Termination of Parental Rights

I have just had this article published. It discusses some of the very real challenges we face when trying to address issues if Termination of Parental Rights

Termination of Parental Rights: A Commentary

on Ben-David

PETER W. CHOATE

Child Studies and Social Work, Mount Royal University, Calgary, Canada

Ben-David (this issue) introduced us to the complexity of the factors

that courts consider in termination of parental rights (TPR).

It is an opening to understanding which factors are taken into consideration

and how courts make these challenging determinations.

Yet there are other questions that must be asked before we truly

understand the TPR decisions made by courts across a variety of

legal jurisdictions. This commentary argues that we must take the

inquiry deeper, asking questions that will unpack the complexity

assisting researchers and clinicians. Thus, we will want to know

how courts weigh such important issues as the credibility of the evidence.

What is it about such factors as parental competence, failure

of remediation, and other issues identified by Ben-David that cause

courts to determine TPR is the best choice? Consideration is given

to how Ben-David’s work might be extended using a Canadian

perspective.

Journal of Family Social Work, 18:243–252, 2015

Attachment parenting, resilience but sometimes things go very wrong

There are some very good resources to help parents offer their children good parenting. Virtually every parent I have ever met, even abusive ones, have loved their children even if they didn't know how to love them well. But what leads children who have had good parenting into trouble?

Resources:

Dr. Sears website for attachment parenting

Dr. Michael Unger's resiliency project

Dr. Gabor Mate's website

The Expert witness in child protection - putting limits on

The role of expert witness can be quite powerful in courts. They can have a strong impact on how judges see information and they get an opportunity to frame the data. In child protection, they complete assessments such as parenting capacity (PCA), addiction, mental health and cognitive and risk.

Courts in Canada, have addressed the position of the expert witness in a leading case. The Supreme Court of Canada (SCC) in the case of Mohan noted that an expert must meet certain criteria. The United States has considered this in two leading cases, Frye and Daubert. 

In R. v. Mohan, the SCC identified four criteria for the admissibility of evidence:

• It must be relevant 
• necessary to assist the trier of fact
• should not trigger any exclusionary rule
• must be given be a properly qualified expert 

Careful readers will note similarity between the Daubert conclusions and Mohan.

Writing for the court which held this unanimously, then Justice Sopinka stated:

Expert evidence, to be necessary, must likely be outside the experience and knowledge of a judge or jury and must be assessed in light of its potential to distort the fact‑finding process. Necessity should not be judged by too strict a standard. The possibility that evidence will overwhelm the jury and distract them from their task can often be offset by proper instructions. Experts, however, must not be permitted to usurp the functions of the trier of fact causing a trial to degenerate to a contest of experts.

In a just released decision, the SCC has gone further. Writing for a unanimous SCC decision, Justice Cromwell wrote:

The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance. (White Burgess Langlille Inman v Abbott and Haliburton Co., 2015 SCC 23)

This takes the role of expert further by insisting that the expert has an obligation to the court and the court is charged with ensuring that the expert fulfills that duty. For those who have made a living as “hired guns”, this decision is dangerous news. The highest Canadian court has made it clear that the expert has a primary duty and that duty is to the court.

The SCC goes on adopting an Ontario case, Abbe, stating:

As stated in Abbey, the test for admissibility of expert evidence is now two-fold.

First, the threshold: Mohan factors: relevance, necessity, absence of an exclusionary rule, and a properly qualified expert. At this point, the expert should also be able to acknowledge that she understands that she has a primary duty to the court to give fair, objective, and non-partisan evidence, and that she is willing and able to fulfill that role. Absent a challenge from the opposing party, an affirmative answer to this question will generally be sufficient to establish this threshold requirement.

Second step: The person challenging the ex-[pert (which will be rare) must show that there is a realistic concern that the expert is unable and/or unwilling to comply with his or her duty.  It is not enough to simply allege that the expert has a relationship, interest, or connection to the litigation or to a party. A simple economic concern will likely not be enough, given the realities of modern litigation. However, if there is a concern such as : where the expert has a direct financial interest in the outcome of the litigation; a familial relationship with one of the parties; where the expert will likely incur professional liability is her opinion is not accepted by the court; or where the expert assumes the role of an advocate for a party, then this concern may be made out. The onus then shifts back to the side calling that expert to show why the concerns are not legitimate. (emphasis added.

This really does challenge the notion of the expert as an advocate for one side. The court is really challenging that role.

Experts need to be challenged in my view. I have appeared as an expert in about 150 cases. Thus, I speak from direct experience. An expert must bring to the court data, and an ability to interpret data, that the court is not in a position to do. In assessment work, an expert must also be able to address the standard against which clinical judgment has been made. How has the expert determined that the parent is or is not capable of meeting the needs of the child? Thus, the expert must be able to articulate the basis of the conclusions.

A colleague and I looked at the PCA process and concluded that the standard was poorly outlined. We argued a parent needs to be only good enough. If there is not an articulated standard, then the assessor is able to make one up. Most assessors are from in a privileged position in society by virtue of education, social class and perhaps quite often culture, race and gender. In other words, their social location is quite different from the client in the child protection system. In the absence of a standard, the assessor will draw from their own social location (whether consciously or not) to determine whether a parent should raise their children.

What these court decisions mean is that an expert in child protection should be challenged to determine if they have a clear and articulated understanding of the standards against which they have judged a parent. If they cannot, then I would argue that they have not met the criteria of an expert and should be challenged. Indeed, the court should, not accept someone who cannot do this. It is not a good use of scarce court time.

Reference:

Choate, P. W & Engström, S. (2014). The ”good enough” parent: Implications for child protection. Child Care in Practice, Vol. 20 (No. 4) 368–382

10 Thoughts about Child Protection

I was asked by a group of students to offer some ideas about things that social workers should think about as they consider entering child protection work. Here is the video that raises some questions - I don't expect that everyone will agree with all of these ideas. These are issues that require conversations as we think about child protection.

I would welcome any thoughts you may have.

Child protection industry conspiracy

Having your parental rights to a child terminated must be a traumatic experience. Whether the parent has intentionally abused a child, suffered from serious mental health issues or intractable addictions, there is a permanent hole in the parent's life when a child is lost to them. Even parents who have children removed on a temporary basis, still get up in the morning and see the place where the child used to sleep and feel the loss. Taking a child into care is a step that impacts all involved.

However, there is also a belief amongst some that child protection workers are somehow rewarded with removals and the subsequent adoption of children. Some theorists argue that funding formulas, such as those in the USA, support states taking children into care as opposed to leaving children in families and then trying to improve the family situation.

An example of this thinking can be found in a YouTube video Documentary on the Child Protection Industry. It is not that well done, but it certainly illustrates the thinking.

Critics are able to point to some high profile cases where child protection really did get it wrong. An example is the death of Logan Marr. She was placed in foster care. The foster mother, who was also a former child protection worker, was subsequently convicted of killing Logan. The PBS program Frontline has done a documentary on the case.

Logan Marr

There are many other cases where errors have led to high profile media reports. Like any system, a child protection system is going to get it wrong at times. The challenge of course, is that the price of errors can be high. At the same time, little pubic attention is given to the multitude of cases where things go well and sometimes, brilliantly. Little media time is given to the child who is alive and well today because of CPS interventions.

Child protection workers are constantly walking the line between protecting a child and preserving a family unit. Most child protection legislation seeks to have this balance tip towards family preservation. The appropriate standard for a parent to keep raising the child is not perfection or even being close to it. The standard is good enough.

As my colleague Sandra Engstrom and I are noting in an article we are preparing for publication:

Budd, Clark & Connell (2011) identiCied three domains that they concluded formed elements of minimally adequate parenting. These include:

• meeting the physical needs of the child including the provision of a stable and safe home environment as well as meeting such things as medical and dental needs;
  
• providing for the cognitive and developmental needs; and
  
• addressing and responding to emotional needs including affection and sensitivity, appropriate discipline in order to promote positive behavior (p. 105).

 These same authors also suggest that issues of fit between parent and child form part of minimal parenting capacity. These include child factors such as the developmental stage of the child and the presence of any special needs. Can the parents meet both the needs of the child as well as their own needs? These authors further note that environmental considerations come into play such as culture, socioeconomic status and interpersonal stressors (p. 105). 

However, to suggest that child protection workers, in general, seek to remove children in order to meet the needs of adopting parents, as the above noted documentary suggests, is not supported in any credible research I have been able to find. No doubt, there are some outlier cases where this may appear to have occurred, but there simply is not the evidence to suggest that this is a goal of child protection. Yet, those who have been affected by CPS can well feel aggrieved and seek to shift blame.

My research focuses on child protection errors - cases where they indeed got it wrong and children have suffered. Yes, there are definitely cases of practice errors - Logan Marr is one of those cases. Many errors occur, however, due to systemic problems such as high case loads and insufficient funding of CPS and the intervention systems that can help families.

Social work needs to keep working on the practice errors. Like any system, engineering, aviation, medicine, the profession must learn from its errors. That is essential.

Allegations of conspiracy to take children in order to support adoptions as well as the employment of social workers and other allied mental health professions does little to advance an understanding of the errors. Yet, within their criticisms can be found some powerful areas for discussion as well as an understanding of the deep pain that parents feel who lose their children.

Good enough parenting - a concept in need of development

Child protection is faced with difficult decisions about whether or not to sustain a family unit. That might mean that children are temporarily removed from parental care or they might be sustained in the family with supports. There are times that neither option is available.

But the question that often vexes workers is what is the standard against which to judge parents. There are certainly complex factors beyond the parents such as what are the needs of the child. By looking at parenting capacity and the needs of the child, workers can then consider the fit between the two. A parent may be capable of raising a child whose demands might fall within an average range but not be able to sustain the challenge of a high needs child.

What then is the standard of parenting capacity to be considered? There is a body of research that suggests the standard is “good enough” parenting. For example, Karen Budd has suggested this in some of her writing including her recent book on assessing parents in child protection matters. For the child protection worker, there is a need to figure out what that means in the case in front of them.

The term “good enough” appears to find its origins in the work of British psychoanalyst D.W. Winnicott who raised the idea that it is not appropriate to expect that a parent should approach perfection. Such a demand was unrealistic and something less than that is enough for children.

In a recent presentation, American writer and researcher Dr. Brenee Brown noted that a good question to ask a parent what kind of adult do they foresee their child becoming and can they model that.

Hoghughi & Speight (1998) offered the idea of three notions that could be included in the concept:

1.     love, care and commitment;

2.     consistent limit setting; and

3.     facilitation of development (p. 294).

In a very thoughtful essay, Ramaekers & Suissa (2012), explore the notion. One very valuable idea that they put forward is that parenting is a lived experience (p. 74). If so, child protection may enter the fray when the parent has fallen below a good enough standards but generally be good enough. Looking at the lived experience of the parent and the child offers ways to consider the longer view as opposed to a moment in time that resulted in child protection entering the family.  Has the event represented an exception to the lived experience or not?

Later in their article, they suggest that we might also consider how parents think, wonder, worry, deliberate, interpret and reinterpret what is going on with the child and between the child and the parent. Is there any capacity to reflect and adjust the parenting activity? Or, is the parent stuck in a lived experience that is chronically damaging to the child? What is going on in the relationship between parent and child?  To draw from Bruno Bettelheim, what is their way of doing it which leads to what outcomes for the child (see Ramaekers & Suissa, p. 85).

The concept of good enough also leads to the natural corollary that there will be mistakes. If you are not perfect and just good enough, then inevitable there will be moments when things are not good enough or certainly below desired. What then does the parent do with that?

The parent also exists in a social context. Does the standard equally apply across all such contexts? Except when there are such harmful behaviors as sexual or physical abuse (to name just two) there may well be situations that are tolerated in one social context and not in another. Child protection rolls are full of examples of disadvantaged populations being over represented. Do we look for good enough with an advantaged perspective or can we adjust the lens to know that poverty or other forms of disadvantage will change what is good enough?

An example of such a challenge is whether a disabled parent can be good enough. Swain & Cameron (2003) writing about a small sample in Australia make a fascinating argument that such parents can achieve good enough. However, they also note that the mere existence of the disability can cause child protection systems to quickly judge them as below that standard.

Perhaps we need to acknowledge that we need  not agree with a parenting strategy but accept it if that strategy allows a child to develop in a context in which they are likely to be successful. Prusak (2008) has written a very challenging piece in which he looks at that argument in the context of the Amish people in the USA who may not allow their children to finish school in the public system. Are they doing harm or are they raising children within a belief system that can work and provide the child with a developmental trajectory that is at least good enough?

We have much more work to do in this area but this is an important debate that has not received sufficient attention. Child welfare workers are guided by legislation but it is understanding the concepts of things like good enough that will help them apply legislation in a way that helps children and families.

References:

Budd, K.S., Clark, J. R. & Connell, M.A. (2011). Parenting capacity assessment in child protection. New York: Oxford.

Hoghughi, M. & Speight, A.N.P. (1998). Good enough parenting for all children – a strategy for a healthier society. Archives of the Diseases of Children, 78, 293-296.

Prusak, B.G. (20-8). Not good enough parenting: What’s wrong with the child’s right to an “open future”? Social Theory and Practice, 34 (2), 271-291

Ramaekers, S. & Suissa, J. (2012). Good enough parenting? In (eds). The claims of parenting: Reasons, responsibility and society (pp. 73-97). London: Springer

Swain, P.A. & Cameron, N. (2003). ‘Good enough parenting’: Parental disability and child protection. Disability and Society, 18 (2), 165-177.

Exaggerating, Lying, Stealing Children?

Two stories that appeared in newspapers thousands of miles and continents away present a disturbing picture of how some families have experienced child protection. To what extent they are or are not accurate is difficult to tell. They do present, though, an image of child protection that should cause some serious reflection.

The first appeared in the San Jose Crime Examiner in California. This article suggests that children are badly treated in foster care and refers to the ABC news report I wrote about recently. In dramatic prose, the author goes on to suggest:

Oftentimes, a parent will be investigated by a child welfare agency under a false report or when a mandated reported from school, the hospital, or daycare against a parent. This often sets in motion a set of events that is not only traumatic and terrifying for the child, but also traumatic and terrifying for the family.

The first and often wrong response is to violate the family’s civil rights, and remove the child from the home oftentimes without a warrant, court order, or validated reason. Then they will kidnap, hide, and continue to abuse the child into submission by interviewing, confusing, and twisting the situation to make it fit their view of things.

If the child is adoptable, they will find a home where adoptive parents are waiting and the social workers will promise that they can adopt this child as soon as they terminate the parental rights, without fully investigating the initial claims of abuse. Oftentimes, courts refuse to listen to the parents and punish and sanction them needlessly, all while placing gag orders to cover up these crimes. There are plenty of cases nationwide to prove this is so.

This is certainly not my experience with most social workers and other mental health professionals. In general, I have found that they genuinely seek to find a solution for the child that is in the best interest of that child. Regrettably, there have been cases where I believe that the professional has not been honest but these moments have very much been the exception and not the rule. This is the opposite of what the California article suggests.

Certainly, there is economic pressure on child protection systems which undermines the ability of social workers to do a top notch job. Case loads are too high and the funds needed to properly support families are scarce and shrinking. Society seems unwilling to pay for the child protection system it should have.

A story coming out of the United Kingdom in the Express suggests that social workers are under pressure to exaggerate details of a case. This allows cases to have higher levels of intervention and helps child protection authorities to reduce the risks of having another Peter Connolly case which saw a very high profile death.

These stories also remind us of the very difficult balance between supporting families so that children can continue within them and protecting children from harm that arises in some families.  Critics of child protection also miss the responsibility of the family to provide at least a good enough environment for their children.

It is worth considering the criticisms in these stories as a way to reflect upon what is good practice.