chevron-down Created with Sketch Beta.
October 07, 2013 Articles

Combating Rise of Heroin Abuse in Child-Welfare System

By Debra Rothstein, Sarah A. Smith, and Adolfo Olivas

Heroin addiction is a grim reality in Ohio, as in other states. It is an especially addictive drug. Recovery is particularly difficult, if not impossible, without adequate resources and supports in place that are readily accessible. In Butler County, Ohio, attorneys/guardians ad litem appointed in a dual capacity to represent children in juvenile court in abuse, neglect, and dependency cases have seen an alarming increase in the number of child clients born addicted and in the number of parents succumbing to the drug's pull.

The statistics:

  • The National Center on Addiction and Substance Abuse at Columbia University states that children whose parents abuse alcohol and other drugs are four times more likely to be neglected and three times likelier to be sexually or physically assaulted.

  • The number of children who are removed from their homes in Butler County because of heroin abuse has doubled since 2010. In 2010, 25 percent of the children removed from their home were removed because of parental substance abuse, specifically involved heroin. In 2012 that figure jumped to 52 percent. Overall, since 2010, Butler County Children Services has experienced a 30 percent increase in the number of families receiving services due to any kind of substance abuse.

The director who oversees Butler County Children Services said the threat to children due to heroin abuse is significant. By law, children's services agencies have two years to reunite children with their families or place them for adoption— drug treatment is part of the process for reunification. Parents are subject to random screenings to make sure they are staying clean. "Their parents just can't get clean in the time frame that's required, and there's nobody able to care for them," said Hamilton County's Job and Family Services director. More children are being permanently committed to the child-welfare system because the drug is so addictive. Sheila McLaughlin, "Special Report: Children of the Heroin Curse,", Mar. 25, 2013.

Heroin overdoses are also on the rise in Hamilton (Ohio, Butler County). In one two-week period, emergency crews responded to 18 drug overdoses, including five in one day. The percentage of overdose runs for the department has more than tripled since last June, according to the emergency medical services coordinator. More than 90 percent of the runs involve heroin. It's a problem of epidemic proportions. Heroin has made a comeback as the drug of choice for addicts after federal and state authorities cracked down on the prevalence of prescription painkillers such as OxyContin. Hamilton officials say it's everywhere. Jessica Brown,"Heroin Overdoses on the Rise in Hamilton," Enquirer (Cincinnati), July 4, 2013, at C2.

Case Example
A 12-year-old boy, Jon, calls Children Services to report that the electricity is off in his home. When the social workers respond, they are shown a water disconnect notice. The home was in the process of being condemned by the health department for several years of violations. During the visit, Jon and his siblings, ages five and six, tell the workers about the drugs the parents take in front of them. One of the siblings takes the worker to the room where the parents keep the syringes and heroin in plain sight and in easy reach of the children. The mother says she stopped taking heroin two weeks ago.

An abuse, neglect, and dependency complaint is filed by the state in juvenile court. The children are placed in a foster-to-adopt home, crying for their parents. Jon tells his attorney/guardian ad litem that he only wants help for his parents. He does not want to lose them.

It is now two years since the case was filed. A motion for permanent custody (termination of parental rights) is filed and the trial scheduled. The children have been in the same foster care home since their placement two years ago.

Three weeks before the permanent custody hearing, the parents finally complete an outpatient drug rehabilitation program. Prior to that, while waiting for the inpatient treatment program that the case plan calls for, they had some setbacks. They shoplifted items from a store to pawn and buy drugs, and spent some days in jail. The parents were in jail when the promised residential programs were ready for them. The position of Children Services is that the parents' efforts to meet the case plan mandates are too little and much too late. The parents' attorneys question the effectiveness of the services offered because the case plan called for drug assessments and treatment, but it took Children Services two months to provide assessments, and then four additional months to provide available treatment beds. Children Services claims budgetary constraints limit its ability to contract with more assessment and treatment agencies in order to provide more timely services. Children Services faults the parents for being in jail when the beds were ready.

During the course of the case, the children's original attorney/guardian ad litem acknowledges a conflict between the children's positions. Jon, now 14, remembering his life with his parents before their addiction, wants his real family fixed and to return home. The younger siblings, now 6 and 7, do not have the same attachment to their family and want to be adopted by their foster parents who want to adopt all three children. This conflict requires the separation of the attorney and guardian ad litem roles.

 Jon's attorney will argue to dismiss the permanent custody case as to his client and, based on the extreme time required for the parents' assessment and treatment, will urge giving the parents more time to continue their rehabilitation. The younger children are very happy with the nurturing the foster parents have provided every day since their placement. The foster family is willing to adopt. The attorney/guardian ad litem for these two children will recommend permanent custody and freeing the children for adoption. The likelihood is that the court will decide to terminate parental rights to all three children. An appeal will likely be filed, and the children will continue in foster care for another year without a final answer to the then-12-year-old Jon's original question: Can you help my family?

Attorneys/Guardian Ad Litems Respond
Recommending termination of parental rights is a serious and profound responsibility for an attorney/guardian ad litem. Practitioners hope for, and work toward, reconciliation as the outcome if at all possible, if that is what the client wants, if that is what is in the child's best interests. However, as a consequence of heroin addiction in parents who are involved with Children Services and juvenile court, and due to the lack of assessment and treatment programs to address addiction, attorneys/guardians ad litem for children in this community are frequently recommending permanent custody (termination of parental rights) and adoption.

One practitioner recently reported filing three reports and recommendations in favor of terminating parental rights in a period of three consecutive months. The practice of writing reports and recommendations in such numbers in a single county is disturbing, not because the arguments for permanent custody when heroin use is prevalent are legally difficult, but because they are too easy. Practitioners recognize the financial expense associated with providing drug recovery and prevention services for addicts who are likely to need such services more than once to become clean. At the same time, the community cannot keep losing families to this epidemic. The recommendations for permanent custody now seem inevitable, despite case planning for other outcomes.

The Family Drug Court
There have been helpful resources in the recent past that, even though they are no longer funded, might be able to provide insight into working with addicted parents that can be incorporated into new ways of approaching cases. One such resource, the Family Drug Court, was built on the premise of holding parents immediately accountable for drug abuse and providing them access to a consistent and readily available support system to promote staying clean.

In 2006, Butler County Children Services was awarded a multiyear grant to establish a specialized court docket. This docket was designed to address the needs of families whose ability to care for their children was impaired by substance abuse. The sheer number of parents abusing drugs depleted available resources to assist these families with timely and successful reunifications. The court wanted to see families reunited, not torn apart.

The Family Drug Court was created as a specialized, multidisciplinary court docket to address these concerns. The approach was to provide heightened support and accountability to parents  combating addiction while increasing responsible parenting and ultimately protecting children from maltreatment.

A dedicated magistrate was appointed to oversee the judicial aspect of cases and to provide immediate intervention for support or redirection when needed. Children Services initially provided one dedicated and specially trained social worker to handle the case plan services, coordinate referrals, and monitor progress. A second worker was added later to accommodate the docket to two half days. An assistant prosecutor was present to represent Children Services, and a private attorney was present to represent the parent/drug court participant. An attorney/guardian ad litem was assigned to protect and advocate for the children's best interests. In addition, designated substance abuse treatment providers, psychologists, and case managers attended and provided services to participating parents.

The specialized court was designated to provide accelerated support and services not available in the traditional court forum. Assessments for potential Family Drug Court clients were conducted within a few days to a week of the referral. The assessment was done wherever and whenever it needed to be conducted, which included jail, the offices of Children Services, and participants' homes.

There were a specific number of treatment beds contracted by Children Services as part of the grant. For example, a residential facility may have contracted to provide one bed for a man and three beds for women. Those beds could be used only for Family Drug Court participants. There were specific numbers contracted in multiple treatment facilities and for different levels of care. There was no wait for intensive outpatient spots, and participants never had to wait very long for a residential treatment spot. If a delay did occur, arrangements were made for clinicians to provide individual sessions, even going to the jail to provide treatment, until the residential program was available. Most often, beds were available to a participant the same day the participant entered the Family Drug Court program.

Family Drug Court participants experienced more frequent and random drug screens than those involved in juvenile court. Screenings were also ordered to include more substances than standard tests. Family Drug Court team members met weekly and were able to share information across programs, allowing for a quick response regarding each case. Participants' weekly meetings with the Family Drug Court team allowed for accountability as to the services delivered and accepted and as to individual treatment plans completed.

To be eligible for the Family Drug Court, the applicants had to be

1. an adult resident of Butler County

2. nonviolent

3. identified as being drug or alcohol dependent and, because of this dependency, unable to parent a child effectively or adequately

4. a parent or guardian of a child or children for whom Children Services has filed a complaint of dependency, neglect, or abuse, and the parties agreed to stipulate at least to dependency

5. a parent or guardian of a child or children determined to be at risk of placement outside the home or placed outside the home due to alcohol or drug issues

6. a parent who has given birth to a baby who has tested positive for drugs or a parent who, herself, has tested positive for drugs when the child was born

7. a parent who is not in compliance with his or her case plan when alcohol and/or drug treatment is part of the case plan

8. able to fully participate in weekly court hearings and recommended treatment sessions

9. not currently taking prescribed prohibited drugs or medications (Note: Some treatment programs do not permit clients to be in residential treatment if they are prescribed benzodiazepines.)

Participants worked through a series of phases as they transitioned or progressed through the program. These phases allowed the parents to process and understand addiction and the impact on themselves and their children, and to learn prevention skills. As the parents progressed, less accountability and monitoring were necessary. The three possible outcomes were as follows:

1. Parents who completed the entire program were successfully transitioned out of the program and reunited with their children.

2. Parents who did not complete the program for reasons outside their control were given a neutral discharge. In these cases, the Family Drug Court did not make a recommendation in the abuse, neglect, or dependency case as to whether reunification should or should not occur. The case proceeded.

3. Those who failed to complete the program, either because of repeated relapses or failure to abide by court orders, were discharged from the program. Their unsuccessful completion was noted in the abuse, neglect, or dependency case.

One example of a parent's success, Mary's story, is indicative of the Family Drug Court's effectiveness in keeping families together. Mary entered the abuse, neglect, and dependency court system after the birth of her second child. She used a variety of illegal substances throughout her pregnancy, and as a result, her baby was born positive for drugs and suffered withdrawal symptoms. Both this baby and Mary's oldest child were removed from her care and placed in foster care. Eventually, appropriate relatives were located to care for the children, but they were unable to remain in the same home. Mary was provided the traditional case plan services in abuse, neglect, and dependency cases. She was required to complete substance abuse treatment and counseling services. Her case was monitored in court about every three months. Mary struggled with completing these services, and ultimately her two children were placed in the legal custody of relatives.

However, around the same time that her case was winding down for her older two children, Mary became pregnant with a third child. Because Children Services was still involved with her case, they made a referral for Mary to participate in the Family Drug Court. Mary was suddenly subject to an entirely new approach to her case. She was required to come to court weekly, she had immediate access to residential treatment, and she had an entire team of people who held her accountable for her actions and provided support in her efforts to achieve and maintain sobriety. As a result of Mary's participation in the program, her third child was born drug free. Moreover, this child was never removed from Mary's care, which allowed for appropriate and necessary bonding and attachment to form between Mary and the child. And even more important, Mary was finally able to be successful in treatment and maintain her sobriety. Mary's case for her third child was closed with her child in her care and custody.

Mary is a perfect example of how the traditional abuse, neglect, and dependency court approach to the family crisis involving the first two children failed to address and treat the substance abuse problem adequately. The Family Drug Court provided Mary a real opportunity for family reunification.

During the years the Family Drug Court operated, budget cuts negatively affected operations. Notably, funding for court-appointed parents' attorneys to attend the docket ended. In May 2009, the availability and frequency of screening was severely curtailed. Funding for the Family Drug Court ended January 2013, and court activities ceased.

The parents who successfully completed the Family Drug Court program were reunited with their children. These successful reunifications will be remembered, as will the collaboration among attorneys, service providers, and families that led to this success.

Jon's parents in the above case example would also have been eligible for the Family Drug Court, if the court had existed when their children were taken into care. With assessment and treatment available in a timely manner and with weekly court hearings to monitor, support, and hold the parents accountable for their progress, they would have had a chance to complete the case plan successfully, and the children would have had their family restored. The family would have had a chance to succeed. Mary's story is an example of how a specialized approach to these cases is paramount for family preservation.

Practitioners Collaborate for Family Preservation
As difficult as it is to accept the end of a valuable resource, such as the Family Drug Court, especially during a time of increasing heroin dependence affecting families, current economic realities call for rallying practitioners around other solutions.

To that end, a number of Butler County attorneys/guardians ad litem, parents' attorneys, and court-appointed special advocates have met to explore the development of a collaborative effort in juvenile court abuse, neglect and dependency cases to preserve families separated by parental addiction. The premise is that if we can work together on behalf of our clients' mutual goals for reunification at the beginning of cases, maybe we can improve the outcome. Of course, there must be mutual goals and, of course, clients must agree to this approach.

Preliminary conversations have included the following considerations:

1. This should start as a pilot project. The collaborative practice model used in domestic relations cases should be reviewed for foundation protocols.

2. Choosing cases for a collaborative approach should be based on criteria perhaps similar to those established and successfully used by the Family Drug Court. There should also be discussion as to whether to include other criteria such as the child's age and placement.

3. Practitioners should be more extensively trained about heroin and other drugs, and about screening protocols and the types and meanings of test reports. The existence and location of drug-specific assessment and treatment resources should be researched.

4. Parents' attorneys and attorneys/guardians ad litem should meet with parents weekly, to review, explain, and prioritize case plan requirements, to monitor their progress, and to hold them accountable. When necessary, case plans should be amended, for example, to include more appropriate or timely services. Parents' attorneys and attorneys/guardians ad litem will proceed together in these efforts.

5. On behalf of children's interests in reunification, attorneys/guardians ad litem will support parents' requests for quality and timely services related to overcoming their addiction.

Practitioners for parents and children have to learn how to better handle cases that involve heroin. It is natural to form a responsive collaborative effort. We have to work together unless and until our interests diverge. We want to prevent heroin from claiming any more of our families. We have to learn what treatment will work for heroin addiction and how to predict the likelihood that the addicted parents will stay clean. We have to learn from others' success in working with similar high-risk populations.

Learning from Success
In 2010, Ohio spent more annually to incarcerate an inmate than an average family spent to send a child to college: a total of more than $1.32 billion. In the past, most of that spending simply did not work, and the majority of offenders came out of prison only to commit more crimes.

In 2005 the state commissioned the Criminal Justice Research Center to create a system that applied science and evidence to criminal-justice decisions. With that single step, Ohio got smarter on crime.

In studying recidivism, the University of Cincinnati's Center for Criminal Justice Research developed the Ohio Risk Assessment System, a tool that helps determine which offenders are likely to commit more crimes and which are not, and helps determine which programs and services are the most effective at deterring future crime. Judges now have a more reliable way to decide who can safely be released on bail, prison officials have a way to decide who needs the highest security, and halfway houses and other agencies have a way to know who will do best and who will not do well in their own communities.

The research involved information on 2000 offenders. Numbers were crunched and patterns analyzed to see what factors made some people stay law-abiding and others return to jail. The conditions that predicted non-reoffending behavior included whether low-level offenders were engaged with their families and whether they had stable jobs. Providing a saturation of treatment to some high-risk offenders could set them straight. This treatment was paid in part by money saved from incarcerating fewer low-risk offenders.

Today Ohio's recidivism rate is at 29 percent—an all-time low—and incarceration numbers are decreasing. [Krista Ramsey, "UC Center Helps Ohio Get Smarter on Crime,", July26, 2013.

Such research and risk-assessment tools would be as much of a milestone in improving the child-welfare approach to parent addicts as it is in the criminal-justice approach to offenders. It is clear that foster care for children is far more expensive in financial, psychological, and social costs than developing appropriate assessment and treatment access for parent addicts.

The Path Ahead
The constitutional right to family integrity cannot be thwarted by budget constraints. Tolerating delayed assessments and treatment for heroin-addicted parents when children are in foster care is tantamount to assisting in case planning for terminating parental rights. The establishment of a collaborative effort among legal advocates for children and parents  is a different, more constructive approach to cases. We are all accountable. And we will keep you posted.

Keywords: litigation, children's rights, abuse, neglect, dependency, drug treatment, addiction, foster care, family reunification, adoption, Drug Family Court

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

Debra Rothstein, Sarah A. Smith, and Adolfo Olivas – October 7, 2013