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| Not having it |
By Elizabeth Kruska
Let’s pretend for a moment you’re a parent. You’ve got a child, and the child breaks an arm. You take the child to the hospital and get treatment. This is exactly what you’d expect a parent to do. Let’s make the facts a little more serious. Let’s suppose the child has cancer and has to be admitted to the hospital. Parents take the child to the hospital and admit her. Sometimes the parents have to go home, so the child stays at the hospital because that’s where the treatment happens. This is exactly what you’d expect a parent to do.
In fact, if a parent didn’t do that, you’d expect that the state might step in and try to make sure the child got medical treatment. You’d expect this because, as a society, we are actually decent people and we don’t want to see kids harmed or hurt.
Let’s suppose instead that the child has some serious mental health issues and needs some residential psychiatric treatment. Again, probably you’d expect that everyone would be in favor of a parent making this treatment happen, and you wouldn’t think that the state would intervene and somehow say the parent was . . . . Not doing the right thing.
But that’s basically 100% what happened here. And SCOV is not having it.
Right quick: M.L. was a teenaged girl with mental health issues. Those issues got to the point that her mom didn’t feel she could take care of her in the home and keep her safe, so she had her hospitalized. She was hospitalized in a couple different places, eventually ending up at the Brattleboro Retreat.
While she was at the Retreat, a clinician there recommended she do additional residential treatment. Mom started to investigate residential treatment resources, but didn’t get something lined up immediately. Or, at least, not as quickly as DCF thought she should have.
DCF stepped in and filed a CHINS-C petition, alleging that M.L. was without proper parental care because she was beyond the control of her parent. Mom said, “Yeah, that’s why she’s in the hospital. She had serious mental health issues that needed treatment beyond what I could handle at home. But I’m doing the right thing by getting her treatment.”
So, Mom had a contested hearing, and the judge found by a very slim margin that the child was in need of care and supervision because she was beyond her parent’s control. Mom appeals.
SCOV, as I mentioned above, is not having it, and reverses the CHINS finding.
First of all, the state has to prove that the child was in need of care and supervision at the time the petition was filed. What was clear by the record below is that at the time the petition was filed, the child was receiving residential treatment—which was recommended by her doctor. And the record also showed that this was something that Mom had set up. It wasn’t shown that there was any sort of danger that M.L. was going to be discharged from the Retreat with nowhere to go. Maybe if appeared she was going to be discharged tomorrow without something else set up, then there could be a chance she was at risk of harm by not getting continuing treatment (and really, last I knew the Retreat had social workers who could provide some assistance with locating additional resources, but maybe that isn’t applicable here; the record doesn’t mention this part). The recommendation was just that further residential treatment was indicated, and that Mom was working on finding a place. (I just want to note this isn’t the order SCOV listed these in. But because I litigate CHINS cases pretty frequently, my brain immediately goes to the “at the time of the petition” language first. It’s just how I’m organized.)
Second, if we go down the road of saying that a child with mental health issues requiring residential treatment is sufficient to trigger a CHINS petition, we are in serious trouble. The point of the CHINS statute is to preserve the family (seriously! Read the statute sometime!) and to take kids away from their parents only when necessary to protect the child from serious harm or if it’s in the interest of public safety.
If a parent voluntarily admits a child to a mental health placement, because that’s what the child needs, it doesn’t suddenly trigger the need for state intervention in the parent-child relationship. It’s a different story if the child has unmet needs and a parent isn’t doing anything or enough to address it. Perhaps at that point, it’s appropriate for the state to step in.
The question is whether the child is protected. Here, Mom had ensured M.L. was getting treatment, and was working on getting future treatment.
Here’s where it gets tricky. Sometimes there are resources that might be available to a child as a result of being in DCF custody versus not. And it’s tempting to say, “well, if she’s in custody then we can get her _____.” It’s an argument that often gets made in different contexts in CHINS cases; let’s not get bogged down in that right now. It’s just that it’s something that definitely happens.
SCOV understands that sometimes CHINS cases progress past merits via stipulation because of future case planning and resources. If parties to choose to do that, they certainly can. But it’s not appropriate for the court to jump ahead to the future and use that as a backward-looking justification for finding CHINS. That’s akin to a judge in a civil case saying, “I don’t really think the defendant is liable, but the plaintiff could really use fifty million dollars, so I’ll just say they are.” Yeah, no.
This appears to be a situation where a parent was acting exactly how you’d expect her to act. Just because she wasn’t doing things on the time frame that DCF thought was the right time frame doesn’t make this a CHINS situation.
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