Ties That Bind: The Impact of Psychological and Legal Debates on the Child Welfare System


The harsh dilemmas that arise when the state seeks to separate families, temporarily or permanently, have long confounded all involved in the child welfare system-child welfare workers, lawyers, mental health professionals, judges, birth parents, foster parents, and children. Three fundamental questions involving a mix of psychological and legal issues frame much of the debate. First, what role should a child’s attachment to a foster parent play in deciding whether to return the child to her biological parents from foster care or terminate parental rights? Second, is termination of parental rights followed by adoption the best legal outcome for children who cannot be returned to their biological parents? Third, how intensively and for how long must child welfare agencies attempt to preserve families?Profoundly divergent opinions on these questions have resulted in enormous controversy. Each debate has generated polarized views generally pitting the parent against not only the state child welfare agency, but often against the foster parents and even the child as well.

On April 12, 1994, Legal Services of New Jersey, along with the three New Jersey law schools-Rutgers-Newark, Rutgers-Camden, and SetonHall-sponsored a conference entitled Helping Families in Crisis: The Intersection of Law and Psychology. The purpose of the conference was to explore these debates in an effort to move beyond widely held assumptions that children’s interests and parents’ interests are diametrically opposed. A major focus of the conference was the current viability of Goldstein, Freud, and Solnit’s psychological parenting theory,’ a theory which has significantly influenced each of the debates noted above. The conference sought to reexamine views presented by a wide variety of theorists and practitioners who had convened in New Jersey for a similar conference more than a decade ago, in April 1983, to examine the impact of that theory on deci-sions about terminating parental rights.2 Participants also explored alter-native legal outcomes that avoid the severance of all ties between the child and her family of origin where reunification is not a viable option. Recognizing that the tragic psychological consequences which often occur when the state seeks to terminate parental rights may be avoided by intensive efforts to assist families long before the point of termination, participants in the 1994 conference also outlined strategies for preserving families when their problems begin.

This Symposium issue includes six articles by conference presenters: Too Little Too Late: Designing Family Support to Succeed by Dr. Margaret Beyer; The Good Mother: A New Look at Psychological Parent Theory by Peggy C. Davis; Parents’ Rights vs. Children’s Interests: The Case of the Foster Child by Marsha Garrison; Examining Risks to Children in the Context of Parental Rights Termination Proceedings by Dr. Matthew B. Johnson; Keeping Mothers and Their Infants Together: Barriers and Solutions by Dr. Barry Lester; and Reinventing Guardianship: Subsidized Guardianship, Co-Guardians, and Child Welfare by Meryl Schwartz.

These articles describe the plight of the overwhelmingly poor and vulnerable families who compose the child welfare system. The vast majority are families subsisting on welfare grants; many are families of color. Together these articles portray a system that, rather than assisting families in desperate need of help, deprives them of vital services that might keep them intact. In an endeavor to provide children with permanent homes, this system too often terminates parental rights, separating children from their families of origin forever. The articles are strong testimony to society’s refusal to recognize and address the fundamental needs of poor families.

Suggested Reading

Matthew I. Fraidin∞  This is a transcript of a speech given by Professor Fraidin at the N.Y.U. Family Defense Clinic’s 25th Anniversary Celebration Symposium, held on April 7, 2016. This is the life of a family defense lawyer: A 17-year-old