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January 01, 2005

Assessing Developmental Level When Representing Foster Care Children

by Sharon Jackson Witkin

Attorneys working with foster care children in underfunded juvenile justice systems are all too frequently required to represent children with whom they have not had adequate opportunity to develop a relationship. Under such adverse circumstances, how can lawyers maximize their chances for determining the child’s best interests and obtaining successful testimony?

Knowing a child’s developmental level is essential to adequate representation, especially but not exclusively when the child needs to testify. Chronological age is the usual crude indicator of developmental level, but it is accurate less than half the time in the general population—and less frequently than that for children in the foster care system. Equating age with developmental level often leads to both errors of inclusion (asking more of a child than he or she can do) and exclusion (underestimating a child’s capacity to convey his or her preferences and account of events). More exact information can be pivotal in determining the best interests of the child, in successfully interviewing the child, and in defending a child’s credibility.

Contrary to popular wisdom, this information can be readily and inexpensively obtained for most English-speaking children. For courtroom use, lawyers really only need an estimate of receptive language and verbal abstract thinking. Two simple tests can provide the necessary data: (1) the Peabody Picture Vocabulary Test–III estimates receptive language (Lloyd M. Dunn & Leota M. Dunn, 1997, American Guidance Services) and (2) the “similarities subtest” on the Wechsler instruments estimates the level of verbal abstract reasoning (David Wechsler, WPPSI-III, 2002, the WISC-IV, 2003, or the WAIS-III, 1997, Psychological Corp.). These two tests can usually be administered in twenty minutes and scored in another ten minutes. Most clinics have access to someone who could routinely complete this thirty-minute assessment, and different funding streams can be used to reimburse for the tests. Results can be presented as percentiles or age-equivalents to increase their usefulness to lawyers.

Lawyers then need to know enough about child development to pitch questions and conversation to the child’s level. According to Jean Piaget, children with language and abstract reasoning skills under the age of four years can be easily misled and misunderstood, and their verbal statements are often inconsistent over retellings. JEAN PIAGET, THE CHILD’S CONCEPTION OF THE WORLD (1930). They therefore rarely make reliable witnesses. Children with language and reasoning skills between the ages of four and seven should provide reasonably consistent information over time and should be able to answer concrete questions across a wide range of topics. They will not typically be able to draw inferences, but they can often orient successfully to time, especially at the older end of this range. Children with skills equivalent to an eight- to twelve-year-old can work with more abstract concepts and can answer questions that require inferences or have multiple parts. Typically, these children can present their point of view effectively in court with developmentally sensitive questioning. Children and teenagers with developmental skills over the age of twelve are prepared for most of the cognitive tasks required of them in the courtroom and are usually accorded the legal right to state their own preferences.

Of course, these guidelines are crude and must be used cautiously. However, for harried lawyers working with children and teens in stressed juvenile court systems, routinely obtaining basic developmental information—and not relying on age to estimate a child’s abilities—can increase the chances that the information presented in the courtroom is defensible and accurately represents the child’s needs.

Sharon Jackson Witkin

Sharon Jackson Witkin, Ph.D., has been a clinical psychologist for over twenty-five years, specializing in the areas of psychodiagnostic assessment of children and adolescents, and child abuse and neglect. She is currently an assistant clinical professor in the Department of Psychology at the University of California–Berkeley and is executive director of Clear-water Counseling and Assessment Services in Oakland, California.