Children in peril

Officials: Mentally ill children who don't get help can end up in criminal justice system

2012-05-19T20:10:00Z 2012-12-04T13:22:03Z Officials: Mentally ill children who don't get help can end up in criminal justice systemBy Marisa Kwiatkowski marisa.kwiatkowski@nwi.com, (219) 662-5333 nwitimes.com

A developmentally disabled Crown Point teen was handcuffed by police and taken to the juvenile detention center after ramming a broom handle into his parents' bedroom door.

A mentally ill teenager from Morgan County repeatedly banged her head against a car in a fit of rage.

A distraught adoptive mother from Wayne County reported her mentally ill son to police because she feared for her life.

All three youths ended up facing juvenile delinquency charges for behavior that resulted from their mental illness or developmental disability.

To child welfare advocates, the plights of these families demonstrate the state's failure to protect its most vulnerable children. Parents, judges, prosecutors, and other officials in Indiana say there is a multi-agency failure to provide mental health services to the children who need it most.

Officials said that leads to a grim reality: Children who don't get the services they need often wind up in the criminal justice system.

Desperate for help

Hobart resident Michele Degenais* said she worries her 16-year-old son will commit a serious act of violence before she can get him the help he needs.

Degenais and more than a dozen other parents throughout the state told The Times they haven't been able to access needed mental health services for their children.

Degenais' son, Cody, has been diagnosed with pervasive developmental disorder, moderate mental retardation, attention deficit hyperactivity disorder and grand mal seizures. He also was diagnosed with oppositional defiant disorder and post-traumatic stress disorder after a bad experience at a residential facility.

Cody has a history of aggressive behavior at home and in school. He has attacked his mother and the caregiver hired to help her. He choked his teacher and shoved school officials to the floor and against a wall, his mother said. He also threatened another student with scissors, school records provided by the family show.

His psychiatrist told the school district that Cody needs to be in a residential facility, his mother said.

"One day he could possibly hurt someone, and then it might be too late," the psychiatrist wrote in a letter to the district.

Degenais has approached multiple agencies and facilities to find help for her son — with little success. The state's Bureau of Developmental Disabilities Services pays for Cody's caregiver but said Degenais would have to let the Indiana Department of Child Services substantiate a finding of neglect against her to get Cody placed in a residential facility.

Degenais has money to pay for Cody's residential placement, but the only facility in the state that will accept someone with his level of need will not accept private payment.

"Cody not getting the help he needs puts everyone around him at risk," Degenais said.

Navigating the system

Judge Loretta Rush, who handles juvenile cases in Tippecanoe County, said the state's problem is twofold: There aren't enough providers to meet children's mental health needs, and it isn't clear how to navigate the network of state agencies.

The Bureau of Developmental Disabilities Services, Division of Mental Health and Addiction, Indiana Department of Education, Medicaid and DCS share responsibility for Indiana children who need such services.

Rush, who also presides over the state's Juvenile Justice Improvement Committee, said some parents clearly want help but can't get it.

"It would be nice if parents could access mental health services short of their children being wards of the court," she said.

When that doesn't happen, mentally ill and developmentally disabled children can enter the court system as "children in need of services" or as juvenile delinquents, depending on the situation.

A criminal label

Multiple prosecutors, public defenders and probation officers told The Times too many mentally ill children are entering the court system with juvenile delinquency cases. They said these children's crimes are the result of their mental illnesses or disabilities, and the children would be served better outside of the criminal justice system.

John Thorstad, chief probation officer in Starke County, said he has "some anguish" over the mentally ill children who end up in detention centers.

"It's unfortunate, but it happens," he said. "We deal with the kids we're given."

For a child to receive services through a juvenile delinquency case, he or she must be adjudicated, which is the juvenile equivalent of a criminal conviction. That action comes with a label that could follow children for the rest of their lives.

Juvenile adjudications may result in school suspensions or expulsions, limits on higher education, eviction from federally funded housing, suspension of a driver's license or permit, or the denial of military service applications, said Kaarin Lueck, a Wayne County-based public defender.

Court officials said children can petition to get their juvenile records expunged.

But some prosecutors and public defenders said a better option for mentally ill or disabled children facing criminal proceedings would be having the Indiana DCS file a petition for child in need of services 6, or CHINS 6. The law states that is applicable when "the child substantially endangers his/her own health or the health of another individual."

DCS rarely uses this portion of state law — a decision that infuriates some parents and court officials.

Using the law

DCS Director James Payne told The Times he does not like to use CHINS 6 because it creates an adversarial relationship between the parent and child. Under CHINS 6, the child and parents have separate attorneys, and the child's attorney is legally bound to defend the child's interests. The result likely is that the child will be placed in an institution.

Payne said using a child in need of services 1, or CHINS 1, is the best option under current law. That portion of the law applies when "the child's physical or mental condition is seriously impaired or seriously endangered as a result of the parent/guardian/custodian being unable, refusing or neglecting to supply the child with necessary food, clothing, shelter, medical care, education or supervision."

When CHINS 1 is substantiated, the child's parents' names could be added to the child abuse registry — though they can appeal afterward to get their names removed. Payne said he isn't sure how long that process takes.

Parents' names are not added to the child abuse registry under CHINS 6. Parents and court officials said they don't buy Payne's explanation for not using CHINS 6.

"When you have every single person touching this kid saying this needs to be a CHINS, and you can't make it a CHINS, there's something wrong with the system," public defender Lueck said.

Changes

Court officials blame a 2008 change in state law that took away prosecutors' ability to file CHINS cases. DCS became the only entity that can file them.

In an opinion released Tuesday, Morgan Circuit Court Judge Matthew Hanson called the law change "a grave mistake." He criticized DCS for having "unchecked" power over CHINS cases but not using it.

DCS spokeswoman Stephanie McFarland said the changes were designed to have prosecutors and DCS work within their areas of expertise. She pointed out legislators also took away DCS' ability to file criminal cases.

Public defender Michael Ice said Morgan County prosecutors directly requested CHINS 6 in at least eight cases over the last year, but DCS refused to file them. Ice, who worked as a DCS attorney in the 1990s, said he previously filed CHINS 6 cases when they were needed.

The Indiana Supreme Court does not keep statistics broken down by the types of CHINS cases, but officials told The Times that CHINS 6 has been used only a handful of times in recent history.

"The Legislature showed its intent that DCS was supposed to be handling these cases by putting (CHINS 6) in the statute," Ice said. "If DCS is not following it, they're not following the law."

No easy fixes

Lake Juvenile Court Judge Mary Beth Bonaventura, who has been on the bench for 30 years, said children's access to mental health services was a problem long before state legislators changed the law. She also said prosecutors never tried to file a CHINS case in her court — even when they had the power to.

But several prosecutors and public defenders said the situation has gotten worse in recent years and warrants legislative action.

Larry Landis, executive director of the Indiana Public Defender Council, said his organization has asked state lawmakers to restore prosecutors' ability to file CHINS cases.

David Powell, executive director of the Indiana Prosecuting Attorneys Council, said his organization has not taken a formal stance on the issue but likely will join legislative summer study commissions about it.

Earlier this year, the state Legislature approved the creation of a two-year study commission on under-served youth with mental health issues and another committee on DCS-related issues.

Wayne County public defender Lueck suggested legislation to give juvenile courts access to Division of Mental Health services for children who are severely mentally ill and incompetent to stand trial. Currently, a judge cannot order a mental health commitment for a child, she said.

Several officials also suggested giving judges the ability to hear motions from prosecutors, public defenders, probation officers or parents to convert a juvenile delinquency case into a CHINS case.

"Those children will one day become adults and — if beaten down in the (juvenile delinquency) system that was unable to handle their mental issues — will often become adult criminals that will be warehoused without much aid to deal with their mental health," Morgan Circuit Court Judge Hanson wrote in his opinion.

DCS Director Payne said the legislative study committees will be the best way to tackle problems with the system.

"This will not be a simple solution, and it will not be a short fix," he said. "It will take time with lots of input, consideration and contemplative analysis."

*Editor's note: This story has been corrected from an earlier version. The Times incorrectly spelled Michele Degenais' name in an earlier version.

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