Copyright 2005 ZERO TO THREE. To obtain permission to reproduce this article, please e-mail [email protected].

FORCED SEPARATIONS AND FORCED REUNIONS IN THE 1 FOSTER CARE SYSTEM

CONSTANCE M. LILLAS
Director of the Interdisciplinary Training Institute, LLC Los Angeles, California

LESTER LANGER
Circuit Judge, Miami-Dade County, Florida, Juvenile Division

MONICA DRINANE
Interim Civil Court Judge, Bronx Family Court Bronx, New York

his countrys juvenile court system was created more than 100 years ago on the premise that children have legal rights and should be treated in a humane fashion. Since then, juvenile court functioning has evolved to focus on the individual needs of children and families by acting in the best interests of the child. Now, lawyers and judges must not only use their legal expertise to settle cases, but must also be knowledgeable in childrens cognitive, social, and emotional development; the impact of the early environment on brain development; alcohol and substance abuse; mental health and mental illness; and the impact of family violence on children and families. The authors of this article, representing three different disciplines, use the example of a child named Tammy to illustrate different points of view regarding collaboration and potential conflict between the professionals working in the best interests of the child. Tammy is a 3-year-old girl who, in her short lifetime, has been abandoned twice by her biological mother, a heroin addict. After the second abandonment, at 22 months of age,
1 This article is adapted, with permission, from the authors more extensive paper Addressing Infant and Toddler Issues in the Juvenile Court: Challenges for the 21st Century published in the Spring 2004 issue (Volume 55) of the Juvenile and Family Court Journal.

Tammy was placed in a foster home. She was withdrawn and her only display of emotion was to laugh when someone was hurt. She was clumsy, could not talk or use gestures to communicate, had no problem-solving skills, and could not do any pretend play. The foster mother, guided by an infant mental health therapist, pursued a variety of services, including occupational and physical therapy, speech and language therapy, and developmental play therapy. In time, the foster mother fell in love with Tammy, and Tammy began to recover and thrive. After Tammy had been in her care for 10 months, the foster mother began the process of adopting Tammy. At this point, Tammys biological mother reentered her life.

at a glance
The juvenile court system has undergone tremendous changes over the past century, but much still needs to change in order to fully meet the complex needs of very young children. Professionals need to consider the emotional needs of infants and toddlers, and be willing to step outside the bounds of their own discipline to develop a deeper understanding of how to best serve children through the courts.

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Tammys mother was in a drug rehabilitation center and requested activation of the reunification process. The court approved reunification visits at the fosteradoption agency, with a social worker present to monitor the visits. The foster mother feared she would lose her chance to adopt Tammy. During her biological mothers first visit, Tammy was disoriented, clung to her foster mother, and intermittently walked toward her biological mother, who was crying and reaching for her with outstretched arms. When Tammy rejected the embrace, her biological mother became further distressed. By the end of the visit, eyes glazed, Tammy walked in a daze. She then collapsed in the car and immediately fell asleep. Tammys behavior prompted the foster mother to seek guidance from an infant mental health specialist. Immediately after the first visit with her mother, Tammys experienced a sharp decrease in her appetite, became aggressive with the family cat, and bit her foster mother. She began to have rages, which included turning over furniture, spitting on and hitting the foster mother, and screaming at the top of her lungs. During subsequent visits, Tammy exhibited the following symptoms: calling her biological mother the booboo woman and making hissing sounds that were identified as sounds of fear; vomiting in the therapists office when asked about the booboo woman; severely biting the foster mother; and walking around in an aimless, disoriented manner. Following one visit with her biological mother, Tammy required overnight hospitalization for a severe asthmatic attack. Soon, Tammy began waking up throughout the night, screaming and crying with inconsolable terror from nightmares she could not articulate. Her rages increased in intensity and severity toward bedtime; she refused to sleep and often tried to run out of the apartment. Overwhelmed, the foster mother considered having Tammy removed from her home. Different Disciplines, Different Roles, Different Biases A lawyer, a judge, and a child development specialist may all understand Tammy in a different way and may have different goals, skills, and resources to help meet her needs. Each professional must look beyond the traditional bounds of their discipline to fully appreciate the importance of collaboration in the complex system of child welfare services.

PHOTO: FAITH BOWLUS

The Role of the Childs Attorney

Lawyers for very young children in child protective proceedings are charged with advocating for what is in the childs best interests. To do this well, lawyers must recognize that every child has individual needs, and provide legal representation that reflects those unique needs and circumstances. The Adoption and Safe Families Act (ASFA; 1997) requires courts to hold permanency hearings in cases such as Tammys within a strict timeframe of 12 months after removal from the childs home. ASFA emphasizes the need for timely permanency planning because stability is critical

to a childs well-being. The challenge for Tammys lawyer is two-fold: to assess whether her mother is able to adequately care for her child; and to assess Tammys needs to determine what would be in her best interests. Often, lawyers and social workers are simultaneously investigating whether or not the parent has been neglectful, and determining what reasonable efforts should be made to either reunite the child with the parent or pursue adoption. In this case, Tammys attorney advocated that the court obtain a comprehensive assessment of Tammys needs before making a final determination on reunification. In most courts, where infant mental health expertise is limited, the attorney would need to request an outside evaluation by an infant mental health expert. Tammys lawyer wanted an assessment by a specialist who understands posttraumatic stress disorders in very young children. Tammys lawyer had to work with both the childs therapist and the social worker assigned to the case from Department of Child and Protective Services to help determine Tammys best interests. He organized a meeting with all parties involved to identify responsibilities and establish clearer communication about the issues. Sometimes professionals from outside the legal system can help to forge an out-of-court settlement (e.g., by facilitating family group decision making or mediation) that more effectively addresses the needs and rights of all parties. Although written material on child development can help an attorney, a consultation with a professional who

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cal parent and other caring adults, usually extended family, collaboratively raise the children, providing an extended network of emotional support. The childs attorney must carefully consider all the options that are available to support the reunification of the child and parent before deciding to terminate parental rights. The childs lawyer should also learn as much as possible about the biological mother by collaborating with her attorney. If the childs attorney values the parent as an important informational source regarding his or her child, it is likely to lessen the adversarial nature of the proceedings and can potentially engage everyone involved to craft the best resolution for a young child.

The Role of an Infant Mental Health Specialist

Infant mental health specialists are relatively new to the broader field of mental health. They assess and treat very young children by focusing on the relationships between children and their significant caregivers, rather than seeing only the mother or child on an individual basis. Many court systems and child welfare agencies may be unaware of the infant mental health specialty. Practitioners of this specialty should be distinguished from psychologists, psychiatrists, and other licensed professionals designated as mental health experts or forensic specialists (see sidebar for on-line resources for information about infant mental health training programs) because of their specific expertise in working with very young children and their families.

PHOTO: MARILYN NOLT

has specific expertise with young children is more useful. The attorney may want to explore with experts a nontraditional alternative, such as a shared parenting model, which is common in other cultures. In this situation, the biologi-

ONLINE RESOURCES
www.futureunlimited.org Go to the Reference Library section for downloadable information regarding infant mental health and dependency court. www.Miamidcip.org Go to the Resource Library section for downloadable information regarding maltreated children and dependency court. www.zerotothree.org/imh Click on resources and then training for a listing of mental health training sites across the country. www.Miamisafestart.org Go to this site to see how specific protocols are enforced in one Miami courtroom to screen for biological parents who show the capacity for making use of intervention and therapeutic dyadic reunification services. www.ahomewithin.org Go to this site to view a national organization of licensed, very experienced private practice clinicians who offer long-term, weekly, pro bono psychotherapy to children and youth in foster care. The goal is to have such dedicated services organized within 50 major cities across the country. www.nycourts.gov/ip/justiceforchildren Go to this site to learn about the Babies Cant Wait project, an innovation to enhance the prospects for healthy development and permanency of infants in foster care developed by the Permanent Judicial Commission on Children chaired by New Yorks Chief Judge Kaye. Contact Dorothy Henderson at [email protected] to find out about training for raising awareness in the judiciary and child welfare systems about the importance of early relationship development and how separations, loss, and multiple placements negatively impact the lives of young children in New York City. Contact Connie Lillas at infantmentalhealth@earthlink. net to find out about interdisciplinary training across systems of care (Department of Mental Health, Department of Child and Protective Services, Regional Centers, etc.) and across disciplines for foster care training of professionals in Los Angeles County.

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The infant mental health specialist involved in Tammys case used a number of guiding principles (see box below) to understand Tammys behavior and needs. Using these principles, the infant mental health specialist interpreted Tammys behavior with her foster parent and biological mother in the following manner: Over the last 10 months, Tammy experienced a remarkable recovery while in the care of her foster mother. Tammy made a significant shift in nonverbal and bodily changes, such as establishing eye contact, smiling, babbling and talking, developing coordinated motor skills, and showing regularity in her eating, elimination, and sleeping patterns. The infant mental health specialist viewed her ability to engage with others and self-regulate as signs that Tammy felt safe in the care of her foster mother. Tammy demonstrated significant distress during and after visits with her biological mother. Sleeping and eating disruptions, as well as more severe disruptions such as throwing up, defecating, or urinating, are common signs of distress. These behaviors usually indicate an intense source of real or perceived threat to the child. Moreover, Tammys behavior appeared to deteriorate with repeated visits with her biological mother, with increased intensity in Tammys anger, anxiety, and aggressive behavior. When infants and very young children are left in chronic states of distress, threat, or neglect, their ability to grow and develop is compromised across all domainssocial, sensory, motor, affective, speech and language, and cognitive. Tammy arrived at her foster home with significant delays in most areas; however, she began to thrive with early intervention and an engaging caregiver. Given the severity of Tammys stress signals with her biological mother, reunification of the pair would likely keep Tammy in chronic states

of distress, undermining her development and replicating her previous developmental delays. The infant mental health therapist recommended the court at least temporarily halt visits with her biological mother until further evaluation of the situation. Falling in love with her foster mother has given Tammy the knowledge of what it is like to be cared by and to care for others. In turn, this security has given her the motivation to explore the world and master new skills. The infant mental health specialist advocated for the foster mother to receive additional support to help her cope with Tammys challenging behavior so that Tammy did not risk another significant loss by being removed from this foster home.

The Role of the Judge

Historically, the judge hearing a child abuse case in a juvenile court had the responsibility to determine the facts of the case, to ensure the childs protection, and to ensure that the parents rights were respected. The judges role has become increasingly more complex as advances in the science of early childhood development have created a greater understanding of the needs of very young children. Beginning in the early 1970s, juvenile court judges had to consider whether the child should be placed in foster care or remain at home under agency supervision, and ensure that the child was placed in a legally permanent and stable home. At that time, many children drifted through foster care with little attention paid to their long-term placement. This changed with the passage of the Adoption Assistance and Child Welfare Act (1980), when states began to pass measures supporting the concept of permanency planning. States were required to make concerted efforts to achieve permanent homes for foster children. However, the emphasis was on family reunification, and these family-focused plans were not as successful as had

GUIDING PRINCIPLES FOR UNDERSTANDING INFANT WELL-BEING

Principle #1: The infants first and only language for communication begins with nonverbal signs and symptoms; therefore, infant stress responses as well as conditions of well-being and safety are communicated and observable through bodily signals. Principle #2: Signs of distress and threat may be expressed with subtle, moderate, or severe forms of communication. The nervous system organizes stress signals in one or more of three affective avenues, along a hyperaroused to hypoaroused continuum, expressed as anger, anxiety, and withdrawal (Als, 1982; Barnard, 1999; Lawhon, 1986; Lillas, 2000). Principle #3: A common myth is that infants and young children have no memory because they cannot speak. It is now commonly accepted that infants and young children may have the capacity to retain implicit and preverbal memories (Gaensbauer, 2004; Schore, 1994; Siegel, 1999.) Principle #4: Stable self-regulation is the foundation for all socio-emotional relationships as well as for the capacity to learn. Principle #5: Emotional care within a stable, longterm, and continuous relationship is a fundamental need of children.

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been hoped. Consequently, the ASFA (1997) recognized mother, Tammy had regressed to the point that her physithat child safety and health are paramount and directed cal and emotional well-being were harmed. The likelihood states to stop pursuing reunification of the family at all of the biological mother becoming an adequate parent was costs. Now, part of the judges role is to achieve a timely, remote. The law demands that judges hold Tammys best safe, permanent home for children; to address their special interests as paramount and in this case she terminated the needs while in foster care; and to provide procedural promothers visitations and ordered that Tammy immediately tections for all parties. receive all services necessary to stabilize her in the care of Under ASFA, parents have just 12 months to set and her foster parents. Based upon the mothers long history of accomplish the goals in their case abuse and abandonment, the judge plan and have the child returned; ordered the department to begin to if they fail to do so, the state must terminate her parental rights, ultiTodays lawyers and judges must move toward terminating parental mately reducing any further not only use their legal expertise rights. The judge is required to trauma to Tammy. to settle cases, but must also be consider all of these matters and knowledgeable about the many must oversee the progress of the Points of factors that influence childrens case to make sure that all parties Convergence and cognitive, social, and emotional are participating faithfully in a Divergence development. plan that has been approved by the The lawyer, judge, and infant court. Advances in developmental mental health specialist in science and infant mental health practice can help judges Tammys case are all working to help identify and meet her become familiar with and understand young childrens needs. However, the different responsibilities and limitadevelopmental needs. Judges also must be attuned and sentions of each discipline can create conflict. For example, sitive to the nonverbal language of the interactions divergence often occurs between young childrens fundabetween child and parent (or guardian or caretaker) during mental needs and the structure of the legal system. A proceedings because it may help the judge to formulate an childs fundamental needs for love and safety can conflict appropriate decision and monitor the familys case plan. with: (1) the legal rights of biological parents, (2) court The judge is faced with many conflicting issues. First time frames, (3) the length of time it may take a biological and foremost is identifying the best interests of the child. parent to secure sobriety and emotional stability, (4) the The answer clearly varies depending on the individual availability of services to treat children together with child, and will be influenced by factors such as the number either biological or foster parents, (5) a childs stress of children in the household; issues of paternity; whether responses stemming from memories associated with the the child was neglected, abandoned, or abused; and drug biological parents abuse or neglect, and (6) the capacity of addiction, domestic violence, or criminal behavior in the foster care to offer open adoptions. biological parents household. The judge must also consider The longer the infant or child has been cared for in a siblings, relatives, placement in foster care, the childs age, safe, nurturing relationship, the more compelling the reawhether the child has disabilities, and the concerns of the sons would have to be to remove him or her from a positive childs and parents attorneys. environment (whoever is the caregiver) to return to In Tammys case, the judge listened to the caseworker another caregiver; to do so would undermine the infants about the biological parents well-being and progress; lisrights to security, self-esteem, and the capacity for intimacy. tened to the biological parents attorney, who provided a From this perspective, the psychological parent is the real favorable appraisal of the biological parent; and then heard parent (Brazelton & Greenspan, 2000, p. 32) and the most the foster mother explain that the biological mothers visits nurturing relationship should take priority. Although this were harming Tammys development, that Tammy was seeposition can be supported under ASFA, it radically departs ing an infant mental health specialist for counseling, and from how the legal system currently makes placement decithat she herself was extremely upset and overwhelmed. sions. Traditionally, the biological parents rights to the Next, the judge listened to the childs advocate, the attorreturn of the child have taken priority and placement deciney for the Department of Children and Families, and sions have favored returning the child to their biological Tammys therapists. parents. Unfortunately, infant mental health issues, such as Because of these differing perspectives and opinions, attachment and bonding, self-regulation, or other developthe judge sought an independent evaluation of the situamental milestones are often not taken into consideration by tion by a court-appointed infant mental health specialist the court. Another area of contention in the juvenile court who observed the biological mothers visits with the child. system is the issue of open adoptions. An open adoption At the next hearing, the judge considered the additional provides an opportunity for both the adoptive and the bioinformation and felt that Tammy was in a very serious and logical parents to be involved in the childs life. The potentially dangerous situation. Abandoned twice by her arrangement must be considered in light of the specifics of
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each case and may not be appropriate, for example, if it abuse. For example, Tammys escalated behaviors may have causes distress for the child. In Tammys case, where she resulted in poor impulse control, low frustration tolerance, was clearly confused and upset by the forced reunions with and decreased empathyall hallmarks of significant emoher mother, an open adoption would not be recommended. tional disturbance often exhibited by maltreated and disIn other cases, it might be beneficial for a child to maintain turbed children (Lederman, Osofsky, & Katz, 2001; Malik, a relationship with a biological parent who can no longer Lederman, Crowson, & Osofsky, 2002). Without stopping be the childs legal guardian but who may continue to be a the visitations with her biological mother and re-establishing part of that childs life. This type of arrangement would safety within the foster care home, Tammy was on her require careful planning and moniway to either a forced traumatic toring to ensure that the child was reunification or to become a lost able to develop healthy and approchild in the foster care circuit The longer an infant or child has priate attachments to all of the sigbeen cared for in a safe, nurturing through a potential series of nificant adults in his life. forced separations. relationship, the more compelling Another area where infant the reasons would have to be to mental health specialists and judiConclusions and remove him or her from a positive cial practices may differ is in the Implications for environment; to do so would amount of support made available Practice and Policy undermine the infants rights to to foster parents once the court has We need to consider both security, self-esteem, and the set the goal of reunification. short and long term solutions to capacity for intimacy. Courts may be reluctant to provide the current challenges in the child additional services to foster parents welfare system. The following are because of the economic impact on the state. However, if recommendations for best practice and policy changes: reunification with the birth mother is the case plan, then the foster parents should be supported so that they can 1. All children entering the foster-care system must maintain their emotional bond with the child in a long receive an individualized and thorough developmental term, open-ended relationship. Yet, it is common for foster assessment across physical, emotional, speech and lanparents to be advised to remain neutral in their approach guage, sensory, motor, and cognitive systems, optimally to their foster child. This is problematic because it is not in conducted with an interdisciplinary team approach. the best interests of the infant, whose future emotional 2. The level of care a foster child will need should capacities are dependent upon having a close, loving relamatch the emotional capacity of the foster parent to tionship with a primary caregiver. Even with ASFAs accompany the child to services, as well as actively shortened timeframe for permanency planning, 12 months participate in the service delivery by providing high is too long for an infant to wait for a loving, stable home. quality emotional care. Second, for the infant to be deeply loved, the foster parents 3. Selection of foster parents should include evaluating must participate in this falling in love process rather then applicants capacity for providing emotional nurtuwithhold their emotions. Even when advised by practirance to a child who will probably experience one or tioners to stay neutral, many foster parents cannot always more stress responses, making it difficult to fall in remain so. Without support for both foster and biological love with the child without special professional help. parents during the reunification process, it is easy for rival4. Emotional milestones can be used to assess the wellries, envy, and destructive urges to flare, throwing the child being of infants, toddlers, and adults. into the middle. Furthermore, therapeutic services should 5 Safety, threat, permanency, and well-being are interbe provided to help the biological parent and child overrelated conditions that cannot be isolated into differcome the trauma from their past relationship as they ent domains. engage in a reunification process. However, depending on 6. A shift in priority from custodial care to emotional care the degree of rupture between the biological parent and requires that childrens rights be extended to include child, this type of intervention is not always available or their right to, and fundamental need for, a primary, staadequate. ble, nurturing caregiver in their life for the long term. These kinds of supportive interventions for foster fami7. Coordination, cooperation, and collaboration among lies, biological parents, and traumatized children represent a all systems of care that interface with infants and change in the way the judicial system handles cases of child toddlers from birth to 5 years old are needed so that maltreatment. Although such a shift presents a complex common understanding and principles are developed challenge for the court, the benefits are significant and over time. long-lasting. Intervention now may even prevent abused 8. Mandatory training needs to be provided to all levels children from suffering the severe emotional and behavioral of judicial, legal, social work, and service providers problems later in life that have been associated with child within the dependency system.
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Exactly how we can integrate these principles and approaches into our legal system is worth further exploration. We need to think outside of the box and question whether the current laws are sufficient to address the needs of vulnerable young children and their families. Our ability to adequately meet Tammys needs depends on our ability to change the legal process by incorporating new knowledge about early childhood development. Unless we take the time to develop this deeper understanding, our assessments of what is best for our youngest clients will tend to remain vulnerable to our own biasesabout childrens and parents rights, about what makes a family, or about who can parentand we fail, with potentially devastating consequences, in our mission to understand the best interests of the child. A
REFERENCES Adoption and Safe Families Act, 42 USC 620, et seq. (1997). Adoption Assistance and Child Welfare Act 42 USC 670, et seq. (1980). Als, H. (1982). Toward a synactive theory of development: Promise for the assessment and support of infant individuality. Infant Mental Health Journal, 3(4), 229243.

Barnard, K. E. (1999). Beginning rhythms: The emerging process of sleep wake behavior and self regulation. Seattle: NCAST, University of Washington. Brazelton, T. B., & Greenspan, S. I. (2000). The irreducible needs of children. New York: Perseus. Gaensbauer (2004). Telling their stories: Representation and reenactment of traumatic experiences occurring in the first year of life, Zero To Three, 24 (3), 2531. Lawhon, G. (1986). Management of stress in premature infants. In D. J. Angelini, C. M. Whelan Knapp, & R. M. Gibes (Eds.), Perinatal/neonatal nursing: A clinical handbook (pp. 319328). Boston: Blackwell Scientific Publications. Lederman, C., Osofsky, J., & Katz, L. (2001). When the bough breaks the cradle will fall: Promoting the health and well being of infants and toddlers in juvenile court. Juvenile and Family Court Journal, 52(4), 3338. Lillas, C. (2000). Applying psychoneurobiological principles to psychoanalysis. PsychologistPsychoanalyst, 20(3), 2122, (Division 39 of the American Psychological Association). Lillas, C. M., Langer, L., & Drinane, M. (2004). Addressing infant and toddler issues in the juvenile court: Challenges for the 21st century. Journal and Family Court Journal 55, (2) 8196. Malik, N., Lederman, C., Crowson, M., & Osofsky, J. (2002). Evaluating maltreated infants, toddlers, and preschoolers in dependency court. Infant Mental Health Journal, 23(5), 576592. Schore, A. N. (1994). Affect regulation and the origin of the self. Hillsdale, NJ: Lawrence Erlbaum. Siegel, D. (1999). The Developing Mind. New York: Guilford Press.

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