In 2019, the number of children removed from their parents and placed in foster care pursuant to a court order in the United States was 251,359.¹ Of that number, 86,694 were removed with incidence of parental drug abuse as an identifiable condition at the time of removal, and 13,637 were removed with parental alcohol abuse as an identifiable condition at the time of removal.² Research has shown that of all children placed outside their homes, children removed from parents and placed in the child welfare system due to parental substance abuse stay in out-of-home care for the longest period of time and have the lowest chance of reunification.³

In Wisconsin in 2019, there were 13,108 children removed from their parents pursuant to a court order.⁴ Of that number, 7,091 were removed with incidence of parental alcohol or drug abuse as an identifiable condition at the time of removal.⁵ These numbers are alarming and indicate that family units in Wisconsin and the United States are being broken apart by drug and alcohol abuse.

Over the past two decades, the criminal treatment court model has demonstrated its value to the nationwide judicial process and specifically to the Wisconsin court system. Many Wisconsin criminal offenders have been through the treatment court process and have quit using drugs and alcohol as a result. Many of those people have found full-time work, suitable housing, and rewarding family lives. One model that has gained less traction in Wisconsin but has the potential to provide similar benefit to children and families throughout our state is the family drug treatment court. This article discusses the principles and structure surrounding family drug treatment courts, and it outlines some of the successes of and obstacles to implementing such a court in one Wisconsin county.

Treatment Court for Families – A Successful Model Arrives in Wisconsin

The criminal drug treatment court model has existed for many years.⁶ The theory behind these courts, also known as specialty courts, is that society is better served by offering intensive monitoring and community treatment from a court than by incarcerating some drug and alcohol offenders. Society benefits because addicts can be assisted into recovery. Pressure on overcrowded jails and prisons is alleviated because individuals are assisted in the community and not incarcerated. Individuals can be productive community members rather than unproductive jail or prison residents.

Family drug treatment courts are distinct from criminal drug treatment courts in many ways, but the most significant difference is the pool from which family drug treatment courts draw their participants. While criminal courts draw their participants from the criminal justice system, family treatment courts draw their participants from “children’s dependency courts.” That is, families who are the subject of an order under a given state’s dependency statutes (for example, Wis. Stat. chapter 48) and have children placed outside their homes due to substance abuse issues are eligible to apply.

Similar to criminal treatment courts, family treatment courts take a multidisciplinary approach to participants. Parents come each week to the family treatment court to meet with a team, and a judge leads the conversation. They discuss the parent’s activities and any changes that must be made in the next week to promote continued progress.

Team Composition. Although both models use a multidisciplinary team to work with participants, the members of those teams are different, given the different populations being served. A significant participant in all drug treatment courts, including family drug treatment courts, is the judge. Finding a willing judge can be difficult, but once a judge agrees to participate, it becomes easier to set up the court.

Best practices suggest the following as other potential members of family drug treatment court teams: family drug treatment court coordinator, prosecutor or state’s attorney, parent’s attorney, guardian ad litem, court-appointed special advocate, child welfare caseworker, substance abuse treatment provider, mental health treatment provider, child and adolescent services provider, and other related agencies (such as health, educational, vocational, reunification support, law enforcement, and probation).⁷

The team composition of the family treatment court can be significantly different than the criminal treatment court team given some of the issues the family treatment court addresses, but the mission is very similar: to assist the participants in becoming sober and provide skills that will allow them to maintain sobriety and lead healthy lives. In the criminal treatment court, success typically includes leading a drug-free and crime-free life. In the family treatment court, success means the participant’s child is returned to the parent’s care (as opposed to having the participant’s parental rights being terminated) and the participant is a clean and sober parent to the child.

Research on Family Drug Treatment Courts. Early research on family drug treatment courts has been positive. Preliminary evidence suggests that these courts increase the level of engagement families have with their case managers and the court system.⁸ Further, it demonstrates that families who engage in this treatment court process and graduate have a higher level of satisfaction with the court process than those who did not.⁹ Finally, the research demonstrates that when early and active client engagement is used in the family treatment court model, “child welfare families have better outcomes, children have significant positive mental health results, and children have shorter and fewer placements into out-of-home care.”¹⁰

The family treatment court model was first implemented in Wisconsin in 2011, in Milwaukee County. The program was facilitated by a grant from the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention.¹¹ Milwaukee court data on child welfare outcomes indicate that “participants in the FDTC have a higher rate of family reunification than non-participants” (41% compared to 28%).¹²

Family drug treatment courts have since been started in a few other Wisconsin counties: Jackson and Bayfield counties (2013), Walworth County (2018), and Dunn County (2019). Brown County started a family drug treatment court program in 2020, just as the pandemic started. There is no definitive data available yet as to the results of these Wisconsin-oriented family drug treatment courts, but the national data suggest that the families in these counties probably are benefiting.

Implementation: Brown County Family Recovery Court

As with any initiative, starting a family treatment court program might seem too daunting and sometimes as though the program is not worth doing. In Brown County, support from stakeholders and financial support were key. Generally, however, people seeking better outcomes for the dollars they spend are willing to at least listen.

Conversation about the formation of a specialty court dedicated to Wis. Stat. chapter 48 families started in meetings of Brown County’s Criminal Justice Coordinating Board. Around 2015, Brown County added two additional criminal treatment courts with the help of a Treatment Alternatives and Diversion (TAD) grant. Creation of a family treatment court was a part of those discussions but was not part of the 2015 initiative. Further discussions ensued. Eventually, staff of the Brown County Department of Health and Human Services (BCDHHS) showed interest in trying a different approach to potentially gain better outcomes. Leaders of the BCDHHS, which deals with child protection cases under Wis. Stat. chapter 48, had also attended or studied presentations by representatives from other Wisconsin counties that had implemented this type of a court. Spreading the word and offering input from those already engaged was invaluable to the initiative.

Once there was buy-in from the BCDHHS and a willing judge, the project moved quickly. A team was assembled involving a judge, a BCDHHS case manager, and two BCDHHS supervisors. In addition, the team included a Brown County assistant corporation counsel, a public defender filling the roll of a parent’s attorney, a mental health professional, an assistant district attorney, a probation agent, a representative of Brown County Criminal Justice Services, and a representative of law enforcement.

Although modeled on a family drug treatment court, the team determined that the program should be called “Family Recovery Court.” The name seemed more conducive to helping the entire family recover rather than appearing to focus solely on a parent with a substance use disorder.

The application process for the Brown County Family Recovery Court is similar to that for the criminal treatment court. A prior violent offense record is generally a disqualification. Although defendants in a criminal case have other options for services (for example, being sentenced to probation, jail, or prison), family treatment court participants do not have many options. Their children have been removed, their cases have reached disposition, and they need to complete certain court-ordered conditions to have their children returned. Their choice comes down to whether they would like to work with the local agencies in a conventional manner or would like to participate in a treatment court with a higher level of supervision and higher level of service.

After one year, Brown County’s treatment court team applied for a federal grant, and the grant was awarded six months later. (The team’s principle participants were prepared to move forward even without a grant.)

Structural Shortcomings in Family Drug Treatment Court Model

In any treatment court setting, a balance must be struck between holding participants accountable for their negative actions and understanding participants’ path to arrive in the justice system, including any trauma they may be carrying with them. Tipping the scale too far in either direction could harm a participant, either by retraumatizing them with overly harsh treatment or by letting them fall further into a destructive lifestyle by not calling them to account when there are transgressions.

The problems that can result when balance is not reached became apparent to the Brown County team within a few weeks of starting. Problems can arise immediately when a participant enters the program and is advised of the expectations the team has for them. Many, but not all, of the participants come into the program indicating they choose to enter the program “so I can be held accountable. I need to be held accountable.”

Lack of Consequences Reduces Participants’ Motivation. One of the expectations, for example, is participation in random drug testing every week. This involves calling the testing line by a given time each morning and reporting for a urinalysis if required to do so. Often the participants would not call, would not show up or, if they did call and show up, they would test positive for illegal drugs.

These are not unusual events in a criminal drug treatment court, in which failures to comply generally are met with negative consequences. Sanctions could include a stern warning for participants who recently entered the program, writing an essay, community service or, ultimately, a brief time in jail if the violations continue. The threat of jail time is available to a criminal drug treatment court because participants are on probation supervision and the treatment court has imposed and stayed time that the court can use for this purpose. No such structure exists in a conventional family drug treatment court. Furthermore, using jail sentences as a sanction in the family drug treatment court model is somewhat controversial.¹³

A stern warning is likely to have little to no effect on persons struggling with addiction whose children have been removed from their care. Although many people believe that a participant’s concern about having parental rights terminated is enough leverage for a treatment court team, it proved not to be so in Brown County. Many participants came week after week and promised to call the test line the next week or go to testing if they learned it was their day, only to not do so and return in later weeks with further apologies and promises. The team had no effective tools to suggest to participants that there was a price to pay for not keeping such promises. Imposing a sanction such as extra community service hours also tended to not be effective; the participants would not have time to do the extra community service given the other expectations under the child in need of protection or services (CHIPS) order or they would choose to not do it.

Team Disagreements Affect Program Operation. There were divisions within the treatment court team, at least in part because of members’ varied backgrounds. For example, the inability to impose a jail sanction, or any other meaningful sanction, on participants not under probation orders caused conflict within the team. The dispute became one of how long someone should be allowed to remain in the family recovery court if the person would not comply with relatively simple things such as taking a drug test. Team members also disagreed whether jail time was an appropriate sanction for family recovery court, even for those participants who had been sentenced to the court with jail time.

Team members with criminal justice backgrounds had a difficult time with this issue because they are not accustomed to working long term with individuals who do not comply. Those individuals are quickly moved through the system and ultimately can end up in prison. Team members who did not come from a criminal justice background were more willing to let many weeks pass in which participants did not comply. This disagreement over sanctions and accountability caused the Brown County team to step back and reassess its structure.

The initial model had contemplated allowing criminal defendants with open CHIPS cases to be sentenced to probation that included family recovery court participation as a condition of probation, with jail time available as a later sanction; however, the family recovery court team determined to back away from that model and stop allowing parents to be sentenced into the program. The representative of the district attorney and the probation agent left the team. The parting of the ways was amicable and probably made some sense as the program tried to find its footing. The family recovery court continued to accept and work with participants who were not facing criminal charges.

As time passed, however, it became increasingly obvious that the county’s criminal drug treatment courts were accepting many clients with open CHIPS cases and that those individuals could be well served in the family recovery court. The prosecutors, however, were offering better plea arrangements to defendants who agreed to be sentenced in a criminal treatment court than those who were going to participate in the family recovery court that did not use jail as a sanction. Further, while some parents chose to enter the family recovery court even if they had criminal cases pending, returning children to the care of a parent who has a criminal case pending confronted the team with situations in which the parent might end up going to jail after the child was returned. As a result, whether to accept probationers was again discussed.

After a year-and-a-half absence, the district attorney’s office and the probation department rejoined the team under more formalized rules. This process is just underway, but all team members are pleased with the reunified group. Benefits to the scheme are also readily apparent to participants.

There will be two different populations in the program: people sentenced into the program on probation and people participating without criminal repercussions. This disparity need not doom the program: People are always in different situations in society. Families who become eligible for family recovery court via Wis. Stat. chapter 48 also see differences case to case; some have health insurance, some are covered by the Indian Child Welfare Act, and some have a parent on probation. All families, however, should have the opportunity to access the help despite their specific circumstances.

Conclusion

The family drug treatment court model has much to offer parents in the throes of addiction. It also has much to offer children, the community, the justice system, and family structures generally. Children are being removed from parents with substance use disorders at an alarming rate. If success for these families and the communities in which they live is defined as reunification in a clean and sober lifestyle, then applying a treatment court model to the issue makes sense.

Endnotes

1 U.S. Dep’t of Health & Hum. Servs., Admin. for Children & Fams., Admin. on Children, Youth & Fams., Children’s Bureau, The AFCARS Report, www.acf.hhs.gov/sites/default/files/documents/cb/afcarsreport27.pdf.

2 Id.

3 Ashley R. Logsdon, Becky F. Antle, Rebecca S. Katz, Anita P. Barbee, Cindy Kamer & Amy Spriggs, The Impact of Engagement on Child Welfare Families Involved with Family Treatment Drug Courts, 72 Juvenile & Fam. Ct. J. 43, 44 (2021).

4 Nat’l Ctr. on Substance Abuse & Child Welfare, Parental Alcohol or Other Drug Abuse as an Identified Condition or Removal by State, 2019, https://ncsacw.samhsa.gov/research/child-welfare-and-treatment-statistics.aspx.

5 Id.

6 For a more complete discussion of the history of treatment courts, see Thomas J. Walsh, In the Crosshairs: Heroin’s Impact on Wisconsin’s Criminal Justice System, 89 Wis. Law. 32 (Jan. 2016).

7 Id.

8 Logsdon et al., supra note 3, at 51.

9 Id.

10 Id. at 45 (citations omitted).

11 U.S. Dep’t of Just., Off. of Juvenile Just. & Delinquency Prevention, Milwaukee Cnty. Fam. Drug Treatment Ct., http://ojjdp.ojp.gov/funding/awards/2011-dc-bx-0001 (noting that the “Implementation Grant established the FDTC according to the plan developed by MC Children’s Court, Behavioral Health Division District Attorney’s Office, and the Wisconsin Bureau of Milwaukee Child Welfare….”).

12 U.S. Dep’t of Just., Off. of Just. Programs, A Successful Collaborative Court Model: Milwaukee County’s Family Drug Treatment Court, www.cossapresources.org/Content/Documents/Articles/AHP_Milwaukee_County_Family_Drug_Treatment_Court.pdf.

13 Ctr. for Children & Fam. Futures & Nat’l Ass’n of Drug Ct. Pros., Family Treatment Court Best Practice Standards 157 (2019), https://www.cffutures.org/files/OJJDP/FDCTTA/FTC_Standards.pdf.

» Cite this article: 95 Wis. Law. 16-20 (October 2022).