Deciding if a Mother Is Fit

from: newschool.edu

by Kendra Hurley

Was 22-year-old Jenna Jacobs (not her real name) an attentive and affectionate mother who was able to care for her children despite the fact that she was slightly depressed and mildly mentally retarded? Or did her “psychiatric and cognitive difficulties” mean she would never be able to provide even

“minimally adequate care?” The answer—and the future of her family—depended on which of two psychological evaluations the New York City Family Court chose to believe.

Two agencies evaluated Jacobs, using very different methods. Their contradictory conclusions highlight what observers of the foster care system consider an uncomfortable truth: the evaluations and diagnoses that are used to determine the fates of many families are far from scientific, and can be flawed or misused.

The two assessments could not have been more different. The mental health clinic where Jacobs had received therapy for more than a year said she was learning to “take control of her life, and make life better for herself ” and her two children, one of whom had been in foster care for about four years. The clinic’s evaluation said she was taking good care of her infant daughter and there was no reason to believe she would not be a “loving and effective parent” if she regained custody of her son.

The other assessment was performed by Family Court Mental Health Services, a division of the city’s Health and Hospitals Corporation. There, a psychiatrist interviewed Jacobs for two and a half hours and concluded that she suffered from “chronic” mental illness, adding that her son would be “at risk for neglect” if he were ever allowed to live with her.

As many as one-fifth of parents who come into contact with the child welfare system have a diagnosis of mental illness, according to several attorneys who work in Family Court. More importantly, though, when city investigators allege that a parent’s mental illness is a factor in suspected child abuse or neglect, the children involved are far more likely to end up in foster care, according to data collected by the New York State Office of Court Administration.

During the fiscal year that ended in June 2008, children were removed from their homes in just 35 percent of newlyfiled Family Court abuse and neglect cases that involved no allegation of mental illness—while in cases that did include such an allegation, children were removed and placed in foster care 56 percent of the time.

Even parents who are not initially alleged to have a mental illness often undergo court-ordered or mental health evaluations, as Jacobs did. In the 12 months ending in June 2007, Family Court Mental Health Services received 485 referrals for mental health evaluations for parents charged with abuse or neglect. Other parents and caregivers are often referred to private clinics or hospitals by the city’s Administration for Children’s Services (ACS), the private foster care agencies ACS oversees, or by their own attorneys.

Almost everyone who is evaluated is given a diagnosis, say court officials, lawyers and advocates. And as Jacobs’ case shows, the diagnosis can vary dramatically depending on who is doing the evaluation. “When you’re dealing with mental health issues, there’s plenty of subjectivity and plenty of grounds to disagree,”explains Phil Segal, a former Family Court judge who is now a private attorney practicing family law.

Mental health evaluations are designed to help decipher a parent’s potential or actual mental health issues and plan for the family accordingly. The evaluations attempt to answer important questions: Does the parent really have mental illness, or is she just going through a rough spell? Is the illness treatable, such as a mild case of depression, or is it more intractable and chronic, such as schizophrenia? If a parent receives proper treatment is it likely she can safely care for her children? What treatment and support services might she need? How likely is it that she will stick with a treatment plan?

These evaluations and their diagnoses carry great weight. They frame a parent’s encounters with child welfare workers, helping to determine the supports, services and treatment with which they must comply, often under court order. They can influence the court’s decision about whether children will return home or remain in foster care, and whether or not to terminate parental rights. These diagnoses stay in a parent’s records permanently, even after their children are back home.

Most social service practitioners in child welfare agree that a good evaluation can be a tremendously helpful step toward addressing a parent’s difficulties. “If anything in the intake or in our work with the parent seems to indicate that there are some mental health issues, we try as early as possible to get a clinical evaluation of that parent so that we aren’t sending that parent to inappropriate services,” says MaryEllen McLaughlin, executive director of foster care/adoptive services at Good Shepherd Services.

Others say it’s clear some parents with serious mental illness cannot safely raise their children. They recall notorious cases, such as Andrea Yates, a Texan mother who drowned her five children in a bathtub in 2001 after years of suffering from post partum depression and psychosis. But lawyers and social workers who represent parents with children in foster care say frontline child welfare workers—who are not trained to diagnose mental illness—are often too quick to label parents as “mentally ill,” ordering mental health evaluations for behaviors that may in fact be reasonable responses to extreme pressure and stress.

“There are many diagnoses that get used liberally to describe stress and poverty,” says Jessica Marcus, a supervising attorney with the Brooklyn Family Defense Project of Legal Services NYC. “Somebody is angry and they are classified as hostile. Well, who wouldn’t be angry or hostile if somebody had removed their child from them or threatened to remove their child? It’s a way of basically taking someone’s poverty and powerlessness and treating it like it’s a diagnosis and a disease, when it’s really a natural response to a difficult situation.”

Jacobs’ lawyer, Chris Gottlieb of New York University’s Family Defense Clinic, agrees. “If a caseworker doesn’t like the parent’s attitude, that may be that the parent doesn’t like her and doesn’t like the intrusion of child welfare,” she says. “But that’s not viewed anymore as a conflict with these two people who don’t like each other. All of a sudden it’s an ‘anger management problem’ which is a symptom of a ‘personality disorder.’”

A parent with children in foster care who is ordered by the courts to undergo a mental health evaluation must do so in order to begin taking steps to bring her children back home. And yet, staff at private foster care agencies report that it can be very hard to secure these evaluations for parents in a timely manner, especially by private clinicians who receive relatively little reimbursement for conducting evaluations, or at overstretched hospitals. When parents do get mental health evaluations, Gottlieb and other advocates say that too many are of poor quality, put together hastily by psychologists or psychiatrists who meet the parent once and don’t have a chance to see a parent interact with a child.

Inaccurate diagnoses can hurt families in two ways—by minimizing the problems of a parent who is seriously ill, or by exaggerating the problems of a parent who is able to cope. “This label gets slammed on people, and some really sick people might end up reunifying and well people might end up losing children,” says Jill Zuccardy, a lawyer with Lansner & Kubitschek, which represent parents in Family Court.

Some of the mental health evaluations are sloppy and carelessly written, while others are thorough and thoughtful, says Sandra Walrond, a parent advocate at the foster care agency Leake and Watts. Walrond has worked with several parents who received mental health evaluations scrawled in illegible handwriting. They sometimes describe a person radically different from the parent she knows. “Part of the time we can’teven read it and they don’t get enough information for us to know a diagnosis,” says Walrond. “It’s overwhelming.” One recent evaluation of a parent Walrond works with was only three lines long, and claimed that the parent attended therapy regularly. In fact, says Walrond, she’d only been six times in the last year. “We came to the conclusion that maybe this is not the right evaluation, or maybe the mom didn’t share enough with them,” says Walrond. Indeed, a parent’s discomfort at being interviewed by someone she sees as an extension of ACS or the courts can dramatically affect the evaluation’s outcome.

But other evaluations are done well. Walrond recalls one in particular that included tests for behavior, cognitive and intellectual functioning, speech and mood. It outlined a recommended treatment plan for random drug testing, parentchild counseling sessions to enhance the parent’s discipline skills, and no use of psychotropic medication.

“It was so well-written,” marvels Walrond. “Come on, this is what we need! It’s so hard to get something like this. If we are going to help these parents, we need places that give something that is credible, that we can read, and we’re not getting that.”

Dr. Richard Dudley, a forensic psychiatrist who is frequently called to provide expert opinion and testimony for both criminal and civil cases, says parents who have multiple evaluations receive contradictory diagnoses in about 20 percent of the Family Court cases he has seen. Schizophrenia, for instance, is often confused for bipolar disorder, says Dudley. It is also quite easy to mistake situational depression—triggered by an event, such as the death of a parent or partner—for chronic depression.

He recalls instances in which a parent has had cases in both Family Court and Criminal Court, and the Family Court’s mental health evaluation found her unfit to be a parent because of a mental health issue while the Criminal Court found no grounds for an insanity plea.

Dudley says he has also seen numerous mental health evaluations that accept a previous diagnosis as accurate without further investigation. “We far too easily just assume that the person had been accurately diagnosed in the past,” says Dudley. Similarly, he says, nearly all evaluations result in a diagnosis—whether or not one is justified. “Sometimes you don’t have all the information you need to make an accurate diagnosis, but that doesn’t mean that a diagnosis isn’t made. Particularly in a treatment setting, something has to go on your record to bill it.”

Marcia Werchol, director of Family Court Mental Health Services in Manhattan, says there are other reasons why most evaluations lead to a diagnosis. “You could say there’s a bias factor if everyone referred gets a diagnosis, but if everyone referred had a history of diagnosis or something happened [that makes caseworkers suspect mental illness] than that would make sense,” says Werchol. “That wouldn’t mean that people are being promiscuously diagnosed.”

The problem is, once a parent with children in foster care receives a diagnosis of mental illness, it is much more difficult for her to reunite with her children. A parent must not only prove she has made all the practical preparations for bringing her children back home, such as food and adequate shelter. She also has the difficult task of convincing a judge and caseworkers that her mental illness will not get in the way of safe parenting, which can be tricky to prove.

Whether or not she has been accurately diagnosed, a mother must act as if her diagnosis is indeed accurate in order to get her children back, says Kara Finck, an attorney with the Bronx Defenders, which is funded by the city to provide parents with legal representation in Family Court. “You have to accept the services and admit to the allegation to get your kids back,” explains Finck. The client who does not, she adds, “is viewed through the lens of, ‘you must not want your children back enough, and that’s a bad parenting decision, and that’s perhaps a result of mental health issues.’ And it all spirals out.” Werchol says a tight budget puts her team of about 25 psychologists and psychiatrists under pressure to act efficiently.

As a result, the mental health evaluation clinics in Family Court are “sort of set up to basically be more or less a one shot deal,” she says. Occasionally the evaluator will request permission from the courts to observe a mother with her children or to interview her more than once, but in general evaluations are based on one meeting. “They are not longitudinal evaluations. We’re more about slices as opposed to timeline,” Werchol says. “We’re looking at the bang for the buck issue: what will give us more information in a shorter time frame that is valid? We want to do the best we can as efficiently as possible, and that doesn’t necessarily mean doing the best that can be done if you have unlimited time and resources.”

Werchol acknowledges that advocates’ claims that mental health evaluations are too often biased against parents may have some truth to it. When Mental Health Services first began evaluating parents in the 1970s, Werchol points out, child welfare was focused almost completely on protecting children’s safety, and less on preserving families. Since then, the city’s foster care system has come to acknowledge that “foster care is not a solution,” she says. “The real issue is working with families.” And in some ways, the agency has yet to catch up with this new way of thinking. “There is some element in which we’re more trapped in the adversarial way of thinking,” says Werchol. “Our culture and perspective has not been strength based, it’s too pathologized.”

For Family Court Mental Health Services, says Werchol, this involves training evaluators to identify what services a parent needs, rather than simply deciding whether a child is in danger. “Rather than starting off from the viewpoint of, ‘there is a neglect finding, and we’re just going to see what’s wrong with this person,’ it’s looking at it from a different perspective of, ‘what went into this, and what is there to build on?’” says Werchol. “If we want to be really neutral, we need to look at this more strength-based.”

Changing the philosophy of an organization requires changing not only its culture, but also the perspective of its evaluators, who as clinicians tend to be trained to look for problems instead of strengths and solutions. Through trainings and direct supervision, Werchol says her organization is also trying to acknowledge that the caseworkers and court officials reading the evaluations are not trained in the clinical jargon of her evaluators, and they’re spending more time trying to communicate their findings in lay person’s terms. Werchol says this kind of “change of culture and perspective” for any organization takes time. “It’s not easy, because it’s really a different way holistically of looking at these things.”

Jacobs lost both of her parents when she was 7 years old. After her parents’ deaths, she lived in several foster care homes.

A planned adoption didn’t work out. As a teenager, Jacobs lived with an aunt. She would sometimes disappear from her aunt’s home for long stretches of time, sometimes to spend time with boys her aunt did not approve of. She suffered from depression and had attempted suicide as a teen, according to evaluations from hospitals and health centers where her aunt took her for treatment, copies of which were subpoenaed by Family Court Mental Health Services. One mental health evaluation described her as suffering from post-traumatic stress disorder.

She gave birth to her first child, Bobby, when she was 18 years old. Child protective workers removed Bobby on the grounds that Jacobs’ struggles with mental illness were interfering with her ability to care for her child. A mental health evaluation ordered by Family Court at the time said she had an abusive boyfriend and that foster care caseworkers had observed troubling interactions on supervised visits she had with Bobby.

Sometime later, Jacobs began attending weekly psychotherapy sessions. She gave birth to a second child, a girl. A mental health evaluation conducted by the clinic where shereceived therapy said she was making steady progress in therapy and she appeared to be taking good care of her daughter. “She is attentive and expresses affection, and appears able to interpret the infant’s cues and respond appropriately,” the evaluation said.

When Jacobs was 22 and Bobby was 4, New York City’s Family Court was struggling to decide whether to sever her parental rights to Bobby. Gottlieb knew that if Family Court relied on Mental Health Services’ evaluation, Jacobs would almost certainly lose Bobby forever.

The Mental Health Services psychiatrist interviewed Jacobs for two and a half hours, and did not observe her with Bobby. The psychiatrist deemed her unequivocally unfit to parent.

“Both her psychiatric and her cognitive difficulties are seen as chronic in nature, and it is unlikely that she could achieve the level of stability and consistency within her own functioning which would permit even minimally adequate care of the subject child within the foreseeable future,” the report states. “It is thereby concluded with reasonable professional certainty that this respondent does suffer from Mental Illness as a result of which she is and will remain for the foreseeable future unable to care for the subject child. Such child, if placed in her care, would be viewed at risk for neglect.”

In most cases, a verdict so emphatically against a mother’s parenting ability nearly guarantees that the mother and child will never live together again. To ensure a child’s safety, child protective workers and Family Court officials frequently err on the side of ensuring the child is safe. Consequently, an evaluation like Jacobs’ “is usually the turning point of the case,” says Gottlieb. “If you get a court ordered evaluation that says the mental illness is to an extent that the client can’t care for the child, it usually means that the person is never getting the kids back and that parental rights to the child are terminated.”

However, the evaluation by the clinic where Jacobs had attended weekly psychotherapy for over a year suggested shewas indeed ready to bring her son home. Jacobs’ diagnosis of a mild form of depression “is a common and mild disorder and does not have to interfere with parenting,” the evaluation from this clinic explained. The clinic also observed Jacobs’ interactions with her new daughter. The report concludes: “I have witnessed no behavioral observations which make me feel as though Jenna cannot at this time be a loving and effective parent to her children.”

Jacobs got extremely lucky. She had spent years doing what all parents with mental health allegations must do to get their kids back, complying with a treatment plan that assumed she was mentally ill as the courts deliberated whether to terminate her parental rights. But things turned around for her when Gottlieb became her lawyer and fiercely advocated for her, challenging the mental health evaluation conducted by Family Court Mental Health Services.

By the end of the case, Gottlieb says, everyone who knew Jacobs believed her to not have a serious mental illness, though they did agree she had mild mental retardation. Eventually, Bobby returned to his mother’s care, where Gottlieb says he continues to live today along with his father, his sister and a new baby. A few years have passed, and Gottlieb says the last she heard, Jacobs had been raising her three children without any new allegations of abuse or neglect.