A few years ago, Jessica Marcus, a Brooklyn-based family law attorney, took on a client who was mildly mentally retarded and fighting charges that she abused and neglected her three sons. Because the woman was also depressed, her doctor gave her an anti-depressant. Initially, this pleased her case worker at the city's Administration for Children's Services, but as time passed, the case worker became frustrated with what he perceived as the mother's lack of progress. Because the caseworker didn't understand the difference between mental illness and mental retardation, he assumed that the anti-depressant would cure her of both.

It's a common misconception, within New York City's child welfare system, says Lauren Shapiro, the executive director of Brooklyn Family Defense Project, where Marcus works. "There's a total lack of understanding of the difference between the two," Shapiro says. "They're really not equipped to deal with mental health issues."

Parents who actually do have mental illness sometimes get mishandled too, Shapiro says, by a system that assumes it's impossible for them to be fit parents simply because they have a diagnosis. "We see insensitivity toward our clients, laughing at behaviors that are a result of mental health issues," Shapiro says. "What we see is that parent's conditions also really deteriorate when they come into the ACS system."

Shapiro's perception is one that is shared by several child welfare advocates and echoed by a winter 2009 Child Welfare Watch report that documented systemic problems with the child welfare system's management of mental health issues. The report found that mental health evaluations "are requested far more often than necessary, even in cases in which there is no mental health allegation."

Often the evaluations were based on a single period of observation of a parent without the children present, the report says. Because there is no standard for conducting mental health evaluations in New York City, repeated evaluations of the same person routinely yield contradictory diagnoses, the report says.

"Some players in the child welfare system confuse parents’ reactions to the trauma of having children removed with genuine mental illness," the report said."Others are unaware of how to fairly determine whether a parent with mental illness can care for her children."

A spokesperson for Family Court Mental Health Services (FCMHS), a city agency that conducts some of the mental health evaluations, says the report significantly mischaracterizes their work. Evelyn Hernandez, the spokesperson, says FCMHS does not over-diagnose people or overly rely on the diagnosis of other clinicians during its evaluations. "We make diagnoses based on independent analysis of diverse data that we obtain from our direct and intensive examination of clients as well as from collateral sources," she wrote in an e-mail.

Moreover, FCMHS evaluations are suitable for the court's purpose, she says. "They never have been intended as absolutely final, all-encompassing assessments –they are limited to addressing specific legal issues, at specific points in court proceedings, and to act as guides, not mandates, to the Court in determining next steps in the legal process, including the ordering of additional psychosocial assessments and treatments by other providers."

Since the publication of the Child Welfare Watch report, there have been signs of progress within FCMHS (which Hernandez says weren't inspired by the report) and within ACS. FCMHS now offers evaluations earlier in the child welfare case, allowing some parents to use it to demonstrate fitness, Hernandez says. Evaluations now incorporate more sources of information, including contact with treatment providers and relatives and parent-child observations, she says.

And in January 2010, ACS workers began taking a training class with the National Alliance of the Mentally Ill (NAMI) and have embraced the curriculum. "What we're hearing is that it really turns their heads about their attitudes about mental illness," says Mary Lee Gupta, program director with NAMI. "It also helps them understand mental illness in adults, about mental illness being biologically based, that it is not the fault of the parents."

But some problems persist and in response, a coalition of family law attorneys, social workers and advocates is developing a plan to address them. The mental health sub-committee of the Adoptions and Safe Families (AFSA) Task Force – a coalition that addresses issues of mutual concern regarding New York City’s child welfare system – started working on its plan in February and this month delivered a letter to ACS Commissioner John Mattingly asking him to collaborate with them to develop guidelines and best practices.

"Some of our concerns include parents being treated in a
manner which appears punitive and does not lead to appropriate assessments and treatment options, workers’ lack of understanding about mental illness, and families being treated unfairly and needlessly separated as a result of a mental health condition," the letter read in part. (The day before the letter was sent, Mattingly announced that he will be stepping down from his post in September. Mayor Bloomberg has tapped Family Court Judge Ronald E. Richter to take over ACS.)

In 2010, Family Court mental health services received 626 referrals for parents charged with abuse of neglect, according to data City Limits received from the New York Unified Court system.

Attorneys estimate that as many as one fifth of the parents who come into contact with the child welfare system have a diagnosis of mental illness, according to Child Welfare Watch. At minimum, the coalition wants the guidelines to state that having a mental illness doesn't ipso facto turn a parent abusive or neglectful.

"We know that for parents who have mental illness, if they have the appropriate supports and services – in other words treatment and education – those parents are likely to be able to parents as well as any other parents," Gupta says.

"If someone has a mental illness, the way that you can help the children is by doing a safety plan that says 'Who's gonna take the children? Where and when? What are the triggers?' And the parents themselves can have safety plans so they know when they need help," Shapiro says. The coalition also wants the guidelines to set some standards that help determine when parents and children should be subjected to mental health evaluations.

The mental health subcommittee was inspired to begin developing guidelines after ASFA succeeded in getting ACS to adopt guidelines governing visits between children in foster care and their parents, Shapiro says. The process and outcome of the visiting guidelines initiative provided a good model for collaborating with ACS.

Once the guidelines have been developed, members of the coalition hope to begin using them as the basis of trainings and further advocacy work.

"The issue is that parents with mental illness need very particular accommodations and they're not trained so they don't know how to deal with it," Shapiro says.