with their families, the reality is that some children — despite intensive services — need this level of care. 

But under no circumstances should any family in this country be required to give up custody of their child to access medically necessary treatment.