For Release: Dec. 6, 2006
Contact: J. Tucker Martin or David Clementson
Email: tucker.martin@oag.state.va.us or dclementson@oag.state.va.us
Phone: 804-786-2071
McDonnell Opinion: Parents Should not Be Forced to Lose Custody of Mentally-Ill Children
Opinion: “It is inconceivable that the best way to provide such services to a child and his family is by an interpretation that tears the family asunder.”
Richmond - Parents of severely mentally-ill children should not be forced to give up custody and have them placed in foster care in order to access needed mental health services, Attorney General Bob McDonnell said today in an official advisory opinion.
McDonnell’s opinion interpreted the Comprehensive Services Act. He also stated that the practice of child custody relinquishment in order to obtain mental health services, which he describes as “wrenching and potentially tragic,” may violate the U.S. Constitution.
Presently in some Virginia localities that have adopted a narrow interpretation of the Act, parents whose children suffer from severe mental illness, after exhausting all treatment options, are faced with the choice of foregoing needed medical services or voluntarily giving up custody to local social services agencies in order to access mental health funds available to children in foster care. McDonnell’s opinion takes issue with this practice: “The definition of ‘foster care services’ in [the Act] specifically states that such services are intended for the ‘child… and his family.’ It is inconceivable that the best way to provide such services to a child and his family is by an interpretation that tears the family asunder.”
McDonnell’s opinion interprets several Virginia statutes and concludes that children who are in need of mental health services because their “behavior, conduct or condition presents or results in a serious threat to their well-being and physical safety” and who the local social services agency has “identified as needing services to prevent or eliminate the need for foster care services” may receive mental health services provided by the Act if they otherwise meet statutory eligibility requirements.
The practice of custody relinquishment also “raises federal constitutional issues of paramount importance.” McDonnell’s opinion observes that parents have a fundamental right to make decisions regarding the care, custody, and control of their children. “The practical effect of a narrow interpretation of [the Act] is to interfere with this fundamental right.” McDonnell continues: “Quite simply, parents who cannot afford the costs of mental health treatment for their seriously mentally ill children effectively are told to relinquish their fundamental legal rights relating to… those children.”
McDonnell’s involvement was requested by Del. William Fralin (R-Roanoke), a leading advocate for children in the General Assembly. Today, Fralin applauded McDonnell’s analysis: “I appreciate the Attorney General’s careful examination of the Comprehensive Services Act. I look forward to working with him, Governor Kaine, and my colleagues to provide critically-needed services to children and families in crisis.”
Click here for the full opinion.
Click here to read a recent cover story in Style Weekly on the subject.
