The Child Advocacy Team in Legal Actions
Abstract
This paper provides a general description of child advocacy teams, which are formed in difficult child custody or abuse and neglect cases. They are created when a judge asks that a team assist in determining the child's psychological status and developmental needs, assessing parenting capacities, developing a treatment plan, and monitoring the family's progress. The team consists of representatives from the legal, social service, mental health, and educational systems. The author describes the principles and techniques of child advocacy, characteristics of the professional systems involved, and phases of the team's operation, such as the planning conference, the therapeutic-evaluation process, team meetings, report preparation, and courtroom participation. Outcomes of 77 cases handled by a University of Wisconsin child advocacy team over the past 20 years are presented to show that a team is an effective means of integrating professional and volunteer activities for a family during a child protection or divorce action.
The legal issues that arise when children and adolescents experience divorce and abuse and neglect often involve their families, their schools, human service departments, law enforcement agencies, mental health clinicians, and other professional and volunteer services. Unless these systems are integrated, fragmentation and lack of continuity of services result in repeated and ineffective interventions that are costly in human and financial terms (1,2).
The paper provides a general description of the phases of operation of child advocacy teams and the roles and skills of team members from various systems involved with the family. The team is described as a unique means of integrating professional and volunteer activities on behalf of families involved in child custody contests and child abuse or neglect cases that have not responded to usual mediation and social service interventions (3,4). An analysis of outcomes of 80 consecutive cases handled by the University of Wisconsin child advocacy service is presented to show that a child advocacy team is an effective alternative to mental health consultation and child protection teams.
The characteristics of professional systems
The legal, social service, mental health, and educational systems have different operating styles. The legal system provides a finely tuned forum for ascertaining facts in an adversarial format. Conflicts are resolved by pitting opposing viewpoints against each other. Information is selectively presented to a court by each contesting party to support its point of view. Either negotiation occurs, or one viewpoint prevails.
The social service system operates as a bureaucracy, implementing policies defined by laws. The tactics of social work are carried out through investigative, intervention, and counseling procedures that provide help within prescribed guidelines for people in distress. Social workers are positioned to obtain information from a variety of sources about a particular child and family.
The mental health system operates as a component of the health care system. It is designed to help individuals and families resolve problems and heal emotional, behavioral, and mental disorders. Its tactics employ more in-depth involvements in personal lives than can be achieved in the other systems. Like the legal system, the mental health system is oriented to the intensive study of individual cases and families, but it lacks the resources of the social service system to investigate the life circumstances of families.
The educational system is oriented to imparting knowledge and skills to groups of individuals. An adjunctive function is to manage the behavior and monitor the welfare of its students. It has limited access to personal information, but it is the primary source of information about a child's skills and interpersonal functioning. School personnel are obliged to report suspected child abuse and neglect and truancy to social service or law enforcement authorities.
For a variety of reasons, integration of the legal, social service, mental health, and educational systems is preferable to coordination of these services. The most important reason is that when professionals work together with the same database, much more can be accomplished than when they work in separate systems and attempt to communicate with each other about observations made in different settings. People behave differently in different contexts, and parents and children frequently manipulate professionals against each other. The lack of integration accounts for the current situation in which disarray and inaction result in prolonged and ineffective interventions, stalemated custody disputes, and neglected or abused children.
The authority of the legal system and its power to ascertain facts, the access of the social service system to information about families and its authority to carry out investigations, the healing and conflict-resolving influences of the mental health system, and the monitoring of behavior and skills of children by the educational system are combined in child advocacy teams to provide integrated interventions in custody disputes and child abuse or neglect matters.
The operation of the child advocacy team
The phases of operation of the child advocacy team are team formation, the planning conference, the therapeutic-evaluation process, team meetings, report preparation, and expert testimony (5). The leadership of the team rotates depending on the phase of its operations.
Team formation
When child custody or visitation is contested in divorce actions or at the fact-finding stage of a child protection action, the presiding judge prepares an order on the motion of the guardian ad litem that a child advocacy team be formed to assist in determining the child's psychological status and developmental needs, assessing parenting capacities, developing a treatment plan, and monitoring the family's progress. The order specifies that all family members participate in the process and cooperate with the members of the team and that information gained in the process be reported to the court.
The guardian ad litem and social worker form a child advocacy team composed of a mental health clinician, a representative of the child's school, and other professionals and volunteers as indicated. In most instances these professionals already are involved with the family. The team initiates a therapeutic-evaluation process that includes psychiatric and psychological evaluations of the children and their parents in addition to ongoing counseling with the family.
At the dispositional phases in child protection actions, the child advocacy team recommends conditions parents must meet for reinstatement of physical or legal custody. The recommendations include specific treatment for parents and children. Because the therapeutic evaluation is comprehensive and relies on observations of family members' behavior over time, it continues throughout the court's jurisdiction over the case.
Planning conference
A conference including all professionals involved in the case is held to assemble existing information and plan the therapeutic evaluation. The purpose of the conference is to orient professionals to the concept of child advocacy, obtain authorizations for the release of information, delegate tasks to team members, and define the specific legal issues and procedures to be followed.
The therapeutic-evaluation process
The therapeutic-evaluation process is carried out with the family members and includes assessment of the children's needs, evaluation of parenting capacities and of the family's responsiveness to treatment, and ongoing counseling for the parents and children. Clinical interventions with the family and other treatment resources are provided or coordinated by the team. The guardian ad litem and social worker participate in key clinical interviews, which ensures their access to the same information. The presence of the guardian ad litem underscores the legal nature of the process, and the presence of the social worker enhances the accuracy of the information obtained during interviews with family members individually and together.
The involved parties are informed at the outset that the interviews are court ordered and that the team will make recommendations to the court. Reluctance to disclose information that might be introduced into courtroom proceedings is minimized by the further explanation that any information gained by a professional is subject to judicial summons.
Team meetings
Team meetings are held at appropriate times to evaluate progress and to formulate recommendations to the court, such as at times of scheduled hearings in divorce actions and at six- and 11-month intervals in child protective actions to conform with the 12-month state statutory case review requirement.
In child protective actions, at the end of one year the guardian ad litem recommends to the court discharge of the action, continuation of the action, or initiation of an action to terminate parental rights when parents are unable or unwilling to meet reinstatement conditions (6). In trials, the team members act as the guardian ad litem's expert witnesses. The team collaborates with the litigating county attorney in a termination of parental rights action. The interests of parents are protected throughout the process by their own attorneys.
Preparation of reports
Social workers usually know how to prepare and file reports to courts in compliance with procedures defined by child abuse and neglect statutes. A guardian ad litem can make recommendations to the court as an officer of the court and can call and examine witnesses.
The mental health clinician usually prepares the team's report to the court (5). The clinician is in a position to integrate information obtained by the team from various sources and to make assessments of each member of the family, particularly the capacities of the parents to meet the needs of the children. To ensure that the findings are accurate and as complete as possible, the clinician reviews with other team members all relevant clinical, social service, law enforcement, and legal documents. The material included in the report is limited to what is necessary to demonstrate the thoroughness of the evaluation, the validity of the findings, and the bases for conclusions and recommendations.
The report is written with the expectation that it will be read by all parties as a semipublic court document. A description of the team process and the sources of information available to the clinician are included in the report. The report cites the referral source; the material reviewed; the dates, places, and people involved in interviews; and missed or canceled appointments. Tentative findings and conclusions are so designated, as are those formed with a reasonable degree of professional certainty. The latter are usually defined as being of sufficient certainty on which to base a treatment plan.
Recommendations in the report carry more weight if they are made after the team has evaluated all dispositional alternatives and if they are used to support the disposition that the team believes is the least detrimental to the child's interests (7). When no evidence of a change in pattern of behavior or functional status is available, the assumption that past performance is the best predictor of future performance is reasonable.
Team members as expert witnesses
Generally speaking, expert witnesses are expected to offer opinions about data that are not within the realm of a layperson's knowledge (8). Unlike a witness to facts, an expert witness is permitted to draw on any pertinent information, including hearsay evidence. An expert witness is expected to be able to evaluate the pertinence and reliability of information. The facts on which an expert's opinion are based may be challenged but not the opinion, which involves the professional judgment of the expert.
For better or for worse, the courtroom is the legal workplace in which decisions must be made. It is not a research laboratory or a scientific meeting. The role of the expert is to educate the judge or jury.
To generate an appropriate level of self-confidence as an expert witness, the expert witness should review records immediately before the courtroom appearance so as to be familiar with names, dates, and numbers and use them without reference to records. Such preparation eliminates the need to bring records other than the report into the courtroom, where records invite diversionary inquiries.
In the courtroom, direct examination is followed by cross-examination, during which opposing attorneys usually attempt to discredit the testimony or credibility of the expert witness. It is important that the expert give brief answers. If an attorney's questions are not appropriate, that should be pointed out. If questions are confusing or unclear, the expert should ask that they be repeated or clarified. Pausing before answering a misleading question may give a cue to the friendly attorney to raise an objection. Hypothetical questions are potentially treacherous and usually should be viewed as inappropriate speculations.
When new information is introduced or a reference to the literature is quoted, the expert may ask to review it and can choose to alter an opinion. The routine redirect examination is an opportunity for both attorneys to question the expert again to clarify what has been said or to inquire about new information introduced during the testimony. Following questioning by the attorneys, the judge may question the expert.
The expert witness should ask the attorney who issued the summons to schedule convenient dates for court appearances and to provide an advance briefing both on the questions that will be asked on direct examination and on the probable questions that will be raised on cross-examination. To minimize waiting in court, the appearances should be scheduled so that the expert is the first witness in the morning or the afternoon. When an expert witness is served with an ill-conceived subpoena about which he or she has not been previously informed, the clinician often can avoid it by informing the summoning attorney that the expert testimony will not be favorable to the attorney's position.
An analysis of child advocacy team outcomes
The University of Wisconsin child advocacy service receives complicated divorce and child abuse and neglect cases that have not responded to the usual services offered in communities. For this reason, the cases handled by child advocacy teams formed by the service generally reflect the most intractable family situations.
The records of 77 consecutive cases handled by the child advocacy service between 1975 and 1995 were reviewed to determine the number of billable clinical hours the team's mental health clinician devoted to each case, the length of time the clinician was involved in each case, and the legal disposition of the case. The information available for review extended from the time the child advocacy team was formed at least to the final disposition of the case when the guardian ad litem was discharged. In many instances the mental health clinician remained involved with the family after termination of the legal action.
Forty-one contested divorce cases in which mediation efforts had failed were reviewed. The mental health professional devoted a mean of 14.6 hours per case to evaluation and treatment, with a range of four to 46 hours. The clinician was involved for a mean of 27.9 months per case, with a range of one to 163 months. In 31 of the divorce cases (76 percent), a stipulated settlement was reached; that is, the contesting parties arrived at an agreement out of court through their work with the child advocacy team. In seven cases (17 percent), a court decision based on the recommendations of the child advocacy team was made. In three cases (7 percent) the outcome could not be ascertained.
Thirty-six child abuse and neglect cases that had not responded to routine social service procedures were reviewed. The clinician devoted a mean of 13.7 clinical hours to evaluation and treatment, with a range of two to 36 hours. The clinician was involved for a mean of 17.7 months per case, with a range of one to 89 months. In eight cases (22 percent), the disposition was discharge of the child protection action with reunion of the children and parents. In six cases (17 percent), the disposition was a voluntary termination of parental rights. In 19 cases (53 percent), disposition was an involuntary termination of parental rights, and in three cases (8 percent), the disposition was not ascertained.
For the 77 cases reviewed, the overall mean number of hours spent in evaluation and treatment by the mental health professional was 14.1 hours per case. The overall mean number of months spent per case was 22.4.
Discussion
Parents who abuse and neglect their children usually minimize or do not acknowledge their maltreatment, and parents involved in divorce disputes present opposing views of their children's interests. These parents also tend to project responsibility for their problems onto other individuals or systems. When efforts are made to confront them with their need to change, they often become anxious or angry and do not wish to participate in treatment programs that involve change in their lives. They act like young children who become angry and blame others when limits are set for them.
Just as young children need the security of knowing that parents care enough about them to set limits for them, these parents need benign authority figures to set limits for them. Just as young children test limits and become unhappy when their parents do not reliably control them, these parents become more insecure and angry when reasonable limits are not set for them. The ability of children to manipulate their parents heightens the children's insecurity. For this reason, the ability of parents to absorb the children's anger and to contain their manipulations is reassuring to children. In the same way, the authority of courts and the limit-setting functions of the child advocacy team can be reassuring to threatened and manipulative parents, even while they test those limits.
The usual approach to child abuse and neglect matters is to try to coordinate the services of a number of professionals, each operating in a particular style and in a different place around the child and family. Thus many different professionals may be involved with one family (9). In one case handled by the Wisconsin team, a total of 25 professionals were involved—four guardians ad litem, six social workers, four mental health professionals, four special education teachers, two psychologists, three speech and hearing specialists, a crisis intervention team manager, and a public health nurse. These professionals were unsuccessfully trying to deal with a family in which four children were neglected and abused. The parents were highly skilled at "splitting" professionals by complaining to each about the others. The professionals were vulnerable to these splitting behaviors because each one had a different perspective on the family.
The efficacy of child advocacy teams can be demonstrated by the University of Wisconsin team's work with contested divorce and child abuse or neglect cases. In difficult custody disputes in which mediation efforts had failed, the team obtained stipulated settlements in 76 percent of the cases, avoiding costly litigation and court hearings.
The team also resolved difficult child abuse and neglect cases in a mean of 17.7 months. This finding contrasts favorably with the median length of time children spend in foster care nationwide, which is 32 months, with some episodes of care lasting considerably longer before resolution (10). Because of their relationships with team members, parents seldom sought other expert evaluations.
When professional services are fragmented and discontinuous, it is unlikely that families will receive the diligent help required by child abuse and neglect statutes. In a fragmented system, it also is unlikely that termination of parental rights actions will be timely and effectively pursued when parents are unwilling or unable to meet parenting standards.
Conclusions
The authority of the legal system and its power to ascertain facts, the access of the social service system to comprehensive information about families and its authority to carry out investigations, the healing and conflict-resolving influences of the mental health system, and the monitoring of behavior and skills of children by the educational system are integrated in child advocacy teams to provide a basis for effective and timely interventions in child custody and visitation contests and in child abuse and neglect matters.
Footnote
Dr. Westman is professor emeritus in the department of psychiatry at the University of Wisconsin-Madison, 6001 Research Park Boulevard, Madison, Wisconsin 53719. This paper was presented at the annual meeting of the American Psychiatric Association held May 18-23, 1997, in San Diego.
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Published in print: February 1998
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