[Congressional Record Volume 141, Number 4 (Monday, January 9, 1995)]
[Extensions of Remarks]
[Pages E64-E65]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                ADDRESSING THE TRANSFER OF CUSTODY ISSUE

                                 ______


                        HON. FORTNEY PETE STARK

                             of california

                    in the house of representatives

                         Monday, January 9, 1995

  Mr. STARK. Mr. Speaker, Today I am joined by Congresswoman Constance 
Morella, Congressmen Robert Matsui and William Coyne in introducing 
legislation that ensures that parents of emotionally disturbed and 
physically disabled children are not required to transfer custody of 
their children for the sole purpose of obtaining public services.
  At this moment, in many States, parents are confronted with a 
Hobson's choice of either surrendering their children into the custody 
of the State in order to receive necessary residential services, or 
retaining custody and, therefore, denying their children the services 
they need.
  These are not parents who have abused, neglected, or abandoned their 
children in any way, Mr. Speaker. They are simply parents who cannot 
afford to pay the full cost of the out-of-home treatment their child 
requires and have as a result, have sought the help of the State.
  There are many reasons why these parents are currently required to 
give up custody of their children, but key among them is the simple 
fact that--because our country has no system designed specifically for 
these children--parents are forced to rely on agencies that were not 
designed with their needs or situations in mind. Because many of these 
agencies were designed to serve children being placed because of abuse 
or neglect, their custody transfer requirements are not appropriate to 
families with children who have serious emotional or physical 
disabilities. Also key among the reasons, Mr. Speaker, is simple 
misunderstanding of the requirements of current Federal law.
  We believe that parents of these children should be able to keep 
custody of their children, continue their involvement in decisionmaking 
on their behalf, and work cooperatively with State authorities to 
secure needed services.
  The bill we are introducing today is designed to address--to the 
extent possible under Federal law--the multiple causes of the practice 
of requiring parents to relinquish custody of their children. These 
include: misinterpretation or misapplication of title IV-E 
requirements; the application of custody transfer 
[[Page E65]] requirements designed for abuse and neglect cases to 
children with emotional or physical disabilities--either because these 
requirements are an agency's standard operating procedure, or because 
of assumptions about the desired role of the family in treatment; and 
the lack of voluntary placement procedures in some States (which means 
that custody must be transferred to draw down title IV-E funds, or to 
place children out-of-home under other available funding streams, 
including Medicaid).
  In general, our bill would amend the six major Federal programs that 
may currently be used to provide out-of-home services to emotionally 
disturbed and physically disabled children.
  The amendment would require States to provide that parents not be 
required to transfer custody in order to have their child placed out-
of-home, and that all such children be placed pursuant to a voluntary 
placement agreement.
  In addition, the bill would clarify existing Federal law regarding 
custody transfer requirements under title IV-E.
  As drafted, the bill would: ensure that custody transfer requirements 
are not imposed on children with emotional or physical disabilities; 
clarify that title IV-E does not require States to have legal custody 
over children in their physical custody, or to have legal custody in 
order to draw down Federal IV-E payments; prohibit States from 
requiring parents to transfer custody to access out-of-home Medicaid-
EPSDT treatment services; and ensure that States have in place the 
necessary procedures to place these children without transferring 
custody.
  Mr. Speaker, we believe that a full resolution of the custody 
transfer dilemma--and indeed the larger issue of adequate access to 
needed services for emotionally disturbed and physically disabled 
children--will ultimately depend on the development of a designated 
system of care for these children.
  This legislation, however, will provide a significant firs step 
towards ensuring that these children are able to get needed services 
without unnecessarily disrupting families, and that no child is denied 
access to funding solely on the basis of their custody status.
  We are very excited about the possibility of enacting this piece of 
legislation. It will help thousands of families and will correct a 
practice that everyone agrees makes no sense--for children, for parents 
or for our governments. In the seven States that have enacted a similar 
State bill, the bill has passed with broad bipartisan support.
  It is our expectation that introducing the bill today will give 
interested people the opportunity to fully examine the bill before the 
104th Congress begins. Though the concept of preventing the transfer of 
custody of children is a simple one, the legislative solution is more 
complicated. A draft copy of the bill has been well received by child 
welfare, mental health, and parent advocacy groups, as well as 
researchers who have studied this issue.
  We plan to reintroduce the bill January and look forward to its 
passage by the next Congress.

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