Defending the Weak Side: Psychological Evaluation and C&P Litigation for Parents and Unusual Kids

CPCS attorney are often assigned cases in a C&P case that arrive weighted down with negative information about their client.  The deck seems stacked at the outset. Two or three attorneys against one. Throw in a Court Investigator and a few GALs and the stage is set.  The main struggle in this drama is the clashing of two points of view, child rescue versus family preservation. A parent’s attorney has the universal challenge of overcoming the demonization of the failed parent.  

The driving force behind child custody decisions often reflects what Anna Freud and Albert Solnit have coined as “the best interests of the child.”  Whatever side is taken, all sides agree that the” best interests of the child” is the determining factor. Psychological evaluations, including testing and parent observations (aka bonding assessments), offer a way to construct an affirmative position for parents based on current data, that may have been overlooked by prior evaluators. Psychological tests or Parenting Evaluations cannot manufacture strengths that are not there. Psychologists cannot ethically shape their expert opinion with distorted interpretation of test data. A psychologist can objectively document findings that reflect current functioning.

 A fresh assessment can offer some different views of the parent. Constructing positive arguments can be enhanced by using psychological assessments that strive to offer a comprehensive, strength-based, trauma-informed assessment.  Findings can support positions that maximize a parent’s ability to stay connected to their biological children by measuring progress and assessing psychological attributes that often get overshadowed during out-of-control periods.

 A parent attorney will not have the ability to assess the children independently with psychological tests.  The only child contact allowed is through observed parent-child visits. Powerful affirmative positions can be constructed using the combination of psychological testing for parent and a parent-child observation (aka parenting evaluation.)  Using an Ex-Partie motion for expert funds maintains control of the “legal work product” versus taking a chance with a negative evaluation funded by Medicaid that becomes part of the permanent medical record (subject to subpoena.) 

The Risk-Protection Formula

The main issue in custody conflicts involves the assessment of risk to the physical, emotional, cognitive, and social development of the child.  Risk can either be Active or Passive, and be either physical or psychological. The starting point is recognizing the sources of risk:

  1. Constitutional: genetic givens at birth
  2. Maturational: growth patters unfolding in a genetically altered way
  3. Environmental: physical or psychological trauma from an active or passive source

Psychological assessments can help in defining the source of the parent’s problem.  There may be less demonization if the constitutional or maturational factors dominate the causal elements in failed parenting.

Children are born into a world that is responsible for providing the necessary resources for maturation to occur and for children to meet their various milestone on time, without undue anxiety, and according to social norms.  Risk is the probability that some trauma will interfere with the normal development of the child, leaving them progressively less able to function productively in society. Risk is not an absolute but is a fraction with a numerator of RISK and the denominator as PROTECTIVE FACTORS.  It is impossible to be sure a child is going to be safe. The best way to predict is to have a current assessment of the risk and also protective factors. Psychological assessments can contribute to documenting protective factors based on gains made by the parent.

Risk Factors:

  • Substance Use Disorder
  • Housing Instability
  • Trapped in a Domestic Violence Relationship
  • Dependent on Exploitative Partners
  • Serious and Persistent Mental Illness
  • Developmental Delays
  • Anti-authoritarian Attitude to Protective Agents
  • Social Isolation and Lack of Support
  • Criminal Involvement
  • Mood and Impulse Disorders
  • Sexual Deviancy or Tolerance of Sexual Deviancy with Children

Protective Factors

  • Monitored Drug Screening
  • Documented Recovery Groups
  • Outpatient Behavioral Health
  • Extended Family Involvement
  • New, Positive Partner
  • Educational or Vocational Advances
  • CBHI services including Parent Aide (services for kids to help parents)
  • Entitlements
  • Vocational training
  • Supportive housing
  • Day Treatment or Social Club

This formula should produce a way to predict the impact of reunification on these basic developmental needs of children:

  1. Protection and avoidance of physical and psychological harm
  2. Connection to a reliable and predictable source of emotional comfort
  3. Role model to demonstrate a mature way to solve problems and behave in the world
  4. Opportunities to grow cognitively, emotionally, and socially
  5. Offer good examples of conscience
  6. Psychological sense of security to avoid anxiety

Psychological findings can be aligned with the emerging needs of children creating a narrative that has safety as its primary goal.

The State is quite often well-armed with historical data that is well documented by case managers, behavioral health professionals, and frequently neatly catalogued by a Court Investigator. A parent’s attorney is challenged to maximize the positive elements, often found in the current view, gained from independent psychological testing and parenting observations.  Often, a biological parent’s strongest attribute is their relationship with their children. Traumatized parents may have exposed their children to risk, but very often, they have given all they have remaining to their kids. This can be observed in parent-child interactions during visits. This is frequently the case with multiple kids, multiple fathers, and a span in ages from newborns to adolescents.

Parenting Evaluations

.  Typically, a parenting evaluation begins with an interview with the parent.  This session can help gauge a parent’s stance in the ongoing process. A parent is encouraged to tell their side of the story and challenged to see the other side of the case.  A parent’s growth in maturity can be documented during this interview. The amount of resentment and anti-authority attitudes can be gauged during the interview. This can be a big factor in arguing for the use of protective factors. 

The first parent-child observation involves how the parent and child greet each other. Parenting evaluations often take place during DCF office and field visits or at a clinic.  These are often strange and confusing experiences for all involved. The kids are brought by DCF or a foster parent. A number of qualities of parenting can be captured, again if they are there, during a parent-child visit observation.     They have to leave and connect to their biological parent. This is where attachment can be assessed. The ease of transition, the directness of approach to the parent, which kid goes first, what physical embraces, words, or resistances can be seen.  There is a good chance that this transition observation will reveal the best of what existed during difficult times.  

The same holds true to leaving behavior.  The parent’s cooperation, leading clean up, and not pressuring kids are often obvious and shows a parent’s selflessness and acceptance of the situation.  Parents should not be still blaming DCF or everybody else. The ease of transition is a very big factor in assessing risk and determining safe contact scenarios.

Once the session begins, the parent often brings gifts and food.  A parent’s values or on display. Some overdo it and others underplay it.  Frequently, parents show that they know what their kids like, provide that, and focus 100% on the kid’s needs and behavior, not anything that exists beyond the room.  The parent can demonstrate that they had a meal or play ritual that they followed. The kids often remember and this can open the door to documenting positive attachment. 

The parent can be observed, as many do, to be totally absorbed in interacting with their children.  They are happy. This is a fundamental element of any safety plan. Narcissistic parents can’t help showing themselves as the sole focus or the harmed victim during these visits.  Many parents are not narcissistic and in fact are the opposite which unfortunately has led them into destructive relationships in the past. When applied to kids, this other-orientation is a parental strength.  

As the visit progresses, the parent has an opportunity to have their parenting style documented by a neutral observer to review:

  1. How the parent distributes time, contact, affection, and resources.  Are if there favorites?
  2. If so, who and how much food or toys, and with what effect on other kids.
  3. Limit setting abilities
  4. Affective tone during discipline
  5. Ability to praise an focus on the positive
  6. Capacity to pull family together
  7. Ability to keep boundaries by not mentioning the case or speaking bad about anybody else
  8. Skill at parallel play, interest in games and talent at suggesting activities
  9. Ability to involve less active children
  10. Physical affection that is initiated by kid or parent

While these observations do not confirm the presence of these skills under any 24-hour, 7 day a week pressure of everyday, full-time supervision.  It does allow, however, a psychologist to have an opinion on whether this skill is available for a protective resource to use to maintain safety.

Psychological Testing

Psychological testing involves 6-9 hours of assessment using a variety of instruments to measure intellectual and cognitive abilities, personality structure and functioning, screening for neuro-developmental impairments, and surveys measuring the impact of trauma.  The results of psychological testing are always a mixture of good news and bad. Frequently, the bad news is old news and well documented unless aggressive, trial-oriented assessments have been completed by the State.  

Psychological testing assesses:

  1. Cognitive levels, special skills
  2. Personality structure and functioning, 
  3. Levels of trauma and modes of coping
  4. Levels of depression and anxiety 
  5. Measures of social maturity or life skills 
  6. Motivation, focus, attention, concentration 
  7. Survey measures of sincerity, faking god or bad
  8. The presence or absence of severe psychopathology or extensive neurodevelopmental deficiencies. 

Many parents will have psychological evaluations performed at the worst of times.  The value of an objective and current assessment lies in the ability to substantiate a narrative that contains safe scenarios for the youth involved.

Placing a Parent’s Behavior in Context

A current psychological will undoubtedly include bad news, and in fact, needs to include bad news to be considered a reliable view of the person.  The power of the positive ii supported, and even enhanced, by recognizing the damage already experienced by the child. Stipulating the obvious, even leading with the obvious negatives, can set the stage for a more positive weighing of current findings. 

Overcoming historical data and producing an accurate risk-protective analysis requires building a fraction.  This prediction has a numerical estimate when calculated in this way. This is designed to offer the Finder of Fact a way to calculate the probability of physical and psychological damage stemming from one decision to the other.  Parent’s attorneys regularly begin by attacking the bad news and the messenger. Also, the bad news is analyzed legally and the defense strategy involves restricting the amount of bad news allowed into the record. Affirmative arguments are often limited to recent providers, early reports from recovery clinicians, and lay character references.

A parent’s attorney faces an uphill fight for expanded parental access to the parent’s biological children after years of documented failure.  Psychological data that is fairly collected and presented can offer a way to enter into evidence elements of the parent’s change within the past 18 months.  Risk can be quantified into an equation that can reflect current progress and supports. This allows the Finder of Fact to select from layers of data rather than a global rejection due to past disappointment.  

Thirty years of experience as a home-based clinic and familiarity with trauma research has taught one clear lesson: trauma is intergenerationally passed, like baldness, from one generation, invisibly, to another.  This psychological phenomenon has been extensively studied in generations of Holocaust survivors. This usually begins when the child drops out of school early and drifts away from normal society, unsupported by strong, caring adults.  The paths to destruction often involve substance use disorder, homelessness, incarceration, multiple child welfare interventions, survival insecurity, and crime.

It should be noted that psychological evidence is strongest when presented within the context of documented recovery, service engagement, and visit attendance.  Psychological data can add to the power of the parent’s efforts. Parents that are still out-of-control will eliminate the power of any psychological data that could be beneficial to a parent’s case.

There are certain arguments or narratives that can be supported with psychological data including:

  1. Nature/Nurture: Many parents are born with constitutional impairments to their cognitive abilities.  These cases often involve the DDS and parents that lose their children at the hospital due to cognitive impairments noticed by maternity nurses and physicians.  The parents may be married or in a committed relationship with a similarly impaired mate. Disconnection from their children is not based on trauma-inducing behavior or lack of involvement of a parent.  Psychological data can be used to support the strengths evidenced in social maturity, functional capacity, emotional stability, motivation, intensity of expressed love, and absence of any psychiatric conditions or substance abuse disorder.  This situation is often best resolved by creative open adoption. The key is to de-stigmatize the parent and engage in full-time supervision support.
  2. Biological/Environmental: Parents may be suffering from serious and chronic mental illnesses that are biologically based and not due to parent’s failure to cope with parenting.  Documenting this condition and the protective services known to reduce risk can reduce the bias, stigma, and prejudice associated with substance use disorder and other trauma-induced behavioral disorders. Many conditions can be adequately controlled with services and medicine.
  3. The parent as victim of intergenerational trauma: the documentation of the difficulties faced by the parent during her development can ease some of the demonization and false beliefs that the parent is just selfish and should be deprived.
  4. Attachment is alive in some children: Often, children vary in showing levels of attachment to a biological parent based on the amount of time spent together.  There is often at least one child with a strong emotional bond. This can be documented.
  5. Motivation and focus have returned:  Parents may lose their focus and lose their children, but they may pull themselves back, and demonstrate that they are NOW focused and motivated.  Again, this is an observable series of behaviors tat can be added to visitation attendance and possible documented good visits.
  6. Client’s main problem has been addressed with adequate services and recent documentation (using psychological surveys and interviews) of the absence of certain psychopathology that that contributed to the destructive behavior that led to the removal of the children.  
  7. Parent could be the best alternative for a child or teen who has had multiple failed placements in foster care, special foster care, and residential programs.

The psychologist can offer consultation to refine the details of an argument and assist by consulting with the parent attorney up to and including just before trial.

The Unusual Child

In some instances, the child’s attorney may face the challenge of respecting what their child clients want or what a GAL recommends in the face of strong arguments supporting disconnection from biological parents.  This can occur in families where the oldest child wants back with mother while siblings are comfortable in substitute homes. These unusual child cases may require a creative approach to constructing an argument to support the child’s expressed wishes. Psychological testing may offer support for the child’s stated wishes.

In these rare cases, psychological evaluation can bring in current data to support the child’s ability to make decisions.  Detailed parent-child observations can also add weight to the argument. 

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