Examining Risks to Children in the Context of Parental Rights Termination Proceedings

Introduction

The clinical examination in the context of a parental rights termination hearing can be a critical factor in determining the eventual child placement decision. This discussion is drawn from the author’s experience conducting such forensic evaluations as well as a perspective regarding the role of the expert witness in cases of this type. The vast majority of cases involving child placement and foster care do not result in contested parental rights litigation. Some children are returned to their parents or family, other cases are resolved through some type of long-term foster placement, and in other cases the parent relinquishes his or her parental ties. Thus, the cases that go to litigation are in many ways atypical. There are several things that can occur prior to these cases reaching litigation that can facilitate a positive outcome and placement for the children in question. The focus of the conference for which this article was prepared’ was on identifying effective approaches from psychological, social work, policy, or legal perspectives that can prevent litigation that exacerbates conflicts and problems for the children.

One notable and distressing finding encountered in the course of con-ducting examinations in the context of parental rights termination hearings has been the extent of relevant psychological data that remained uncovered, even though psychologists had completed examinations and extensive casework services had been provided for years. This illustrates the potential significance of comprehensive clinical examination in gathering relevant data and informing the court regarding the case in question. Conversely, it is recognized that the stress of lengthy litigation may impact negatively on all parties, including the children. Therefore, cases that go to litigation run the risk of additional stress on the children and other parties, yet there exists the opportunity for more thorough examination and resulting data that the court can use in deciding the case. This observation reinforces the theme of this discussion, that is, there are both risks and benefits associated with each placement decision. Most cases are resolved without an actual hearing on parental rights termination, thus avoiding the stress and expense of litigation. In other cases, as the adversarial process proceeds, the case will be examined more thoroughly and relevant data regarding the children and families will become available to the court. Furthermore, through the close examination and study of specific cases, the relevant issues and alternative perspectives are defined more clearly. Over the past eight years, the author has had the opportunity to serve as an ex-pert examiner for the State of New Jersey, Division of Youth and Family Services, as well as for attorneys representing parents who were the subject of complaints filed by the Division. The ideas, reasoning, and analysis that follow reflect this experience as well as an appreciation of the relevant literature.

It has been said that the correct answer to most questions in psychology is “it depends.” As a result of training in research methodology, psychologists acquire an appreciation of interaction effects. That is, the impact of any particular independent variable (such as separation) will be influenced or determined by a host of other variables (such as the nature of the separation; the circumstances prior to the separation; the circumstances following the separation; the child’s age and gender; the child’s strengths, weaknesses, and other relationships; and so on). No simple unidirectional model will adequately address complex relationships of this type. Through clinical training, a sense of the uniqueness of each case is gained, which is a further extension of the idea of interaction effects. The clinical examination is a study of an individual case focused on both common and unique characteristics. Although clinical examination is informed by knowledge of norms, trends, and typical patterns, it is recognized that deviation from the norm and error in measurement may be part of the enterprise. Thus, a cautious and critical application of normative data is required due to certain problems with the generalizability of psychological data,’ particularly as it applies to child custody and placement.

As a result, there are certain premises that guide the following discus-sion. These premises include: (1) contested parental rights termination cases are atypical; (2) research data require critical review; (3) the impact of separation will vary based upon a variety of other existing factors; and(4) each case has relevant unique characteristics.

The question of the application of normative data will be discussed further below. What follows is a presentation of general psycholegal questions in parental rights termination. That is, what are the legal issues before the court and how can psychologists and other mental health ex-perts assist the court in addressing these issues. This includes a review of “psychological parent” theory and its impact on the formulation of issues in parental rights termination cases. This Article critiques “psychological parent” theory are argues that adherence to “psychological parent” theory leads to a limited assessment paradigm that omits essential elements in the examination of risks to children in many cases. The term “limited separation paradigm” is introduced to describe the deficient conceptual perspective that derives from “psychological parent” theory. Case material is used to illustrate the process of examination of risks to children in parental rights termination cases and how the “limited separation paradigm” obscures significant aspects of the risks to children.

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