Chapter 8. Inappropriate and Unadapted Parenting Assessments in Child Welfare and Family Court

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Assessments to evaluate a parent’s ability to care for his or her child are often crucial to the outcomes of custody proceedings in child welfare and family court. These assessments are generally sought or court-ordered; they are conducted by mental health professionals, primarily psychologists, who then frequently function as expert witnesses in court. This chapter considers the quality, the appropriateness, and the role of bias in parenting assessments of parents with disabilities.

The Role of Assessments in Determining Outcomes

Some scholars link an overly heavy reliance on expert testimony by mental health professionals in decisions in child custody matters to the vagueness of the best interest of the child standard.[588] Guidelines from the American Psychological Association (APA) reflect controversy in the field regarding the appropriateness of such evaluators making “ultimate opinion” testimony recommendations about child custody or termination of parental rights determinations. The acknowledged influence of these evaluators on outcomes leads the APA to caution them against “relying on personal biases or unsupported beliefs.”[589] Psychologists who conduct child protection evaluations are urged to be aware that in TPR there is “a finality prompting both due process protections and higher standards of proof.”[590] The reliance on parenting assessments, conducted with questionable evaluation methods, has raised concerns about invalid and biased recommendations and decisions in general custody evaluation practice.[591]

Using a systematic examination of foster care court cases, Lenore M. McWey, Tammy L. Henderson, and Susan N. Tice found that family therapists are often asked to provide expertise even though they lack knowledge of current foster care policy.[592] In all the cases examined, only two (6 percent) mentioned a therapist seeing the parent and child together before testifying about parental fitness.[593] In one of those cases, a therapist did conduct a family assessment before testifying in court, but the therapist only saw the family together twice for a total of two hours. In the other case, the therapist saw the family once, completed a “parent–child interaction assessment,” conducted family play therapy, then testified about parental fitness. In the rest of the cases, therapists testified that although they had not seen the parent and the children together, they could make decisions about parental rights solely on the basis of the parent’s mental health status. In one case, a parent appealed the lower court’s decision explicitly because the therapist had never seen the family interact together before testifying that parental rights should be terminated. However, the court did not uphold the appeal and asserted that although the therapist “had never seen the children, or seen [the client] interact with them, the therapist had seen [the client]…and admitted that the parent did not qualify as an exceptional parent, not for lack of trying, but for the issues she was still struggling within herself to resolve in therapy.” In another instance, a therapist who worked with a mother at an inpatient facility testified that “based on her interview and testing of the mother . . . the mother lacked the emotional ability to parent effectively.” Again, parent-child assessments were not conducted.[594]

Bias in Assessment

APA guidelines for psychologists regarding child custody evaluations in family law, evaluations in child protection matters, and assessment and intervention with people with disabilities all emphasize the importance of culturally informed and nondiscriminatory practices.[595] According to the APA, “Biases and an attendant lack of culturally competent insight are likely to interfere with data collection and interpretation and thus with the development of valid opinions and recommendations.”[596]

Recent APA guidelines for evaluations in child protection matters incorporate additional language highlighting potential bias concerning parental disability:

“Unrecognized personal biases may compromise the ethical integrity and legal reliability of evaluation conclusions and recommendations. Such biases include those related to age, gender, gender identity, gender expression, race, ethnicity, national origin, religion, sexual orientation, disability, language, culture and socioeconomic status and immigration status…. Societal prejudices, just as perniciously, may lead to discriminatory, unfair use of evaluation methods and reasoning that disrespect examinee’s rights and dignity and undermine the scientific and professional bases of the child protection evaluation…. Psychologists also seek to remain aware of the stigma associated with disabilities often found in child protection cases, such as intellectual disabilities and psychiatric disabilities…and they ensure that they have sufficient professional competencies to provide an objective and accurate evaluation of persons with these disabilities…. In addition, psychologists seek to address aspects of the disability that are relevant to parenting, and remain mindful of the potential impact of stigma or bias in their own professional work and that of others involved in the case.”[597]

APA’s new guidelines for assessment and intervention with persons with disabilities emphasize that “particular care needs to be exercised by psychologists performing assessments in high-stakes, potentially contentious contexts,” including parenting.[598] This exercise of care must include the management of potential bias.

Unfortunately, as attorney Joshua B. Kay notes, mental health professionals conducting parenting assessments “may harbor their own stereotypes about people with disabilities. These stereotypes may reinforce those that judges and agency workers bring to the table, thereby replacing meaningful individualized inquiry with class-based declarations.”[599]

Bias can ripple through the system, beginning with the referral to the evaluator. Analysis of evaluations in the child welfare system suggests that in cases involving parents with disabilities, the referral questions that the courts ask the evaluator to address often reflect bias.[600] Negative assumptions about outcome may be included in the referral and may affect the objectivity of the evaluation. Referral questions are often structured like this:

“If Ms. X. suffers from a mental disability that renders her unable to care for and control the child adequately and if the disability renders her incapable of using reunification services, does the disability nevertheless make it unlikely that she will be capable of adequately caring for and controlling the child if reunification services were provided for six months?”

This question contains a problematic premise from the point of view of disability rights: It assumes that the disability status of the person being tested is in itself sufficient to determine whether the person can access services. In questions like these, no onus is put on services funded by the court to adapt to the needs of the parent with the disability.[601]

Testing of People with Disabilities in General

The Rehabilitation Act of 1973 requires “appropriate adjustment or modification of examinations” and “reasonable accommodations” to avoid discrimination against people with disabilities.[602] Similarly, Title III of the ADA governs psychological practice and requires “reasonable accommodation and the inclusion of modified examinations as a form of accommodation.”[603]

For many years, evidence has indicated that testing people with diverse disabilities may require extensive specialized knowledge and skills; that a measure’s appropriateness for particular individuals with disabilities requires reviewing its validating efforts; that standardized instruments may lack appropriate norms or accommodations; that the meaning of test scores may be significantly altered in the presence of disability; and that erroneous and misleading results can be produced without attention to these issues.[604] According to Rhoda Olkin, distinguished professor and director of the Institute on

Disability and Health Psychology, Alliant International University, “Disability can affect testing in a variety of ways: if tests contain items that measure disability instead of the intended construct, if the process of taking a test is appreciably altered, and if the interpretations of results misapplies able-bodied norms to the client with a disability. A hallmark of testing is standardization, and the essence of disability is individualization.”[605]

Assessment of Parents with Disabilities in Both Systems

Although the Rehabilitation Act and the ADA require modification of examinations as a reasonable accommodation, parents with disabilities are often not afforded these protections when it comes to parenting assessments. Instead, and to their detriment, parents are often evaluated using inappropriate and unadapted assessments.

Evaluators in child custody situations in child welfare and family courts typically use generic standardized tests as well as tests designed to assess parenting. Critics have questioned the validity and reliability of standardized assessment procedures applied to assessment of the capability and functioning of parents in general, as well as instruments specifically designed to assess general parenting.[606]

Concerns about appropriate test selection fall broadly into two categories: ecological validity of the tests and appropriateness of the normative samples for assessment of this population. Ecological validity is the question of whether or not the test measures a construct that relates to the ability in question; for example, whether a test of IQ or performance on the Rorschach accurately relates to parenting capacity. The question of an appropriate normative base relates to whether people in the population being tested were included in the population sample on which the test was normed. APA guidelines urge that psychologists use, whenever available, tests and norms based on populations similar to those being evaluated.[607]

People with disabilities have not been included in the sample populations on which many psychological tests and measures are normed.[608] This increases the likelihood that their test performance will look deficient in comparison with that of the general population. It also makes it impossible to derive population-specific norms that would indicate an expected range of performance on a given test or measure for people with specific disabilities.

In-process research on tests and measures being used in child welfare and family court evaluations of parents with diverse disabilities suggests that it is rare for people with disabilities to have been included in the normative bases of the tests and measures.[609] This is particularly concerning because of the disproportionate role of testing in parenting evaluations of people with disabilities compared with observation of parent-child interaction.

Evaluators’ reliance on psychometric testing has included IQ tests and assumptions about what people with various IQ scores can and cannot do. This is particularly detrimental for parents with intellectual disabilities. According to researchers David McConnell and Gwynnyth Llewellyn, “These tests continue to be administered despite the research evidence demonstrating that parental IQ is a poor predictor of parenting competence. When norm-referenced assessments are used, (sub)normal may be equated with (in)adequate so that the parenting practices and behaviors of parents with intellectual disability are judged subnormal and inadequate rather than simply different.”[610]

In her Whittier Journal of Child and Family Advocacy article, Jennifer A. Culhane said, “Parenting ability is a complex set of variables that cannot be reduced to a simple intelligence test. It is imperative that evaluators asked to determine the parenting capabilities of an individual observe the parent and child together over extended periods of time.”[611] A number of studies have shown that the “parental-child relationship dictates parental fitness and not IQ levels.”[612] Nonetheless, children are often removed primarily on the basis of their parent’s IQ.[613]

Sole reliance on the IQ, resulting in diagnosis of intellectual disability, leads to states having “bypass” statutes. For example, many removals occur simply on a categorical or diagnostic basis, without any individualized assessment or observation of parenting. Such categorical removals also occur when parents have psychiatric disabilities, although specialists urge individualized assessment and extensive observation of the parent-child relationship when assessing the capability of such parents.[614] International researchers Alexander Tymchuk and Maurice Feldman warn, “Psychologists must avoid the trap of making assumptions of parental competency primarily on the basis of IQ scores.”[615]

In addition to problematic interpretation of IQ tests, Benjamin E. Fife examined the quality of psychological assessments received by parents with disabilities involved in TPR cases and found that projective tests tended to be overused on parents with intellectual disability.[616] He points out that forensic psychologists have urged caution regarding the use of projective measures such as the Thematic Apperception Test and the Rorschach with people with cognitive disabilities.[617] These tests generally are used to help assessors describe personality functioning and the relationship of personality traits to other aspects of psychological functioning. Responses that adults with intellectual disabilities make on projective tests run a high risk of being misinterpreted as showing other pathology and should be interpreted with caution.

In a study conducted by Breeden, Olkin, and Taube of 206 family court custody evaluators, two-thirds reported that despite the physical disability of a parent being evaluated, they would use the same tests, in the same way, and with no modifications to the process of testing or interpretation of results. More than 85 percent of the participants had absolutely no specific training regarding conducting custody evaluation with parents with such disabilities; 49 percent had no training in the psychology of disability, disability culture, or disability studies; and almost 63 percent had no training in testing accommodations for people with disabilities. Nevertheless, more than 68 percent of the evaluators had conducted at least one custody evaluation with a parent with a physical disability.[618]

Few psychologists receive adequate specialized education or training regarding disability issues.[619] “Few graduate psychology training programs offer disability coursework.[620] This paucity of training is a major barrier to providing effective services to clients with disabilities.[621] Limited training and experience may leave many psychologists unprepared to provide clients with disabilities with professionally and ethically sound services, including provision of assessments and interventions.”[622]

When evaluators have no disability training, the need for consultation with disability specialists is heightened. APA guidelines emphasize this point: “When an examinee possesses a cultural, racial, or other background with which psychologists are unfamiliar, psychologists prepare for and conduct the evaluation with the appropriate degree of informed peer consultation and focal literature review.”[623]

According to the APA’s guidelines for psychological evaluations in child protection matters, “Particular competencies and knowledge are necessary to perform psychological evaluations in child protection matters so that adequate and appropriate psychological services can be provided to the court, state agencies or other parties…. For example, in cases involving physical disability, such as hearing impairments, orthopedic handicaps, etc., psychologists strive to seek consultation from experts in these areas….”[624]

Despite the heightened need for input from disability specialists, in the aforementioned study of 206 child custody evaluators for family court, only 2 said they would seek consultation when evaluating parents with physical disability, even though most lacked relevant disability training.[625]

In producing such high-stakes, life-transforming reports for child welfare or family court, the APA urges that “psychologists strive to communicate any relevant limitations upon the use, findings, or interpretations of psychological assessment procedures, tools, and/or tests to persons who rely upon their reports or professional opinions/recommendations for guidance or decision-making….”[626]

However, Fife’s analysis of child welfare evaluations regarding TPR of parents with diverse disabilities documents that a significant number of evaluations failed to note the limitations of the reliability or validity of their findings.[627]

Megan Kirshbaum, an internationally recognized expert, describes an evaluation she critiqued for court:

“In one child welfare case the mother had significant cerebral palsy with speech involvement. The father, her partner and attendant, had a history of abuse and severe neglect of the mother. The psychologist evaluating the mother’s capability as a parent did not observe her with her baby as part of the evaluation; rather, he relied on interviews in his office. Since he couldn’t understand the speech of the mother he had the father always present to translate her responses. His evaluation did not cite this as a limitation regarding his conclusions.”[628]

In general, it appears that a lack of familiarity with disability issues and resources has resulted in evaluators underestimating both the limitations of their assessments and the importance of adaptations and input from disability specialists in supporting appropriate practice.

Analysis of evaluations of parents with diverse disabilities for child welfare and family court systems has raised a number of issues that compromise quality, in addition to those previously cited:[629]

  • Informed consent or parental understanding of the evaluation and its meaning tend not to be documented, despite the heightened attention to informed consent required when a parent has an intellectual or psychiatric disability.[630]
  • The parent’s disability is often not identified with the accuracy or specificity required to determine appropriate adaptations in practice.[631] For instance, a mother who was hard of hearing was incorrectly diagnosed as having a cognitive disability when tests were used that did not take into consideration that American Sign Language was her primary language.[632]
  • Inappropriate and stigma-laden language regarding disability, signaling lack of familiarity with disability culture (“afflicted with multiple sclerosis,” “wheelchair bound”), may be used in the evaluation report.[633]
  • When the parenting appears adequate at present, pathological speculations may be included regarding problems that might develop in the future. These speculations often reflect a lack of familiarity with disability adaptations and research regarding parents with disabilities and their children.[634]
  • Poor-quality evaluations are reported to be common, including substandard writing, use of boilerplate analyses by the same evaluator (even forgetting to change the name from a previous evaluation), and verbatim computer-generated interpretations of tests and measures.[635]

One problem in the evaluations for child welfare and family court is particularly critical. Many of these evaluations do follow the APA guidelines regarding multiple methods of data gathering, including clinical interviews, observations, and psychological assessments. However, observation, if it is included, is often minimal, done in clinical offices, or only during interviews. Studies of child custody evaluation practices with parents in general rank clinical observation of parent and child ahead of psychological testing.[636]

Bias and lack of familiarity with disability and relationships between parents with disabilities and their children increase the importance of observation of actual parent-child interaction. It is encouraging that custody evaluations have become more relational in recent years. There is more recognition of the parent-child relationship as important to the functioning of both the parent and the child, and more measures are being used that seek to assess parent-child interaction and attachment.[637]

However, Fife’s analysis of evaluations for child welfare found that parent-child observation and home visits were underutilized as assessment tools in working with parents with disabilities. And when evaluators did observe parents and children together, they tended to describe parental disability in pathologizing terms, often interpreting as pathological aspects of the parent’s functioning with the child that were normal for disability culture and have been found in studies of parent-child interactions not to be detrimental to child development. For example, when a father with cerebral palsy (and no adaptations) needed to take longer to complete a structured play routine with his son compared with nondisabled foster parents, this was identified as evidence of reduced parenting capacity.[638]

Observation of parents with disabilities and their infants or children requires specialized knowledge about disability. Breeden, Olkin, and Taube note, “For example, in evaluation of the emotional attachment of the parent and child, some of the characteristics observed and considered as evidence of poor bonding include a parent’s rigid posture, awkward physical touch, stiffness, blank expression, failure to maintain eye contact with the child, and keeping physical distance[.639] Each of these characteristics could be explained by various physical disabilities. For example, rigid posture, awkward physical touch, stiffness, and blank expression could all describe Parkinson’s disease. Failure to maintain eye contact is the norm for a parent with visual impairment, and keeping physical distance is self-preservation when arthritic joints are painfully inflamed.”[640]

Recent APA guidelines emphasize that it is “essential to consider the interaction between the individual with a disability and his or her environment…the central role of contexts in assessing a person’s psychological functioning.”[641]

Observation in the home setting is crucial during evaluation of parents with disabilities, because the functioning of the parent and the parent-child dyad can be profoundly affected by being in an unfamiliar environment, without the adaptations and home modifications that are normally used. Analysis of evaluations of diverse parents with disabilities documents the rarity of home visiting.[642] In the study mentioned earlier of 206 family court evaluators, only 3 percent said they would do a home visit for a parent with a physical disability.[643]

An important trend that can enhance practice with parents with disabilities is a shift from describing clients as having or not having deficiencies toward using assessments to inform treatment and intervention strategies, discharge planning, and the development of a sense of what might help.[644] However, this approach requires expertise with disability issues and solutions, including the natural adaptive process between parents and children and any adaptations that are used or introduced. All too often, current practice with parents with disabilities and their children is not informed by this expertise.

Conclusion

Parents with disabilities who are involved in dependency or family law proceedings regularly face evidence regarding their parental fitness that is developed using inappropriate and unadapted parenting assessments. To address this issue, state statutes, rules of court, and professional standards must require evaluators to thoroughly investigate whether they are in compliance with the 2012 American Psychological Association Guidelines for Assessment of and Intervention With Persons With Disabilities, and whether they need to modify the evaluation process or incorporate parenting adaptations to provide a more valid, reliable assessment of a parent’s capacities in the context of child welfare and child custody cases. Such standards must require adapted naturalistic observations—for instance, in the parent’s modified home setting rather than an unfamiliar setting—instead of leaving the venue for observation open to the evaluator’s discretion. They must require explicit evidentiary support for statements about a parent’s capacity and prohibit the use of speculation and global diagnostic or disability labels as a ground for limiting custody or visitation. Professional standards must address the problem of using appropriate standardized testing to assess parenting capacity in parents with disabilities. Finally, state legislatures must mandate training for current custody evaluators in the skills necessary to conduct competent disability-related custody evaluations. Such training must include valid methods that directly evaluate parenting knowledge and skills, and must consider the role of ecological factors that may impede or support positive outcomes.