- The Washington Times - Thursday, December 7, 2006

RICHMOND — Parents who cannot afford treatment for their severely mentally ill children shouldn’t have to hand them over to the foster care system to get them the help they need, Attorney General Robert F. McDonnell said Wednesday.

In an advisory opinion, Mr. McDonnell, a Republican, said a misinterpretation of the state Comprehensive Services Act by some localities has forced parents to choose between forgoing treatment and giving up their children to the state in order to access foster care mental health funding.

“Once the child is placed in foster care, mental health services are mandated by CSA,” Mr. McDonnell wrote. “However, this choice infringes upon the compelling state interest in supporting and maintaining the family unit.”

He said the General Assembly intended the 1992 law to be interpreted broadly to make services available to any child who needs services, regardless of who has custody.

“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,” Mr. McDonnell wrote.

He added that the “wrenching and potentially tragic” practice of compelling parents to surrender custody to the state also might violate the U.S. Constitution, which protects parents’ right to determine the care and custody of their children.

Attorney generals’ opinions are not binding but carry some weight with judges, legislators and executive branch officials. The opinion was sought by Delegate William H. Fralin Jr., Roanoke Republican, who has unsuccessfully pushed legislation addressing the problem.

Mr. Fralin called Mr. McDonnell’s opinion “a significant step” but said further action may be needed to ensure that the advice is followed.

“We may need legislation to tighten it up and nail it down,” Mr. Fralin said.

At the very least, the General Assembly will have to come up with additional funds to provide services for children whose parents have opted to skip treatment for them rather than give up custody. Officials don’t know how many parents have made that choice.

Nearly 2,400 children were voluntarily placed in foster care from 2003 through 2005, according to the Department of Social Services. However, not all of those placements were for the primary purpose of obtaining mental health services.

State budget analysts who reviewed Mr. Fralin’s legislation estimated it would cost state and local governments about $3 million for every 100 children provided mental health services outside the foster care system.

Mr. McDonnell’s chief deputy, William C. Mims, noted that the Joint Legislative Audit and Review Commission is expected to recommend Comprehensive Services Act reforms next week, and a commission formed by the Virginia Supreme Court’s chief justice will issue a report next year.

“There are some legislative changes needed to ensure that children who have mental health problems are able to get help before they have to go into a residential facility,” Mr. Mims said. “Right now, that continuum of services often is not available.”

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