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Chapter 3
CIVIL FORENSIC ASSESSMENT
When most people think of law, they think about criminal law — statutes that specify proscribed acts that violate explicit and cherished social norms, procedures for determining when such acts have been committed, and pun- ishments for the acts committed. Yet the vast majority of law is civil law, which is focused on regulating the day - to - day conduct of human affairs and, in particular, attempting to prevent and resolve confl icts between par- ties. Civil law governs our lives from before we are born until we die; it even controls our actions after we die.
Civil forensic assessments are psychological evaluations intended to assist decision making with respect to matters of civil law. The scope of forensic psychological practice with respect to civil law is as broad as the domain of civil law itself. There are too many specifi c types of civil forensic assessment to enumerate, let alone discuss. Instead, we begin by discussing some of the most common areas of practice in broad or gen- eral terms. We then provide a more detailed discussion of forensic assess- ment with respect to three issues in civil law: civil commitment, parenting capacity, and child maltreatment.
In this chapter, you will become familiar with:
The difference between civil law and criminal law An overview of important topics within civil forensic assessment Civil commitment and civil commitment evaluations Parenting capacity and parenting capacity evaluations Child maltreatment and child maltreatment risk assessments
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CHAPTER OBJECTIVES
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C o p y r i g h t 2 0 1 0 . W i l e y .
A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 4/17/2020 8:22 PM via STRAYER UNIVERSITY AN: 309009 ; Roesch, Ronald, Hart, Stephen D., Zapf, Patricia A..; Forensic Psychology and Law Account: strayer.main.eds-live
60 Civil Forensic Assessment
Britney Jean Spears was born to be an entertainer. Even as a child, she was a star: At age 10, she began appearing on television programs such as Star Search and The New Mickey Mouse Club . At age 17, she completed her debut album, . . . Baby One More Time , and quickly became one of the world ’ s most famous and best - selling singer - entertainers. But she is also a tragic figure whose highly publicized personal problems, which may stem at least in part from a history of mental disorder and substance use, have led to numerous appearances in civil courts.
Spears has appeared twice in court seeking to terminate marriages. Her fi rst marriage, to long - time friend Jason Allen Alexander, took place on January 3, 2004. She was 22 years old at the time. Two days later, she fi led a complaint with the Clark County (Nevada) District Court seeking annulment on the grounds that she “ lacked understanding of her actions to the extent that she was incapable of agreeing to marriage because before entering into the marriage the Plaintiff [Spears] and Defendant [Alexander] did not know each other ’ s likes and dislikes, each other ’ s desires to have or not have children, and each other ’ s desires as to State of residency. ” The annulment was granted after only 55 hours of marriage. (For further information, see http://www.thesmokinggun.com/archive/britneyan- nul1.html ).
Spears ’ second marriage, to Kevin Federline, took place later that year on September 18, 2004 (although the necessary legal documents were not fi led until October 6, 2004). Spears and Federline had two sons together: Sean, born September 14, 2005, and Jayden, born September 12, 2006. But Spears began to behave erratically during her marriage to Federline, including an infamous incident in which she was photographed driving her car while holding a baby in her lap, without any proper restraints. She also expressed unhappiness with her marriage in media interviews and eventually fi led for divorce in November 2006, citing irrecon- cilable differences. This started a legal battle, with both Spears and Federline seek- ing custody of the children. The couple reached an agreement in March 2007 and their divorce was fi nalized a few months later.
Spears ’ problems worsened after her divorce. She attended a substance use treatment facility in February 2007, then shaved her head completely bald with electric clippers a few hours after checking out. After a few days, she attended and completed an inpatient substance use treatment program. Her ex - hus- band, Federline, was concerned about her parenting capacity and requested an emergency court hearing regarding custody, but later cancelled the appear- ance. A detailed custody evaluation was conducted by a California psychologist, Dr. Jane Shatz, the results of which were released in a 700 - page report submit- ted by Dr. Shatz. The court reached a decision in September 2007 that Spears and Federline would continue to have joint custody of their two children, with condi- tions placed on Spears including random testing for drug and alcohol use and attendance at counseling.
Despite the court - ordered conditions, Spears continued to have problems, including being charged with hit - and - run and driving without a license. In October 2007, Federline was granted full custody of both children. But after Spears ignored the court order, police were called to her residence in January 2008. The children
CASE STUDY
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The case of Britney Spears is an excellent illustration of how the civil justice system can be used to help resolve many different diffi cult situa- tions, ranging from family disputes to concerns over people ’ s ability to manage their own business affairs or make decisions about health care. It also illustrates how psychologists (and other mental health profes- sionals) can assist the justice system to resolve these disputes. Although the results of Spears ’ mental health assessment and treatment remain private, there has been considerable speculation that she suffered from mood and substance - related disorders that played a major role in her personal problems. The good news is that there appears to have been a slow but steady improvement in her personal problems since her hos- pitalization in early 2008. She has regained some visitation rights, and the charges against her in connection with the motor vehicle accident were dismissed. She has even regained some of her former glory as an entertainer: Her 2008 album, Circus , and the associated concert tour (see Figure 3.1) had excellent sales, garnered her widespread acclaim, and received numerous awards. Hopefully, the worst of Britney ’ s trou- bles are behind her.
CIVIL FORENSIC ASSESSMENT: MAJOR DOMAINS OF PRACTICE
Think of an area of your life — any area — and you will discover that there are laws that govern it. There are also probably one or more forms of civil forensic assessment conducted by psychologists that are relevant to it. Let ’ s take a quick look at some of the questions addressed by psy- chologists in three major domains of practice in civil forensic psychology: health, children and families, and employment and education.
Civil Forensic Assessment: Major Domains of Practice 61
were placed in Federline ’ s custody and Spears, who reportedly had not slept for several days, was hospitalized and held two days for an emergency mental health evaluation. As a result of this evaluation, a series of legal decisions imposed new conditions on Spears: She was involuntarily hospitalized due to mental disorder; her visitation rights were suspended indefi nitely; and conservatorship (that is, con- trol of her business and fi nancial decisions) was granted to her father and attorney. In addition, a restraining order was granted that forbade a former business asso- ciate, who was suspected of exerting a negative infl uence on Spears, from having contact with her. (Subsequently, additional restraining orders were placed on two former associates.)
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62 Civil Forensic Assessment
Health
Civil forensic assessments in this realm focus on evaluating the nature and severity of psychological impairment, such as mental disorder, to determine what caused it or whether it has caused people to be unable to make sound decisions or control their own behavior. Specifi c legal issues include:
Civil commitment. Do people pose a risk for harm on account of men- tal disorder to the extent that they require involuntary hospitalization or treatment? For example, should a 32 - year - old man found by police walk- ing on a bridge late at night be placed in a locked hospital ward against his wishes because he might attempt suicide? Competence to consent to treatment. Are people capable of express- ing informed, rational, and voluntary preferences concerning their
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Figure 3.1 Britney Spears performing Circus, Boston, March 16, 2009. http://en.wikipedia.org/wiki/File:Circus_Tour.jpg Author: http://www.fl ickr.com/people/36292117@N00/Compulsiveprep_8] This fi le is licensed under Creative Commons Attribution 2.0 License
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health care? For example, should a 15 - year - old girl who has just learned she is pregnant be allowed to make a decision about whether she will have an abortion? Personal injury. To what extent have people suffered emotional, cognitive, or physical harm due to others ’ actions? For example, how severe is the neu- ropsychological impairment demonstrated by an 8 - year - old boy, to what extent can it be attributed to a recent motor vehicle accident, and what are the likely costs of rehabilitating and caring for the boy for the rest of his natural life?
Children and Families
The law governs how marriages and other civil unions are formed and dis- solved, as well as what happens to the children of unions. Psychologists conduct civil forensic assessments concerning issues such as:
Parenting capacity. Are parents capable of providing for a child ’ s current and future needs, and which childrearing arrangement is best for the child? For example, following the break - up of their mar- riage, should a mother and father be awarded shared custody of their children, or should custody be awarded to the mother who plans to move the children to another state where they will have better living conditions? Guardianship. Are people capable of caring for themselves and liv- ing independently? For example, is a 75 - year - old woman in the early stages of dementia able to manage her own fi nances, or should her 50 - year - old son be given the power to make fi nancial decisions on her behalf? Risk for maltreatment. Are children at risk for abuse or neglect in the family home and, if so, what should be done to minimize the risk? For example, a 15 - year - old brother has inappropriately touched his 5 - year - old sister; is the sister at risk for further victimization, or will the parents be able to take reasonable steps to prevent a recurrence?
Employment and Education
People have legal rights to pursue education and employment, even when they suffer from mental disorder. Psychologists are sometimes asked to help determine if such rights have been infringed on appropriately (e.g., in cases where the person poses a risk to safety due to mental disorder) or inappropriately (e.g., if people with mental disorder have been treated in
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64 Civil Forensic Assessment
a stereotypical or discriminatory manner). Specifi cally, psychologists may be asked to conduct assessments regarding:
Fitness for duty/Reasonable accommodation. Are people incapable of performing critical job duties on account of mental disorder, or are there some changes employers could make to their conditions of employment to accommodate mental disorder? For example, a 47 - year - old man was placed on temporary leave from his job as a commercial airline pilot when he experienced an episode of depression. Following treatment and apparent resolution of the depression, is he now fi t to return to work? Discrimination and harassment. Have people suffered discrimination or harassment on the basis of age, gender, or physical or mental disability? For example, is there evidence to support a 54 - year - old woman ’ s claim that she was subjected to sexual harassment at her workplace, and that she suffered serious emotional distress as a result? Workplace violence. Are there reasonable grounds to believe that employees pose a risk to the health and safety of coworkers or members of the public? For example, a 28 - year - old man got into an argument at work with another employee, during which he threw a stapler and screamed he was going to kill the other man. Does this employee actually pose a risk of harm, and, if so, what can or should the employer do to protect the other employees? Disability. Do people suffer from physical or mental disabilities to the extent that they are unable to engage in normal educational and employment activ- ities and may require special assistance? For example, a 24 - year - old woman was diagnosed with a schizophrenic disorder at the age of 17 and, despite being compliant with treatment, has not attended school or worked since. Is she capable of supporting herself, at least to a limited extent, or does she qualify for fi nancial support from the government?
This list is by no means extensive or comprehensive; the topics that could be discussed are limitless. For example, specialized risk assessments may be conducted in the context of immigration and refugee hearings or fi rearms acquisition; or, specialized competency evaluations in the context of such things as entering into contracts, making wills, or testifying in civil court. But let ’ s turn now to a more detailed discussion of three issues: civil com- mitment, parenting capacity, and child maltreatment.
CIVIL COMMITMENT
Civil commitment is involuntary treatment or hospitalization of individuals on the grounds that they pose a risk to themselves or others on account of
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mental disorder (Winick, 2008). The issue is, in essence, one of public safety: Governments have a legal responsibility to protect citizens, and this includes the responsibility to protect them from the harmful consequences of physical or mental illness (Gostin, 2005). In a very real sense, then, civil commitment is about containing dangerous illnesses , rather than dangerous people .
The responsibility of governments seems clear with respect to physical illness. Take the example of a disease such as tuberculosis, some forms of which are very contagious and carry a high risk of morbidity and mortality. Various levels of government in the United States have enacted laws and established regulatory and enforcement agencies to help prevent and con- trol the spread of infectious diseases such as tuberculosis (Gostin, 2005). People entering the country may be screened for infectious tuberculosis; physicians may be mandated to report new cases to agencies responsible for surveillance; people diagnosed with the disease may be involuntary detained (i.e., quarantined), even against their will; and healthy people liv- ing or working in certain areas may be required to undergo immunization if they might be or have been in contact with an infected person. When the illness is mental rather than physical, the underlying logic for civil commitment — to prevent harm to citizens — is the same.
Laws that allow involuntary treatment and commitment of physical or mental illness clearly infringe on the basic rights and freedoms of citi- zens. This infringement may be legally justifi ed on two grounds (Melton, Petrila, Poythress, & Slobogin, 2007; Morse, 2002, 2004; Schopp, 2001). First, governments have parens patriae powers to act as guardian or caretaker for individuals who are deemed unable to make decisions about their own health and welfare because they are physically or mentally ill. Second, governments have police powers to control people who threaten public order, whether or not they are physically or mentally ill.
Civil commitment on the grounds of mental disorder, then, is different from criminal commitment , which is a sentence following conviction for a criminal offense. Criminal commitment is inherently and deliberately punitive. It is intended to make people suffer for harms they have perpe- trated and for which they are morally culpable. In this respect, it is focused on the past, on what has already happened. (For further discussion of criminal commitment, see Chapter 10 .) But civil commitment is preven- tive. Civil commitment is intended to minimize potential harm and to look toward the future. Laws regarding civil commitment make no assumption people are morally culpable for the risks they pose, and may even assume that people are not culpable for the illnesses they suffer. For this reason, civil commitment is not punitive in nature, and, in fact, the procedures for and conditions of civil commitment must not be punitive if it is to be legally justifi ed.
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66 Civil Forensic Assessment
Two general forms of civil commitment exist (Melton et al., 2007; Schopp, 2001; Slobogin, 2007). The fi rst, and most common, is tradi- tional civil commitment under mental health law. It does not require that people have any history of harmful behavior, but instead requires they pose an imminent risk for serious harm to self or others due to acute mental disorder. Imminent typically means that the harm is likely to occur in the immediate future (i.e., in the coming hours, days, or weeks). Harm that is more distant (e.g., months or even years in the future) may be irrele- vant. Serious typically means that the harm has the potential to result in serious injury or even death. Common examples of serious harm include life - threatening self - injurious or assaultive behavior; relatively minor or indirect forms of harm (e.g., abusing alcohol, making superfi cial cuts on one ’ s own arm, threatening or slapping, damaging property) may be insuf- fi cient to justify civil commitment. Mental health law in some jurisdictions may permit civil commitment if individuals are at imminent risk for seri- ous health problems because of failure to provide essential care for them- selves (e.g., they cannot meet basic hygiene, nutritional, or health care needs). Acute mental disorder typically means a serious and often tempo- rary disturbance of thought, affect, or behavior that impairs people ’ s ability to make rational decisions or regulate their own actions. Laws may allow commitment only on an inpatient basis, or they may allow either inpatient or outpatient commitment. The time frame for commitment typically is short - term in nature, with a time horizon of days to weeks, although the laws in most jurisdictions allow for extension, if necessary. Involuntary treatment generally is permitted as part of civil commitment, although some jurisdictions permit intrusive or invasive treatments, such as medica- tions or surgery, only when the person also is deemed incompetent to make decisions about health care.
The second form of civil commitment is under specialized statutes, such as sexually violent predator laws or similar laws targeting offend- ers with dangerous and severe personality disorders, which target criminal offenders nearing release from a custodial sentence for a violent offense (Buchanan & Leese, 2001; Janus, 2000). This newer form of civil com- mitment typically requires that people pose a long - term risk for harm to others due to mental disorder. Long - term typically means in the coming years, perhaps for the duration of the person ’ s life. Harm to others typ- ically means serious violence or sexual violence, depending on the law. Mental disorder typically means a chronic disturbance of thought, affect, or behavior due to conditions such as paraphilia or personality disorder. The civil commitment in this case is usually inpatient, at least initially, and the term of commitment is extended, with a time horizon of years; it may even be indefi nite.
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Traditional civil commitment laws have existed for hundreds of years, since the 1500s and 1600s. In contrast, the newer forms of civil commit- ment have existed for only a decade or so and are much more controversial, because their focus is on offenders and a long - term or indefi nite time frame, making them appear to be punitive rather than preventive. (For fur- ther discussion, see Janus, 2000; Morse, 2002; Schopp, 2001.)
There are no good data concerning civil commitment rates for the United States or, for that matter, most other countries. There are many rea- sons for this (e.g., H ø yer, 2008). One reason is that people ’ s legal status as voluntarily or involuntarily committed or treated apparently is not con- sidered in health care statistic databases. Another reason is that keeping statistics is complicated by the existence of several forms of civil commit- ment (i.e., traditional, with or without involuntary treatment versus com- mitment of violent or sexually violent offenders). Yet another reason is that people ’ s legal status as voluntarily or involuntarily committed or treated can and does change quite frequently over time, even during the same course of care in a hospital or in the community, which means there are frequent errors in recording statistics. Estimated rates of civil commitment for a given country in a given year can differ greatly; trying to compare rates within a given country over time or across countries at a given time is fraught with diffi culty.
Civil Commitment Procedures
The specifi c procedures by which people are civilly committed differ across jurisdictions, but the general procedures in the United States are as follows (e.g., Melton et al., 2007). First, a person is brought to the atten- tion of a person in authority as someone who may pose a risk of harm to self or others on account of mental disorder. A person in authority means someone who is legally entitled to make decisions about civil commit- ment. Depending on the jurisdiction and the circumstances of the case, the person in authority may be a law enforcement offi cer; a health care provider, such as a physician or psychologist; a mental health tribunal or review board; or a civil court. Second, the person in authority gathers or reviews available information according to procedures outlined in law and determines whether there is suffi cient evidence to commit the per- son. This commitment may be short - term (e.g., 24 to 72 hrs) for the pur- pose of further assessment of the person, or it may be long - term (e.g., weeks or longer) for the purpose of detention or treatment. Typically, police or health care providers have the power to order only short - term commitment, whereas tribunals, review boards, and courts may also order long - term commitment. Third, the case is reviewed by a tribunal, review
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68 Civil Forensic Assessment
board, or court at the end of the initial period of commitment. If the ini- tial commitment was short - term, the new assessment results are presented and a decision is made whether to release the person, extend short - term commitment to allow further assessment, or order long - term commit- ment. If the initial commitment was long - term, information about the per- son ’ s recent and current functioning is presented and a decision is made whether to release the person or extend long - term commitment for a period of time, at which point the third step is repeated.
The general procedure for civil commitment includes clear protections for the person who is subject to civil commitment, known as due process protections , something forced (or reinforced) by the U.S. Supreme Court ’ s decision in the case of O ’ Connor v. Donaldson (1975). The due process protections include the following:
The person has the right to legal representation through the process. The person has the right to regular review of commitment. The party seeking civil commitment is responsible for proving the per- son meet grounds for civil commitment. Decisions about civil commitment must respect the least restrictive alternative principle , which holds that the goal of protecting the per- son or the public must be accomplished in a way that minimizes any infringement on the person ’ s rights and freedoms.
Despite due process protections, civil commitment is an inherently coercive process. By defi nition, the person has expressed a preference not to be subjected to the hospitalization or treatment sought by others. Unsurprisingly, coercion works. Involuntary hospitalization and treatment are at least temporarily or moderately effective in containing the risks of harm posed by people who are subject to civil commitment, and may even lead to improvement in symptoms of mental disorder. But, also unsurpris- ingly, detaining people against their wishes risks interfering with attempts to establish and maintain a supportive and effective treatment relationship. Put simply, civil commitment can save lives, but it can also destroy people ’ s trust in and relationships with health care providers, family members, and others.
An important development in mental health law over the past 20 years has been the search for alternatives to traditional civil commitment. One alternative is outpatient commitment, in which people are not detained in a hospital for treatment but instead are allowed to reside in the commu- nity under conditions (Bonnie & Monahan, 2005). But treatment is still coerced: People who are subject to civil commitment may be threatened with eviction from housing, loss of social support payments, or involuntary hospitalization if they fail to comply with treatment by refusing to take
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medications or using alcohol and drugs (Bonnie & Monahan, 2005). Also, some critics have expressed concern that the existence of outpatient com- mitment may actually increase the rate of civil commitment, and especially civil commitment of people suffering from less serious mental disorders or pose relatively low risks, a process sometimes referred to as net widening (Geller, Fisher, Grudzinskas, Clayfi eld, & Lawlor, 2006). Finally, there is simply no evidence from systematic reviews that outpatient commitment is effective in reducing health service use or improving clinical outcome and social functioning relative to traditional forms of treatment, voluntary or involuntary (Kisely, Campbell, Scott, Preston, & Xiao, 2006).
Another alternative to traditional civil commitment is the use of psychi- atric advance directives (Henderson, Swanson, Szmukler, Thornicroft, & Zinkler, 2008). Advance directives allow people to express their prefer- ences for future treatment when they are fully competent to do so. In the event that they later suffer a mental disorder that impairs their competence to make decisions about competence, treatment can proceed according to the advance directives. One problem with this approach is that the advance directives cannot anticipate all possible future circumstances, including such things as changes in the nature or severity of symptoms (e.g., severe sui- cidality) or the advent of new treatments (e.g., a new drug with fewer side effects than older drugs). It may be possible to argue that people would have written different advance directives if they had foreseen such circumstances.
A third alternative is to provide better voluntary health care services, so that civil commitment is not necessary. For example, Greenfi eld, Stoneking, Humphreys, Sundby, and Bond (2008) investigated the effec- tiveness of a crisis residential program—an unlocked ward managed by mental health consumers (people who have experienced and received treat- ment for mental disorder). They randomly assigned 393 civilly commit- ted people to either the crisis residential program or a traditional ward, which was locked and managed by health care providers. People were interviewed at admission and then at 30 days, 6 months, and 1 year after admission. People admitted to the crisis residential program exhibited sig- nifi cantly greater improvements in psychiatric symptoms, according to both self - report and observer ratings, than did those admitted to the tradi- tional ward. In addition, satisfaction with health care services received was much higher among people admitted to the crisis residential program.
Evaluations for Civil Commitment
Psychologists in some states perform evaluations to determine whether people may be civilly committed. Psychology also has made important contributions to the development and evaluation of assessment procedures
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70 Civil Forensic Assessment
to assist evaluations for civil commitment. In this section, we take a look at civil commitment evaluations.
To reiterate, people may be civilly committed only if they pose a risk to self or others on account of mental disorder. Analyses of this issue by numer- ous psycholegal scholars (Melton et al., 2007; Morse, 2004; Schopp, 2001) concur that three general requirements must be met. First, the person must currently suffer from a mental disorder. Second, the person must currently pose certain risks. And third, the risks must be due at least in part to the men- tal disorder, or, put differently, there must exist a discernible causal nexus or causal connection between the mental disorder and the risks. These require- ments are illustrated in Figure 3.2 . Let ’ s take a closer look at these require- ments and how they are considered as part of civil commitment evaluations.
Mental Disorder Arguably, this should be the most straightforward part of civil commitment evaluations. In the United States, the law recognizes that psychologists, by virtue of their education and training they receive, have special expertise in the assessment and diagnosis of mental disorder (Melton et al., 2007). Psychologists typically evaluate the presence of mental disorder using a clinical interview and review of collateral information, but they can also utilize a wide range of tools. These tools include psychological tests, such as self - report inventories, structured interviews, and ratings scales, as well as standardized diagnostic criteria, such as those in the revised fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM - IV - TR; American Psychiatric Association, 2000), something psychologists had a hand in developing.
The task for evaluators, however, is a bit more complicated than it might appear on the surface. First, the defi nition of mental disorder used in psy- chology may be very different from that used in mental health law. To assist legal decision making, however, psychologists must use the defi nition of mental disorder that is set out in statutory or common law. A second com- plication is that the law is not interested in whether a person ever has suf- fered from a mental disorder, but rather whether a person currently suffers from a mental disorder. Lifetime diagnoses of mental disorder are generally
Mental Disorder
Causal Nexus
Risk to Self or Others
Figure 3.2 Three Requirements for Civil Commitment
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more reliable than present state diagnoses. Third, not all forms of mental disorder are assessed and diagnosed with equivalent reliability and valid- ity, and the general level of reliability and validity is far from ideal. Finally, not all forms of mental disorder are equally relevant to civil commitment. Evaluators need to pay careful attention to those forms of mental disorder that are established risk factors for harm to self through self - injury or self - neglect, harm to others, and incompetence to make decisions about treat- ment. For example, psychological research indicates that short - term risk of physical harm to others (i.e., violence) is more strongly associated with cer- tain forms cognitive, psychotic, and mood disorders than are other forms of mental disorder such as anxiety or adjustment disorders (Friedman, 2006; Sirotich, 2008); in contrast, long - term risk for sexual violence is most strongly associated with paraphilias and personality disorders (Hanson & Morton - Bourgon, 2005). Comorbid (i.e., co - occurring) substance - related disorders further increase risk for both types of violence.
Risk of Harm The U.S. Supreme Court emphasized in O ’ Connor v. Donaldson (1975) that civil commitment can be justifi ed only when there is danger or risk of harm stemming from a person ’ s mental disorder. But different jurisdic- tions defi ne the nature and degree of harm that must be posed in different ways. As discussed previously, the common element across jurisdictions is risk of harm to self or others that is both imminent (i.e., in the coming hours to days) and serious (i.e., life - threatening). Other jurisdictions, how- ever, broaden the defi nition to include risk that is more distal (i.e., days to weeks, months, or even years, especially for newer forms of civil commit- ment, such as under sexually violent predator statutes) or less serious (i.e., psychological harm, deterioration of physical or mental health).
The topic of risk assessment was raised in Chapter 2 , and we will return to it frequently throughout this text, because risk assessment is central to the practice of forensic psychology. Risk assessment is always diffi cult because it involves speculation about what might happen in the future, whereas most psychological evaluations focus on what happened in the past or the current state of affairs. Risk assessment in the context of civil commitment is even more diffi cult; psychologists must keep in mind the various harms that are (and are not) legally relevant. Psychologists may have to conduct risk assessments that include risk for suicide but exclude risk for nonlethal forms of self - injury; include risk for physical assault, but exclude risk for threats or intimidating behavior; or include risk for sexual violence against strangers, but exclude risk for sexual vio- lence against acquaintances such as family members, intimate partners, and so forth.
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72 Civil Forensic Assessment
Psychologists have developed tools to help structure risk assessments for civil commitment. These risk assessment tools typically help to focus evaluators on a relatively small number of factors considered critical to risk. Some are highly structured tests, known as actuarial instruments , which tell evaluators exactly which risk factors to consider and how to combine them to estimate the probability of future harm. For example, the Classifi cation of Violence Risk, or COVR (Monahan et al., 2005), is designed to estimate the likelihood that a person discharged from an emer- gency psychiatric unit will commit an act of physical violence — including threats made with weapons in hand — within the next 20 weeks. It comprises 40 items that are administered by computer and rated by evaluators on the basis of patient self - report and, where necessary, fi le information. The COVR uses adaptive testing procedures: To streamline the assessment, the items that are administered and the order in which they are adminis- tered is determined by software based on the pattern of responses. The software then gives a specifi c probability estimate that the person will be violent. Another example is the STATIC - 99 (Hanson & Thornton, 1999), which is designed to estimate the probability that a person who has com- mitted a sexual offense in the past will commit another offense within 5, 10, or 15 years following release. The STATIC - 99 is a 10 - item rating scale completed on the basis of fi le information and, when necessary, interview. Items ratings are simply added to create a total score, which then can be used to estimate the probability of recidivism.
Other risk assessment tools provide a basic list of risk factors that should be considered, but they do not tell evaluators how they should be weighted or combined and cannot be used to estimate the probability of future harm. They are sometimes referred to as structured professional judg- ment (SPJ) or evidence - based guidelines. One example is the HCR - 20 (Webster, Douglas, Eaves, & Hart, 1997). The HCR - 20 is designed for guide evaluations of risk for actual, attempted, or threatened physical harm of other people in institutional and community settings. It focuses evaluators on 20 primary risk factors related to a person ’ s past function- ing ( H istorical items), current functioning ( C linical items), and future plans ( R isk Management items). Another example is the Sexual Violence Risk - 20, or SVR - 20 (Boer, Hart, Kropp, & Webster, 1997). The SVR - 20 is designed to guide evaluations of risk for sexual violence. It also focuses evaluators on 20 factors related to the person ’ s psychosocial adjustment, history of sexual offenses, and future plans. The HCR - 20 and SVR - 20 manuals summarize the theoretical and empirical support for each risk factor, and also provide guidelines for assessing its presence.
The COVR and HCR - 20 are potentially relevant to traditional civil commitment evaluations, whereas the STATIC - 99 and SVR - 20 are
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potentially relevant to sexually violent predator evaluations. Research supports the basic reliability and validity of all these tools: Different evaluators who evaluate the same person tend to reach similar fi ndings, and people rated as higher risk tend to have signifi cantly higher rates of future violence or sexual violence than do people rated as lower risk (e.g., Hanson & Morton - Bourgon, 2009). But all of them have serious limita- tions for use in civil commitment evaluations. First, the defi nition of harm used for each tool was not intended to match the legal defi nitions used in various jurisdictions. This means the fi ndings are not necessarily legally relevant. For example, none of these instruments assesses risk for self - injury, suicide, or self - neglect. Second, none of the tools is comprehen- sive. Evaluators must consider whether there are circumstances or risk factors in a given case that should be considered beyond those included in any tool. This means there is always an element of subjectivity or discre- tion in a risk assessment, even when actuarial instruments are used. For example, the presence of many risk factors may be rendered meaningless by the fact that the person has developed a permanent and disabling medi- cal condition; or the presence of few factors, by the fact that the person has made clear and credible statements of intent to commit harm. Third, it is impossible to estimate the specifi c probability that a given individ- ual will commit harm in the future using any procedure. Actuarial instru- ments provide probability estimates that are based on statistical profi les of what happened in groups of other people in the past, they cannot directly calculate what a person will do in the future. SPJ guidelines do not even attempt to provide probability estimates, as they emphasize that risk of harm depends on future living circumstances.
Causal Nexus Although civil commitment laws recognize mental disorder may be asso- ciated with risk to self or others, it is not always or even often associated with risk. According to psychological research, the law is correct: Most people with mental disorder do not commit serious violence, and the risk for harm to self or others associated with most forms of mental disorder is small (Choe, Teplin, & Abram, 2008). For this reason, it is not permissible under mental health law to civilly commit people solely because they have been diagnosed as suffering from mental disorder at some point in their lives. This would be stereotypical and legally discriminatory, infringing in the rights of an entire class of people (those suffering from certain mental disorders) because of problems with a few. As a consequence, civil com- mitment requires an individualized assessment, a demonstration that this person currently suffers from a mental disorder that causes this person to pose a risk for harm to self or others.
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74 Civil Forensic Assessment
But how does a psychologist determine whether or to what extent any risk of harm is attributable to mental disorder? As yet, no one has devel- oped a tool that attempts to directly evaluate or quantify the causal nexus between mental disorder and risk of harm. The problem is that a causal nexus does not exist physically, and cannot be proved or disproved through physical evidence. Rather, it is an explanation, interpretation, or account of evidence whose plausibility is judged according to the extent it coheres with the facts of the case, common sense views of the world, and (where applicable) scientifi c research and theory. This explanation must be based on something more than the mere co - occurrence of mental disorder and risk of harm to self or others. (In this way, the law avoids discriminating against people with mental disorder.) Evaluators must instead attempt to rule out other plausible explanations, such as chance or the presence of some other factor responsible for the risks.
PARENTING CAPACITY
Parenting capacity evaluations — also referred to as parenting respon- sibility and child custody evaluations — are psychological assessments of people ’ s suitability to act as caregivers for children (Ayoub & Kinscherff, 2006; Sparta & Stahl, 2006). They are conducted when people ’ s rights and responsibilities with respect to childrearing are in confl ict. On the one hand, parents or guardians have legal rights to raise their children as they see fi t but, on the other hand, they have responsibilities to provide the necessities of life to their children and provide an environment that pro- tects the safety and well - being of children.
Confl ict regarding childrearing can take many different forms. One type of confl ict arises when parents ’ rights confl ict with their responsibili- ties. This can happen when, for example, the religious beliefs of parents proscribe certain kinds of medical treatment that might save their child ’ s life. In such cases, another interested party, such as a hospital or child pro- tective services agency, may ask courts to override the rights of parents and act as a substitute decision maker concerning treatment of the child. A second type of confl ict arises when the rights of one parent confl ict with the rights of another parent. This can happen when parents who are not cohabiting cannot agree concerning who should have primary custody of their children. A third type of confl ict is when the rights of parents con- fl ict with the rights of their children. An example would be when children disagree with their parents about some health care decisions or about cus- tody, access, or residence arrangements following divorce or separation. This is especially likely to happen as children age and their legal rights increase. A fourth type of confl ict is when the rights and responsibilities of
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parents confl ict with those of other interested parties such as extended fam- ily members, police, or child protection agencies. For example, in some jurisdictions grandparents may have limited rights to petition courts for access to their grandchildren, despite the wishes of one or both parents.
Most parenting capacity evaluations are conducted in the context of cus- tody or access disputes , which fall into the second type of confl ict already discussed. The prototypical scenario involves two parents who are in the process of dissolving their relationship (or have already done so) but disa- gree about where the children should reside, how much time the children should spend with each parent or other members of their extended families, or how to share responsibility for making decisions about the children ’ s health care and education. If these disputes cannot be resolved informally, the parties may go before the courts and seek a remedy under civil law.
Scope of the Problem
There is no way to determine how often parenting capacity evaluations are conducted in the context of custody or access disputes in the United States. To give some insight into the scope of the problem, Emery, Otto, and O ’ Donohue (2005) noted that disputes involving family matters accounted for more than 25% of all matters fi led in civil courts, and most of these disputes centered on custody and access issues. Emery and col- leagues went on to summarize some relevant statistics about marriage in the United States: almost 50% of marriages end in dissolution (i.e., sepa- ration or divorce); about 60% of marriages that end in dissolution involve children; and about 50% of marriages that end in dissolution do so within 7 years. But this is only part of the picture. It is increasingly common in the United States for partners to cohabit without entering into marriage (an arrangement that may be referred to as common - law marriage in some jurisdictions). These cohabiting but unmarried couples are more likely to have children than are married couples. They are also more likely than marriages to end in dissolution, with 50% failing within 5 years. Taken together, these fi ndings suggest that custody and access disputes may be the single biggest issue in civil law.
The picture is, however, not completely bleak. Bear in mind that per- haps 50% of all marriages and cohabiting relationships that involve children dissolve without dispute over custody or access; and even in cases that involve disputes, the majority — perhaps 60% to 85% — are settled before going to trial and without the need for parenting capacity evaluations (Bow & Quinnell, 2004; Maccoby & Mnookin, 1992). Requests for parenting capacity evaluations are typically triggered by the presence of certain factors, such as allegations that a child was
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76 Civil Forensic Assessment
abused or neglected, allegations that a parent has mental health or sub- stance use problems, or an extreme level of confl ict between parents (Bow & Quinnell, 2004).
Legal Issues
Once a custody and access dispute arises, how do courts in the United States decide the issue? Up until the mid - 1800s, the decision was simple because children were viewed as the property of fathers (Emery et al., 2005), possibly a legacy of the lingering infl uence in British common law of the ancient Roman doctrine of paterfamilias . From the mid - 1800s until the mid - 1900s, this legal tradition was replaced by the “ tender years ” doctrine , which assumed mothers should be granted custody due to their special abilities with respect to rearing young children. But in the early to mid - 1900s, the legal doctrine that emerged and eventually become dominant was the “ best interests of the child ” principle , which is now refl ected in the laws of every jurisdiction in the United States (Emery et al., 2005). According to this principle, legal decisions should try to provide children with childrearing environments that are most likely to ensure optimal development in light of their unique needs and circumstances (Elrod & Spector, 2004; Melton et al., 2007), and espe- cially their psychological needs (Emery et al., 2005). Evaluators need to determine what a child needs to grow and thrive and whether or how the parents, working jointly or individually, can provide it to the child. The specifi c factors considered relevant to custody and access decisions, according to the Uniform Marriage and Divorce Act (1979), include the following: the wishes of the children ’ s parent or parents as to their cus- tody; the wishes of the children regarding their custodian; the interaction and interrelationship of the children and their parent or parents, their sib- lings, and any other person who may signifi cantly affect the children ’ s best interests; the children ’ s adjustment to their home, school, and com- munity; and the mental and physical health of all individuals involved. (This list is quite representative, as many state laws are based at least in part on the Uniform Marriage and Divorce Act.) A more extensive list of specifi c areas addressed in parenting capacity evaluations is presented in Table 3.1 .
The Practice of Parenting Capacity Evaluations
The “ best interests of the child ” principle may sound both simple and sensi- ble, but custody and access evaluators have found it diffi cult to respect it in practice. The very things that make the principle attractive — for example,
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its respect for the diversity and uniqueness of children ’ s needs — also make it diffi cult to conduct evaluations in a systematic, consistent man- ner (Emery et al., 2005). Historically, despite the frequent participation of psychologists and other mental health experts in custody and access mat- ters, courts were often dissatisfi ed with their reports and testimony (Bow & Quinnell, 2004; Melton et al., 2007). A major problem identifi ed with parenting capacity evaluations was the tendency for evaluators to work and advocate for one of the parents, rather than take a neutral and objec- tive stance. Second, evaluators had a tendency to use traditional procedures to assess the mental health of individual parents and children, rather than using specialized procedures to assess the childrens ’ needs and the parents ’ capacity to meet those needs. Third, evaluators did not make specifi c com- ments on or recommendations that would help courts to make decisions regarding custody and access arrangements. And it wasn ’ t only courts that were unhappy with parenting capacity evaluations — parents were unhappy too, leading to frequent complaints to professional licensing or registration bodies. To help improve parenting capacity evaluations, in February 1994 the Council of Representatives of the American Psychological Association adopted practice guidelines drafted by the American Psychological Association ’ s Committee on Professional Practice and Standards with
Table 3.1 Some Specifi c Areas Addressed in Parenting Capacity Evaluations
Parent Child Parent-Child Relationship
Personality Personality Contact and interaction
Intellectual functioning Intellectual functioning Attachment
Childrearing experiences (including maltreatment)
Childrearing experiences (including maltreatment)
Nurturance and support
Relationships with intimate partners
Relationships with siblings Supervision and discipline
Relationships with other family members
Relationships with other family members
Maltreatment
Parenting skills and attitudes Peer relationships
Relationships with peers and others
Educational functioning
Educational functioning Physical health
Occupational functioning Mental health
Physical health Substance use
Mental health Antisocial behavior
Substance use Other special problems/needs
Antisocial behavior
Source: Following Ayoub & Kinscherff (2006) and Sparta & Stahl (2006).
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78 Civil Forensic Assessment
input from its Committee on Children, Youth, and Families. The Guidelines for Child Custody Evaluations in Divorce Proceedings , which were pub- lished later that same year (American Psychological Association, 1994), are summarized in Table 3.2 . Similar guidelines have been published by the Association of Family and Conciliation Courts (1994, 2007) and the American Academy of Child and Adolescent Psychiatry (1997).
It appears that the efforts made by psychologists to improve parenting capacity evaluations in custody and access matters have had a substantial impact on practice. Evidence of this comes from surveys of evaluators undertaken before and after the publication of the American Psychological
Table 3.2 American Psychological Association’s Guidelines for Child Custody Evaluations in Divorce Proceedings
I. Orienting Guidelines: Purpose of a Child Custody Evaluation
1. The primary purpose of the evaluation is to assess the best psychological interests of the child.
2. The child’s interests and well-being are paramount.
3. The focus of the evaluation is on parenting capacity, the psychological and developmental needs of the child, and the resulting fi t.
II. General Guidelines: Preparing for a Child Custody Evaluation
4. The role of the psychologist is that of a professional expert who strives to maintain an objective, impartial stance.
5. The psychologist gains specialized competence.
6. The psychologist is aware of personal and societal biases and engages in nondiscriminatory practice.
7. The psychologist avoids multiple relationships.
III. Procedural Guidelines: Conducting a Child Custody Evaluation
8. The scope of the evaluation is determined by the evaluator, based on the nature of the referral question.
9. The psychologist obtains informed consent from all adult participants and, as appropriate, informs child participants.
10. The psychologist informs participants about the limits of confi dentiality and the disclosure of information.
11. The psychologist uses multiple methods of data gathering.
12. The psychologist neither overinterprets nor inappropriately interprets clinical or assessment data.
13. The psychologist does not give any opinion regarding the psychological functioning of any individual who has not been personally evaluated.
14. Recommendations, if any, are based on what is in the best psychological interests of the child.
15. The psychologist clarifi es fi nancial arrangements.
16. The psychologist maintains written records.
Source: American Psychological Association (1994), Table 3.2.
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Association ’ s Guidelines in 1994. First, the before picture. Keilin and Bloom (1986) analyzed the responses of 82 custody and access evaluators, 78% of whom were psychologists, to an anonymous questionnaire that asked respondents to list the evaluation procedures they used and rank the specifi c factors they considered in terms of importance. Respondents indi- cated that they conducted evaluations as court - appointed experts only about 26% of the time. They spent an average of about 19 hours working on each evaluation. The most common assessment procedure used was interviewing: evaluators reported that they conducted interviews of parents in 100% of cases, and interviews of children in 99% of cases (remember that some children are developmentally incapable of being interviewed). Evaluators administered psychological tests to parents in 76% of cases and to chil- dren in 74% of cases; most were standard tests of intelligence or personal- ity, and none were tests developed specifi cally for use in parenting capacity evaluations. Other assessment procedures included behavioral observations, interviews with collateral informants, and home and school visits. After completing the assessments, the evaluators typically spent about 2.8 hours report writing, 1.4 hours consulting with attorneys, and about 2.3 hours tes- tifying in court.
Now, let ’ s turn to the after picture. Since the publication of the American Psychological Association ’ s Guidelines , there have been several surveys that used methods similar to those of Keilin and Bloom (1986), including: Ackerman and Ackerman (1996, 1997), Bow and Quinnell (2001; see also Quinnell & Bow, 2001), and LaFortune and Carpenter (1998). Some general conclusions can be drawn from the recent surveys about changes in the practice of parenting capacity evaluations:
Evaluators more frequently act in the role of neutral, court - appointed evaluators. Evaluations are taking more time. The average number of hours spent on each case has increased by 10 – 20%, to about 21 – 24 hours. There have been changes in the assessment procedures used by evalu- ators. They still spend considerable time administering psychological tests, but now commonly use tests that were designed specifi cally for use in or are directly relevant to parenting capacity evaluations. (Some examples of such tests are presented in Table 3.3 .) Also, evaluators spend more time reviewing documentary evidence. Evaluators increasingly evaluate or make specifi c recommenda- tions regarding custody and access arrangements in light of a child ’ s needs. (Not surprisingly, the time devoted to writing reports also has increased.)
•
•
•
•
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80 Civil Forensic Assessment
Table 3.3 Examples of Specialized Psychological Tests Developed for Use in Parenting Capacity Evaluations
Test Description
Ackerman-Schoendorf Parent Evaluation of Custody Test (ASPECT; Ackerman & Schoendorf, 1992)
A multi-item rating scale designed to index overall parent- ing capacity. Ratings are made by evaluators on the basis of interview, observation, and psychological testing of parents. Items were selected rationally. Item ratings are combined to yield an overall Parental Custody Index for each parent.
Bricklin Perceptual Scales (BPS; Bricklin, 1990)
A multi-item rating scale designed to tap children’s percep- tions of their parents. Children’s responses to a series of questions related to parental competency, supportiveness, consistency, and character. Items were selected rationally. Item ratings are combined to yield three scores that com- pare perceptions of each parent.
Custody Quotient (CQ; Gordon & Peek, 1988)
A multi-item rating scale designed to index specifi c aspects of parenting capacity. Ratings are made by evaluators on the basis of interview, observation, and review of case history information. Items were selected rationally. Item ratings are combined to yield an overall Custody Quotient for each parents as well as scores on 12 subscales.
Uniform Child Custody Evaluation System (UCCES; Munsinger & Karlson, 1994)
A systematic procedure for conducting parenting capacity evaluations. Materials include 25 forms to assist gather- ing, transcribing, and organizing essential information and assessing response validity. Procedures developed ration- ally (to refl ect legal and clinical considerations). Does not yield quantitative scores.
Despite some apparent improvements, there are still reasons to be con- cerned. One problem is that many parenting capacity evaluations do not pay suffi cient attention to the legal context in which they are conducted. Evaluators too often ignore the need for their assessments to address spe- cifi c legal criteria, set out clear opinions regarding issues relevant to the case at hand, and be structured in specifi c ways. For example, Bow and Quinnell (2004) surveyed 121 judges and attorneys in Michigan who specialized in family law issues. On the positive side, respondents rated the parenting capacity evaluation reports they reviewed as being gen- erally quite useful, and gave high marks to those components of reports related to evaluators ’ discussions of psychological testing results and the psychosocial histories of parents and children. But they gave low marks to evaluators ’ recommendations concerning visitation and other services, comparison of parents with respect to relevant legal criteria, and identifi ca- tion of information that formed the basis for their fi ndings and opinions.
A second problem is that there is little scientifi c support for the relia- bility and validity of psychological tests used so commonly in parenting capacity evaluations. As Emery and colleagues (2005) pointed out, some
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of these tests (e.g., projective tests) are not generally accepted as reliable and valid in any area of psychological practice; other tests (e.g., intelli- gence tests) are generally accepted as reliable and valid in other areas of psychological practice but their relevance to parenting capacity evaluations is often unclear; and yet other tests appear on the surface to be directly relevant to parenting capacity, but either their psychometric properties are unknown or the constructs they measure (e.g., parent alienation syndrome) are themselves unvalidated.
A third problem is that decisions about parenting capacity are value - laden. Which of a child ’ s needs are most important? How are they best met? To what extent should the wishes of the child and parents be respected? Answering these questions requires evaluators to exercise judg- ment. To the extent that evaluators understand and use the values inherent in relevant legal criteria, this is acceptable; but it is unacceptable if evalu- ators fail to make their values explicit, reject the values refl ected in law, or introduce their own personal values in the process. A major challenge fac- ing this area of civil forensic assessment is the development of assessment procedures or decision aids to help evaluators exercise their judgment in a way that will facilitate sound, legal decision making.
CHILD MALTREATMENT
Child maltreatment is the abuse or neglect of children by parents or other people in a position of power, trust, or responsibility. Child abuse is the commission of acts that deliberately or recklessly threaten the safety and well - being of children. Abusive acts often are divided into three catego- ries depending on the nature of the acts and their (potential) consequences (Krug, Dahlberg, Mercy, Zwi, & Lozano, 2002). Physical abuse involves actual, attempted, or threatened injury of a child — basically, causing bodily harm or fear of bodily harm. Sexual abuse involves actual, attempted, or threatened sexual contact that is inappropriate due to the perpetrator ’ s age or relationship to a child. Contact includes physical contact (e.g., touching, assault) and communication, whether coercive and noncoercive. Emotional abuse involves actual, attempted, or threatened psychological or social harm of a child. It includes cruelty and exploitation. Cruelty is the inten- tional infl iction of severe psychological distress (e.g., anxiety, fear, embar- rassment). Exploitation is the use of children for commercial or sexual purposes (e.g., forced labor, military service, or prostitution) in a way that may impair their psychological or social development. In contrast, child neglect is the omission of acts that deliberately or recklessly threaten the safety and well - being of children (Krug et al., 2002). Neglect may involve
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82 Civil Forensic Assessment
failing to provide a child with the necessities of life, such as food, cloth- ing, or medical care, or failing to provide a safe and secure physical envi- ronment for rearing a child.
Although the defi nition of child maltreatment appears to be relatively straightforward, it is infl uenced heavily by cultural considerations. Culture may be defi ned as the sum of work and thought expressed or produced by members of that population, including their social practices, beliefs, institu- tions, and arts (Cross & Markus, 1999; Rogler, 1999). Although culture is a refl ection of people and the collective physical and social environments in which they live, it also exerts a profound infl uence on those same individuals, helping them to defi ne what is normal with respect to attitudes, emotions, and behavior, including childrearing behavior. In general, acts or omissions are considered child maltreatment when they are culturally abnormal or deviant, something that may be referred to as a “ violation of community standards. ” The impact of culture means that it is sometimes diffi cult to distin- guish between harsh discipline and child maltreatment (Krug et al., 2002).
To illustrate the impact of culture on the defi nition of child maltreat- ment, consider the issue of physical or corporal punishment of children. Historically, it was acceptable in many European and North American cul- tures for caregivers — parents and other adults, including teachers — to dis- cipline children by striking them with hands or even objects (e.g., wooden spoons, belts, rulers, or straps). But attitudes toward discipline with physi- cal punishment have changed markedly. It is now unacceptable in some of these same cultures to strike children. For example, in Canada, the Supreme Court in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) (2004) ruled that parents may use mild physi- cal punishment, such as spanking, but its use is severely restricted: only for corrective and educational purposes; never with children under the age of 2; not with teenagers, as it may lead to aggressive or antisocial behav- ior; not with children who are incapable of learning from punishment due to physical or mental disability; never in a way that causes harm or fear of harm (e.g., not with objects such as rulers or belts, not slaps or blows to the head); and not in a way that is psychologically cruel or demeaning. In the same ruling, the Court also held that corporal punish- ment is forbidden in schools. Laws in other countries, such as the United Kingdom and the United States, are somewhat more permissive. For example, at least 1700 police departments in the United States have issued conducted electricity weapons, or Tasers ® , to offi cers patrolling public schools. These weapons are used regularly not just to apprehend children who are breaking the law, but to control children who are simply breaking school rules by being unruly, disruptive or truant, including children as young as 6 years old. (See Box 3.1 for further discussion of cross - cultural differences in childrearing practices.)
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Krug et al. (2002) summarized data from the World Studies of Abuse in the Family Environment (WorldSAFE), a cross-national collaborative study of disci- plinary practices in Chile, Egypt, India (rural regions only), the Philippines, and the United States. The WorldSAFE survey was administered to random samples of mothers in each country. The survey comprised a core set of questions posed to mothers in all countries, as well as additional questions that were asked in only specifi c countries. Mothers were asked to indicate how often they had used various forms of discipline in the previous six months. The table presents some of the fi ndings summarized by Krug et al. (2002).
A Cross-National Comparison of Disciplinary Practices
Box 3.1 The WorldSAFE Study
Selected Disciplinary Practices
Six-Month Incidence (%)
Chile Egypt India Philippines United States
Severe Physical Punishment
Hit the child with an object (not on buttocks)
4 26 36 21 4
Kicked the child 0 2 10 6 0
Burned the child 0 2 1 0 0
Beat the child 0 25 — 3 0
Choked the child 0 1 2 1 0
Moderate Physical Punishment
Hit the child on buttocks with hand
51 29 58 75 47
Hit the child on buttocks with an object
18 28 23 51 21
Slapped the child’s face or head 13 41 58 21 4
Shook the child (older than 2 yrs) 39 59 12 20 9
Pinched the child 3 45 17 60 5
Verbal or Psychological Punishment
Yelled or screamed at the child 84 72 70 82 85
Called the child names 15 44 29 24 17
Cursed at the child 3 51 — 0 24
Refused to speak to the child 17 48 31 15 —
Threatened to kick the child out of the household
5 0 — 26 6
Other Disciplinary Practices
Explained why the behavior was wrong
91 80 94 90 94
Took privileges away 60 27 43 3 77
Told child to stop 88 69 — 91 —
Gave child something to do 71 43 27 66 75
Made child stay in one place 37 50 5 58 75
— = Question not asked in that country.
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84 Civil Forensic Assessment
Scope of the Problem
Regardless of any defi nitional issues, child maltreatment is clearly a major public health concern due to its potentially serious consequences and high prevalence (Krug et al., 2002). The potential consequences of child mal- treatment vary among individuals, depending on the severity and chronic- ity of maltreatment, as well as the age of the child, the child ’ s relationship to the abuser, and response to the child ’ s disclosure of maltreatment, the socioeconomic status of the family, and the social and community support available to the family. The effects include physical injuries ranging from minor bruises and welts to broken bones to severe neurological impairment or death, and psychological injuries range from impaired cognition and academic achievement to mental disorder and increased risk of external- izing behavior such as substance abuse, teenage pregnancy, running away, and criminality; these effects may persist into adulthood, leading to long - term need for and utilization of medical, mental health, social, and legal services (Krug et al., 2002; National Research Council, 1993).
Estimating the prevalence of child maltreatment is diffi cult due not only to defi nitional problems, as discussed previously, but also to the general problem that most incidents of child abuse and neglect, like other crimi- nal behaviors, are not reported to police or other agencies. Looking fi rst at offi cial statistics, the third National Incidence Study of Child Abuse and Neglect (NIS - 3) reported that more than 2.8 million children were victims of maltreatment in 1993 (Sedlak & Broadhurst, 1996). The most recent analysis of the National Child Abuse and Neglect Data System, reported by the U.S. Department of Health and Human Services (2008), estimated that there were about 3.6 million reports and about 905,000 substanti- ated cases of child maltreatment in the 2006 fi scal year. This represents a reporting rate of about 47.8 per 1,000 children per year, and a victimi- zation rate of about 12.1 per 1,000 children. With respect to the type of maltreatment experienced, about 64% of victims experienced neglect, 16% experienced physical abuse, 9% experienced sexual abuse, and 7% experienced psychological abuse; in addition, 15% were recorded as hav- ing experienced “ other ” types of maltreatment. (These fi gures total more than 100% because some children were victims of more than one type of maltreatment.) In 90% of cases, the perpetrators of the abuse of neglect were the children ’ s parents. More than 1,500 children died as a result of maltreatment. Turning next to community surveys, Straus and colleagues (1997) examined child maltreatment in a nationwide study in the United States. They estimated the victimization rate for physical abuse at 49 per 1,000 children per year — more than 10 times higher than the rate estimated from offi cial statistics. Other social surveys have yielded similar fi ndings
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with respect to the underestimate of child maltreatment based on offi cial statistics (e.g., Gallup, 1995). Although this number seems very large, it is only the tip of the iceberg, as annual incidence rates underestimate lifetime risk of child maltreatment. Hussey, Chang, and Kotch (2006) surveyed a nationally representative probability sample of 10,828 high school stu- dents and asked them about child maltreatment victimization experiences perpetrated by parents or other adult caregivers prior to the sixth grade. With respect to child neglect, about 42% of adolescents said they had been negligently supervised on at least one occasion, and about 12% said their basic physical needs had been neglected on at least one occasion. With respect to child abuse, about 28% of adolescents said they had been physi- cally assaulted on at least one occasion and about 5% said they had been sexually assaulted on at least one occasion.
One reason why it is so diffi cult to determine the rate of child maltreat- ment precisely is that the rate changes over time. For example, accord- ing to Jones, Finkelhor, and Halter (2006), the rate of substantiated cases increased in the 1980s and early 1990s, peaking in about 1992; since then, there has been a marked decline in the rates of physical and sexual abuse, down about 36% and 47%, respectively, between 1992 and 2003, and a small decline in the rate of neglect, down only about 7% during the same period. The reasons for the fl uctuation are not entirely clear. It is likely that the rise through 1993 was more apparent than real; a refl ection of more reports of maltreatment, rather than more incidents. The increased report- ing may have been stimulated by changes in public attitudes toward mal- treatment resulting from public education campaigns. But assuming that public attitudes have not grown more tolerant of child maltreatment since 1993, the drop in rates probably refl ects a true decrease in maltreatment. A true decrease could be due to various factors, including positive changes in prevention and response at the community level (Jones et al., 2006).
The negative consequences and high prevalence of child maltreatment combine to create staggering economic consequences. At the national level, a study conducted by Prevent Child Abuse America in 2001 estimated the direct and indirect costs stemming from child maltreatment at $ 258 mil- lion per day, or more than $ 90 billion dollars per year (Fromm, 2001). At the state level, recent research in Colorado is a good example (Gould & O ’ Brien, 1995). They estimated the costs of child protection investiga- tions, child welfare services, and out - of - home placements at $ 190 million per year; furthermore, they estimated the cost of programs and services required to deal with the long - term negative consequences of child mal- treatment (special education, youth institutional and community programs, mental health programs, substance abuse programs, etc.) at an additional
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86 Civil Forensic Assessment
$ 212 million per year. Other countries have reported similar fi ndings. For example, in Canada, Bowlus, McKenna, Day, and Wright (2003) estimated the total direct and indirect costs associated with the 135,500 child mal- treatment cases investigated in 1998 to be more than $ 15 billion.
The Role of Psychology in Child Protection
Governments have a mandate to protect children from harm not only to respond decisively to child maltreatment, but also to prevent it. This man- date is enshrined in legislation throughout the United States.
Perhaps the strongest support for governments ’ mandate with respect to child maltreatment comes from the United Nations Convention on the Rights of the Child (UNCRC; United Nations, 1989). The UNCRC is a statement of the civil, political, economic, social, and cultural rights of children. It follows in the footsteps of previous international agreements, including the World Child Welfare Charter, endorsed by the General Assembly of the League of Nations (the forerunner to the United Nations) in 1924, and the Declaration of the Rights of the Child, adopted by the General Assembly of the United Nations in 1959. According to Article 19 of the UNCRC:
1. Parties shall take all appropriate legislative, administrative, social and edu- cational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective pro- cedures for the establishment of social programmes to provide neces- sary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identifi cation, report- ing, referral, investigation, treatment and follow - up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
Articles 32 to 36 prohibit other forms of maltreatment, including exploi- tation, and Article 39 sets out the responsibility for governments to provide appropriate services to promote physical and psychological recovery and social reintegration of victims of child maltreatment.
The UNCRC was adopted by the General Assembly of the United Nations in 1989. It is a legally binding instrument: Member nations that ratify the UNCRC are bound to it by international law, and compliance is monitored by the United Nations Committee on the Rights of the Child.
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As of 2009, 193 countries have ratifi ed the UNCRC. The United States was a signatory to the UNCRC in 1995 but did not ratify it; this makes the United States one of only two member nations (the other being Somalia), and the only member nation with an operating government, that has not ratifi ed the convention.
Despite the federal government ’ s hesitation, the American Psychological Association has endorsed the UNCRC. In 2001, the American Psycho- logical Association ’ s Council of Representatives approved a strongly worded resolution that declared the development of a national strategy for the protection of children to be “ a matter of the highest urgency, ” affi rmed its intent to adopt both the spirit and the principles of the convention in the American Psychological Association ’ s own activities, and urged all levels of government in the United States to do the same (American Psychological Association, 2001). Based on the American Psychological Association resolution, one can identify several ways in which practice of psychology is relevant to the issue of child protection. First, psycholo- gists have a general ethical duty to promote the adjustment of children (and other people) and protect them from harm, as well as a legal mandate to report suspected child maltreatment to the proper authorities. Second, psy- chological theory and research can further our understanding of children ’ s well - being and sense of dignity, both their nature and the conditions neces- sary for their development, a central focus of the UNCRC. Third, psychol- ogy can assist the development and evaluation of such services designed to prevent and respond to child maltreatment. Fourth, psychological research can assist in the development and evaluation of more general public policy concerning child maltreatment.
Assessing Risk for Child Maltreatment
One area in which psychologists contribute to child protection is with respect to the assessment of risk for child maltreatment. Once a report of maltreatment is made to police or child protective services, it must be investigated to determine whether it can be substantiated and if there is any risk for future maltreatment. Prevention of maltreatment requires courts, tribunals, or other decision makers to reach an opinion — based on the fi nd- ings of a risk assessment — regarding what has happened in the past, which types of harm the child faces and in which kinds of situations, and what interventions should be implemented to ensure the health and safety of the child. The plans for intervention need to specify which services should be delivered, and at what level of intensity or intrusiveness. A child who is at lower risk for maltreatment (i.e., a case in which the risk of serious abuse or neglect seems remote or unlikely) may be protected with interventions
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88 Civil Forensic Assessment
such as childrearing skills and anger management training for parents, fi nancial aid or employment counseling for parents, assistance with hous- ing needs for the family, regular home visits by child protective service workers to support the parents and monitor the child ’ s adjustment, or coun- seling health care for the child. This is what happens in the vast majority of cases. But, in a relatively small proportion of cases, the fi ndings of the risk assessment may suggest that the child is at high risk for abuse or neglect, and the evaluator may recommend extreme protective measures, up to and including apprehension of the child. Apprehension may result in temporary or even permanent suspension of parental rights and placement of the child in alternative residential care (e.g., under the supervision of other family members or guardians, in a foster home).
A child maltreatment risk assessment is similar to a parenting capacity evaluation in some important respects. One critical aspect of a risk assess- ment is to determine the unique needs of the child and whether the parents are able, either on their own or with assistance, to meet those needs. But a risk assessment also needs to consider factors that are associated, according to theory and research, with perpetration of child abuse and neglect. There is general consensus in the fi eld that the risk assessment process should be structured to ensure critical risk factors and potential targets for interven- tion are considered systematically across cases (English & Pecora, 1994). The American Psychological Association ’ s Committee on Professional Practice and Standards (1998) developed guidelines for conducting evalua- tions concerning child maltreatment, similar to those it developed for con- ducting custody and access evaluations; these are summarized in Table 3.4 .
Despite consensus about the need for structure, there is considerable controversy concerning the adequacy of risk assessment instruments. There has been a proliferation of instruments used by agencies in vari- ous jurisdictions, yet none of the instruments is generally accepted or well validated. Some instruments were developed and implemented without adequate research; others are simply modifi cations of existing instruments, made without solid theoretical or research basis; and still others are used for purposes or with groups for which they were not intended and have not been validated (e.g., Stowman & Donohue, 2004).
An example of a structured approach to child maltreatment risk assess- ment is Child Abuse Potential or CAP Inventory (Milner, 2006). The CAP Inventory is a 160 - item self - report questionnaire designed to screen parents for risk of child abuse. It is used commonly in parenting capacity evaluations, in both custody and access and child protection contexts. The items in the CAP Inventory were selected on rational or empirical grounds: rational, if they refl ected potential causal risk factors for child abuse according to theory and research; and empirical, if they were shown to
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Table 3.4 American Psychological Association’s Guidelines for Psychological Evaluations in Child Protection Matters
I. Orienting Guidelines 1. The primary purpose of the evaluation is to provide relevant, professionally sound results or opinions, in matters where a child’s health and welfare may have been and/or may in the future be harmed.
2. In child protection cases, the child’s interest and well- being are paramount.
3. The evaluation addresses the particular psychological and developmental needs of the child and/or parent(s) that are relevant to child protection issues such as physical abuse, sexual abuse, neglect, and/or serious emotional harm.
II. General Guidelines: Preparing for a Child Protection Evaluation
4. The role of psychologists conducting evaluations is that of professional expert who strives to maintain an unbiased, objective stance.
5. The serious consequences of psychological assessment in child protection matters place a heavy burden on psychologists.
6. Psychologists gain specialized competence.
7. Psychologists are aware of personal and societal biases and engage in nondiscriminatory practice.
8. Psychologists avoid multiple relationships.
III. Procedural Guidelines: Conducting a Psychological Evaluation in Child Protection Matters
9. Based on the nature of the referral questions, the scope of the evaluation is determined by the evaluator.
10. Psychologists performing psychological evaluations in child protection matters obtain appropriate informed con- sent from all adult participants, and as appropriate, inform the child participant; psychologists need to be particularly sensitive to informed consent issues.
11. Psychologists inform participants about the disclosure of information and the limits of confi dentiality.
12. Psychologists use multiple methods of data gathering.
13. Psychologists neither overinterpret nor inappropriately interpret clinical or assessment data.
14. Psychologists conducting a psychological evaluation in child protection matters provide an opinion regarding the psychological functioning of an individual only after con- ducting an evaluation of the individual adequate to support their statements or conclusions.
15. Recommendations, if offered, are based on whether the child’s health and welfare have been and/or may be seri- ously harmed.
16. Psychologists clarify fi nancial arrangements.
17. Psychologists maintain appropriate records.
Source: American Psychological Association Committee on Professional Practice and Standards (1998).
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90 Civil Forensic Assessment
discriminate between known groups of abusive and nonabusive parents in construction research. Parents complete the CAP Inventory by responding agree or disagree to a series of statements. Item ratings are combined to yield scores on 12 scales. One scale refl ects risk for physical abuse. Eight scales refl ect parent and family characteristics (distress, rigidity, unhappi- ness, problems with child and self, problems with family, problems with others, ego strength, and loneliness). Three scales refl ect response distor- tion (lying, inconsistent responding, and random responding).
Research on the CAP Inventory has focused primarily on the physical abuse scale (Milner, 2008). In general, this scale appears to have adequate internal consistency and short - term test - retest reliabilities. Predictive validity research is diffi cult to conduct, because intervention is expected to attenuate the association between risk and subsequent maltreatment. (Hopefully, our interventions reduce risk.) There have been a few pro- spective studies in which the CAP Inventory physical abuse scale (or an abbreviated version of it) was administered to parents and correlated with subsequent physical health and psychological adjustment problems, some of which may have been due to child maltreatment. Other forms of valid- ity research are much easier to conduct. Numerous studies have found that parents ’ scores on the physical abuse scale of the CAP Inventory are asso- ciated with a wide range of child and family problems.
But the CAP Inventory also has some important limitations. First, it focuses on general physical abuse. It is questionable whether it is relevant to sexual abuse, emotional abuse, and neglect, let alone more specifi c forms of maltreatment (e.g., exposing a child to dangerous chemicals by oper- ating a drug lab in the family home). Second, there has been no research examining potential bias (i.e., lack of structural or metric equivalence) in the CAP Inventory scores across group factors such as gender, age, and eth- nicity. It is uncertain, for example, if the CAP Inventory is equally useful for mothers versus fathers, younger versus older parents, or cultural major- ity versus minority families. Third, even focusing on the primary use of the CAP Inventory, there is no research that clearly demonstrates its ability to predict future physical abuse of children. For these reasons, psychologists (as well as others working in the fi eld of child maltreatment) continue to develop and evaluate risk assessment instruments.
SUMMARY
Civil forensic assessment is actually a much broader and more diverse area of psychological practice than is criminal forensic assessment, because civil law regulates virtually every aspect of daily life. Psychologists
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conduct evaluations with respect to matters such as families, work, and health care. We focused in this chapter on three specifi c issues: civil com- mitment, parenting capacity, and child maltreatment. Although the legal questions that psychologists must try to answer in these areas are very dif- ferent, a common theme is evident: A variety of assessment procedures have been developed in an effort to make sure psychological evaluations gather information that is scientifi cally reliable and legally relevant. As our modern societies become increasingly complex and litigious, no doubt the call for civil forensic assessment will continue to grow.
Key Terms 91
SUGGESTED READINGS
American Psychological Association. (1994). Guidelines for child custody evalu- ations in divorce proceedings. American Psychologist, 49 , 677 – 682.
American Psychological Association Committee on Professional Practice and Standards. (1998). Guidelines for psychological evaluations in child protec- tion matters . Washington, DC: American Psychological Association.
Jackson, R. L., & Richards, H. J. (2008). Civil commitment evaluations. In R. L. Jackson (Ed.), Learning forensic assessment (pp. 183 – 209). New York: Routledge.
Strachan, E. (2008). Evaluations for the civil commitment of sex offenders. In R. L. Jackson (Ed.), Learning forensic assessment (pp. 509 – 537). New York: Routledge.
U.S. Department of Health and Human Services, Administration on Children, Youth and Families. (2008). Child Maltreatment 2006 . Washington, DC: Author. Available at: http://www.acf.hhs.gov/programs/cb/pubs/cm06.
KEY TERMS
Actuarial instruments “ Best interests of the child ” principle CAP Inventory Causal nexus Child abuse Child maltreatment Child neglect Civil commitment Civil forensic assessment Civil law
• • • • • • • • • •
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92 Civil Forensic Assessment
COVR Criminal commitment Custody or access disputes Due process protections Guidelines for Child Custody Evaluations in Divorce Proceedings HCR - 20 Least restrictive alternative principle Parens patriae powers Parenting capacity evaluations Police powers Sexually violent predator laws STATIC - 99 Structured professional judgment (SPJ) SVR - 20 “ Tender years ” doctrine United Nations Convention on the Rights of the Child
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