Using Screening and Assessment Evidence of Trauma in Child Welfare Cases

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

If you are a child welfare lawyer representing children, parents, or the child welfare agency, understanding how traumatic experiences may impact your clients will help you frame your advocacy. 

Understanding children and their parents’ histories of exposure to potentially traumatic life events and how those events have impacted the client’s functioning—in school, in interactions with other people, and as parents—can be critical to framing your approach in the case. Evidence of the client’s trauma history and any compromised functioning that may have resulted from that trauma is critical to integrate into your advocacy. 

Types of Evidence

A trauma-informed child welfare system develops several types of evidence of a client’s trauma history:

• medical histories (including records of prenatal stressors, such as alcohol use, illicit drug use or abuse, or exposure to other toxic stressors such as domestic violence), 
• mental health histories, 
• experiences with law enforcement agencies, and 
• court records (e.g., divorce or child custody actions, cases seeking protection orders, or criminal behavior) that may be relevant to the child’s or parent’s trauma history. 

For example, a trauma screening may reveal that the client has a history of exposure to domestic violence. In such a case, law enforcement, medical, and court records may be pursued to better understand the level of violence, its frequency, its consequences for the victim, and its impact on other family members.

It is crucial to be aware of evidence of your client’s history of trauma and how to use it to understand the client’s life-context, set goals for your advocacy, and develop the case theory. 

Trauma Screening

Know your local practice for trauma screening. 

As child welfare systems across the country become more trauma-informed, they are beginning to routinely screen children and their parents for exposure to traumatic events. Generally, the purpose of the screening tool is to identify possible sources of trauma and determine whether a full trauma-informed mental health assessment is needed. 

Such a screening addresses two questions: 

Is there reason to believe the client was exposed to one or more potentially traumatic experiences?

• child abuse (physical, sexual, or psychological) 
• child neglect (physical, psychological, or medical) 
• domestic violence 
• sexual assault 
• loss of a significant relationship (e.g., death or incarceration of a primary caregiver)
• violence in the community 
• other sources of violence (e.g., terrorism, refugee of war, etc.)

Does the client have behavioral or emotional characteristics common among traumatized individuals?

• excessive aggression
• difficulty sleeping
• excessive mood swings
• excessive withdrawal
• avoidance of specific people or places
• hypervigilance
• difficulty relating to others

A screening instrument does not ask whether a child or parent has suffered trauma. It seeks to establish whether the person being screened has been exposed to life experiences that could be traumatic. “Trauma” refers both to exposure to a potentially traumatic event and the impact of that exposure on the individual’s behavioral and emotional functioning. 

Whether exposure to a potentially traumatic event results in traumatic stress to the client will vary depending on many factors:

• number of exposures, 
• individual’s temperament, 
• individual’s age and developmental stage,
• quality of the individual’s family support system, 
• presence of other individuals who can provide support, and 
• factors that promote resilience (e.g., supportive relationships that are nontoxic or a high IQ).  

Most children entering the foster care system come from families with many problems. As a result, they have been exposed to several potentially traumatic events.¹ In addition, placement in foster care, although needed to ensure a child’s safety, is typically traumatic for a child. The child is removed from his/her primary caregiver and familiar sources of support, such as extended family members, teachers, neighbors, and members of the child’s faith community. 

Obtain trauma screening procedures and results. 

When representing children or parents in child welfare proceedings, know the screening procedures used in your jurisdiction. Obtain a copy of the tool used to screen clients and the results. Understand how screening information is shared with other individuals supporting the child and family.  Doing so provides more information about the client’s situation and helps you understand the breadth of the client’s exposure to trauma. It also provides information to help you determine whether to pursue a full assessment, and support or oppose such a request made by another party. It can also help you develop a case theory. For instance, when a screener identifies multiple forms of neglect, that information may shape a theory of pervasive child neglect resulting in harm to the child client. 

Use trauma screening results to identify other areas for evidence gathering. 

Because a trauma screening identifies potential sources of trauma and behavioral and emotional states of concern but does not tell whether the client has actually suffered trauma, its use is limited.  From a legal perspective, trauma screening results suggest areas for further investigation. 

Domestic violence. Understanding that your client has been exposed to domestic violence in the home can suggest several questions to investigate:

• Were the police called to the home? 
• Was medical treatment needed for the domestic violence victim?
• Were weapons involved in perpetrating the violence? 

If the child reports physical abuse, pursuing medical evidence may be important. Medical records should be obtained and reviewed to determine whether they contain information to help corroborate a child’s statement about the abuse. Law enforcement records may provide an objective picture of the frequency of violence in the home and the identity of witnesses who can testify to what happened or what was reported when later memories are unclear or are intentionally distorted. Similarly, prior CPS involvement may also document these matters. 

Child abuse and neglect. Children will often underreport their exposure to abuse or neglect. This may happen because the child is unaware of the details of her own history. For instance, in a recent case, a teenaged client reported she had been in foster care for “a little while.” Upon investigation, it was discovered that as a young child she had spent four years in foster care in a different jurisdiction. The client did not lie about her history; she simply did not know it. Children may, however, minimize their experiences to protect family members or because they have been instructed not to disclose information to people outside the family.  

Records from medical providers, behavioral health providers, schools and the like may provide a more accurate understanding of the extent of or the physical and emotional impact of abusive or neglectful conduct than the client’s account. School records may provide information about the impact of traumatic experiences on children’s behavior. For instance, a six-year-old child was behaviorally out of control in school, jumping out of his seat, hiding under a table and blurting out inappropriately in class the morning after a younger sibling was severely beaten in the home. 

Parental history of abuse/violence. Like children, adult clients may minimize their victimization at the hands of a partner or other potentially traumatic exposures. For instance, when an adult client was asked directly whether he had ever been abused as a child he replied, “No.” Later in the interview, he reported that as a child he was routinely “whooped.” Further questioning revealed his father had repeatedly beaten him as a child with belts, extension cords, and the like, resulting in scars on his body. He did not understand these practices as abusive, but rather as appropriate parental discipline. 

Domestic violence victims regularly minimize their victimization.² Law enforcement, court, and medical records may help establish violence in the home and its impact on the parent and child. Records from domestic violence shelters and counseling agencies may provide information to help understand the experience and impact of trauma-inducing events.  These records may contain evidence of the conditions of a home environment, and each may suggest further investigative avenues. For instance, a history of child maltreatment in the home where a mother has children with more than one father may suggest the need to pursue court records showing the custody of each child in the home.    

Juvenile/criminal court involvement. When a child crosses from the child welfare to the delinquency or criminal justice systems, screening for trauma may help identify sources of impulsive or aggressive behavior. All adolescents may be impetuous and impulsive, but young people with trauma histories may be more impulsive and more impetuous than the typical teenager. Screening these youth for trauma may suggest avenues for advocacy. For example, a youth who is impulsive because of a history of maltreatment may not be guilty of a specific intent crime in circumstances in which a youth without that history, and without the increased impulsiveness, would be.   

Trauma-Informed Mental Health Assessment

Understand trauma assessment protocols used in your local practice. 

One purpose of routinely administering trauma screening is to identify children and parents who should undergo a more detailed trauma-focused assessment. An assessment is an individualized, in-depth analysis of whether and the degree to which exposure to potentially traumatic events has impacted the individual’s functioning.  

There is no universally accepted protocol for assessing trauma, and each entity conducting the assessment uses its own protocol. These trauma assessment protocols all assess the individual’s functioning across several domains. (See Practice Tool: Sample Trauma Assessment Protocol)

Scrutinize trauma assessment decisions. 

When representing children or parents in child protective proceedings, know what protocol was used to assess clients and why. Within each part of an assessment, a clinician may make choices—which tests to administer or whether to forgo a step in the assessment. It helps to understand what decisions were made and why. 

Use trauma assessment results when planning your case strategy. 

Case history and dynamics. Information from a well-conducted trauma assessment can be invaluable in understanding the history and dynamics in a case. Often when CPS investigates, it is looking to determine whether child maltreatment happened. As part of this determination, CPS may review its own records, but it rarely looks for evidence beyond its records and their investigation of the immediate concern. As a result, they may miss important elements of the child’s and the parents’ history and experience. Because a trauma assessment is more comprehensive, it may uncover crucial information that is unknown to CPS. As the attorney in the case, you may need to follow up on this information if it is relevant to your case. This expanded understanding of the client’s history may suggest other avenues to investigate or discovery materials to pursue. They may also suggest the need to amend legal pleadings that have previously been filed in the case. 

Client functioning. In addition to expanding your understanding of the client’s history, trauma assessments provide a detailed understanding of a client’s current functional challenges and treatment needs, if any. Carefully consider such an assessment of a child, parent, and family when developing a trial strategy, determining whether to make admissions, requesting services, and setting the permanency planning goal. 

Service provision and permanency planning. An assessment can suggest specific services to provide and set a baseline from which progress in later treatment by the child and parent can be measured. In some instances, a well-conducted trauma assessment can suggest that a case be fast-tracked for permanency: return home, termination of parental rights/adoption, or another permanency goal.³ (See Case Study: Using Screening and Assessment Evidence in Permanency Planning Decisions)

Use assessment evidence to guide child welfare case decisions.

A comprehensive evaluation has tremendous evidentiary value, and is a crucial tool in meeting the legal standards at various stages of a child protection proceeding. It can guide such decisions as whether to divert a case from the formal child welfare legal process, and whether to authorize a case to go forward in a preliminary proceeding, at trial, or in the dispositional phase. Having the clinician’s assessment report and the testimony of the clinician in support of that report will assist legal decision making at each stage of a case. The assessment will be helpful in informing decision making regarding  the child’ placement, although assessors may vary in whether or not they will make placement recommendations or in how specific they will be (e.g., some may recommend placement with a family, in a group or residential setting but may not make a recommendation regarding a specific family or program).           

In the case example (see Case Study: Using Screening and Assessment Evidence in Permanency Planning Decisions), the lead clinician on the team evaluating the children and their parents testified early in the case. The testimony clarified the details reported during the assessment and provided a solid foundation for understanding the recommendation not to seek termination of parental rights immediately. It also provided the medium-range treatment challenges presented by the case for the children and each parent. Similarly, although the children had suffered multiple traumatic events, and most suffered from complex trauma, because of the various children’s ages, emotional and behavioral problems, permanent placement would likely be challenging, at least for some of the children.  These factors played an important role in shaping the child’s lawyer’s advocacy. 

Tips for Lawyers

Parents’ Lawyers

Most parents of children entering the child welfare system have themselves experienced trauma earlier in their lives,⁴ particularly child welfare-involved mothers.⁵ Often, these clients have experienced multiple traumas and have had no or inadequate treatment to address the impact of that trauma on their lives. Because of the long-term outcomes that result from their trauma experiences (e.g., increased substance abuse and mental health challenges), these parents risk permanent loss of their parental rights.⁶ As Mandy’s Case (see below) shows, these cases present a dilemma for the parent attorney over whether to advise a client to participate in screening or a full assessment.

Making Reasonable Efforts. It is generally best to disclose the parent’s trauma history, seek appropriate, trauma-informed, multidisciplinary evaluations, and demand the child welfare system provide trauma-informed services to the parent and children. Since many child welfare clients have substantial trauma histories, and many problematic parenting strategies are driven by that experience of trauma, anything less would fail to meet the “reasonable efforts” requirement. Parents must promptly take advantage of those services and show progress from them. Their failure to do so imposes unacceptable consequences on their children. 

Children’s Lawyers

Children’s counsel will benefit from early, routine trauma screening and prompt trauma assessments when screening indicates the presence of traumatic experience. Often in child welfare cases children’s lawyers must make crucial decisions about the case early in the process when they have the least information about the child and the parents. Conducting a trauma-screening can help identify information about the case and the child’s experiences quickly. Specifically, a screening instrument can identify experiences in major domains in which children experience trauma—abuse, neglect, loss of significant relationships and exposure to violence in the home and the community. 

Framework for improved advocacy. Having detailed information about the child’s exposure to traumatic events early in the case provides a framework for improved advocacy on behalf of the child. Trauma screening and assessment will provide leads for the child’s lawyer to conduct an independent investigation on behalf of the child client. Children’s lawyers should assume the petition filed by the child welfare agency is only the tip of the iceberg rather than a detailed history of the child’s experience. Often the agency is unaware of maltreatment experienced by the child client or his or her siblings. 

Child-specific services. Armed with the results of a trauma assessment, the child’s lawyer can seek services tailored to the needs of the client rather than more generic treatments provided by the child welfare system. Providing these more focused, sometimes specialized, services can speed the child’s exit from the foster care system, be that safe reunification with the parent or another permanent plan. In cases in which the maltreatment has been serious or ongoing, such an assessment can form the basis to request the case be fast-tracked for alternative permanency planning.  

Resilience building. Routine trauma screening and assessment practices can help the child’s attorney address the traumatized child’s need to build resilience by:

• Ensuring the child maintains or develops a deep emotional connection to at least one supportive adult. Hopefully, that connection is with the parents. Absent that, it may be with a relative or a foster or adoptive parent. For the child, having one such connection – even more than one – is ideal. 
  
  
• Helping the child find mastery, or success. Mastery may be over enjoyable activities like music, sports, or managing one’s affairs (e.g., managing a bank account or applying to college or a trade school). Mastery helps children build self-esteem, which is crucial to maltreated children. 
  
  
• Helping the child regulate feelings and emotions. As children learn to make sense of their experiences and their reactions to them, they will be able to exert more control over their emotions and behavior and will function better in school, in placements, in peer groups, and in other social settings. As children learn to control their emotions and behaviors, they develop a sense of mastery in this domain, which, in turn, enhances their self-esteem. 

Crossover youth. Children and adolescents exposed to trauma may become more impulsive or act out aggressively. This behavior may lead older children and adolescents to cross from the child welfare to the delinquency or the adult criminal justice systems. Understanding the youth’s trauma history can help when handling the delinquency matter because it may suggest defenses or provide important information if the youth is found responsible for a delinquent or criminal act.  

When children cross from the child welfare to the delinquency or criminal justice systems, decisions must be made by the youth’s lawyers and the court. Among them is whether and how to use information from the child protection case. A child welfare case produces evidence that may be helpful to the young person in a delinquency or criminal proceeding. Much of that information may be protected by privileges, such as the social worker-client or the medical provider-patient privilege. Depending on the nature and facts of the case, it may serve the young person’s interests to assert or waive those privileges. These decisions should be made case-by-case after carefully analyzing the facts and circumstances. 

Sometimes youth are charged with delinquency resulting from behavior that takes place in court-ordered placement, such as a foster home or a residential treatment facility. The child’s attorney should assume these placements are made because the child has emotional and behavioral issues and that all treatment provided in these settings is protected by privilege. For instance, group and residential facilities provide milieu therapy, that is, the structured environment itself (e.g., the setting and enforcing of rules of conduct) is a form of mental health treatment. As such, the attorney may argue that everything that takes place in that setting is protected by the privilege between a mental health provider (even if that provider is minimally credentialed such as a front line staff member in a residential treatment facility) and the youth. 

Agency Lawyers

Improved decision making. Agency counsel will benefit from routine trauma screening and assessment practices. Routine trauma screening can greatly enhance the agency worker’s understanding of the child’s and parent’s life experience and can identify treatment needs early in the case. 

Having more information will improve the quality of decisions the child welfare agency makes. Some research suggests that conducting early, multidisciplinary, trauma-informed assessments of children and families helps to identify more fully the complex needs of children and parents, identify service needs, and reduce the need to remove children from the home. When removal is necessary, screening and assessment helps focus on the child’s physical and psychological safety.

Framework for counseling and advocacy. Trauma-informed screening and assessment practices can provide the agency attorney a framework for client counseling and courtroom advocacy. They can be used to support agency recommendations and provide the agency a way to measure whether services are of the correct intensity, frequency, and duration. For example, in Mandy’s case (see below), an assessment might help determine the appropriate substance abuse treatment—inpatient (short or longer term), intensive outpatient, or standard outpatient. 

Reasonable efforts. A trauma screening followed by full trauma-informed mental health assessment in appropriate cases can show the court the agency has made reasonable efforts to provide services to prevent unnecessary removal or to reunify the family. By identifying specific services, a screening and assessment can focus treatment planning on the crucial aspects of the case, allowing the agency to use wisely its limited resources. 

Each parent’s progress can then be measured by the degree of compliance with the services identified and the extent to which he or she has benefitted from those services. An early, comprehensive assessment can also identify cases that should be fast-tracked for reunification or an alternative permanency plan.        

Weighing Evidence of Trauma

Assess the client’s response to trauma. 

A history of trauma is not the most salient issue. Two people may experience the same potentially traumatic event. One may experience trauma symptoms while the other may not. A complex variety of factors will influence how an individual responds. Some children are more resilient than others because of the nurturing support of adults in their environment, intelligence, and good self-esteem, for instance. Some children placed in foster care end up in prison, or become homeless or teenage parents while others attend college and succeed professionally.⁷  

One response to be aware of with crossover youth is that aggressive acting out is one frequent outcome of exposure to traumatic experiences earlier in life. Thus, many delinquent kids have long histories of trauma and polyvictimization and have suffered complex trauma. A general rule of thumb is the more aggressive or violent the delinquent behavior, the more traumatic the youth’s history. At the extreme end of the spectrum, the United States Supreme Court recognized this when it held in Miller v Alabama⁸ that it is unconstitutional to impose mandatory life without parole (LWOP) in prison on a juvenile, and that before imposing LWOP a trial court must consider the child’s personal history, particularly any history of child maltreatment and family dysfunction.  

Focus on the client’s functional ability. 

When assessing trauma in children and parents, it is crucial to focus on functionality rather than a trauma experience or diagnosis. The more an assessment looks at a person’s functional ability, the more weight it should be given. It matters less that a mother is diagnosed with a mental health disorder or developmental delay than that she can anticipate and meet the child’s needs. 

Most parents with diagnosable mental disorders never come to the attention of child welfare authorities.⁹ Conversely, a mother may have no diagnosable disorder and be incapable of parenting her child effectively, either because of deficits in her abilities or because of her child’s special needs. The more an assessment addresses the question, “Can this parent meet the needs of this child,” the more weight the answer to that question should be given. Frequently, it is the deficit between what a parent can offer and what a child needs that forms the basis for legal action to place a child into foster care or terminate parental rights.

Conclusion

Most children entering the child welfare system have experienced complex trauma, as have most of their parents. Gathering and presenting evidence of your client’s trauma history to the court helps ensure the best decisions are being made. 

Frank E. Vandervort is Clinical Professor of Law at the University of Michigan Law School where he teaches in the child advocacy and juvenile justice clinics. He received a law degree from Wayne State University and has practiced child welfare and juvenile delinquency law for 25 years. 

This article was produced under grant number 2012-VF-GX-K012 from the Office for Vic­tims of Crime, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this article those of the contributors and do not necessarily represent the official position or policies of the U.S. Department of Justice or ABA.

Endnotes

* Thanks to Jim Henry, PhD, for his helpful comments on an earlier draft of this article.

1. Jill Duerr Berrick. Take Me Home: Protecting America’s Vulnerable Children and Families, 2009, 14.

2. Henning, Kris, Angela R. Jones & Robert Holdford. “’I didn’t do it, but if I did I had a good reason’: Minimization, Denial and Attribution of Blame among Male and Female Domestic Violence Offenders.” Journal of Family Violence 20, 2005, 131. 

3. Vandervort, Frank E., Jim Henry & Mark A. Sloane. “Building Resilience in Foster Children: The Role of the Child’s Advocate.” Children’s Legal Rights Journal 32, Fall 2012, 1. 

4. National Child Traumatic Stress Network. Birth Parents with Trauma Histories in the Child Welfare System:  A Guide for Parents. Available at: www.nctsn.org/sites/default/files/assets/pdfs/birth_parents_trauma_history_birth_parents.pdf; Chemtob, Claude M., et al. “Screening for Trauma Exposure, and Posttraumatic Stress Disorder and Depression Symptoms among Mothers Receiving Child Welfare Preventive Services.” Child Welfare  90, 2011, 109; Smithgall, Cheryl, et al. Parents’ Pasts and Families’ Futures: Using Family Assessments to Inform Perspectives on Reasonable Efforts and Reunification, 2012.

5. See, e.g., Blakey, Joan Marie & Schnavia Smith Hatcher. “Trauma and Substance Abuse among Child Welfare Involved African American Mothers: A Case Study.” Journal of Public Child Welfare 7, 2013, 194  (citing research that 91-100% of mothers with children in the child welfare system have experienced at least one trauma inducing event in their lives). 

6. Larrieu, Julie A., et al. “Predictors of Permanent Loss of Custody for Mothers of Infants and Toddlers In Foster Care.” Infant Mental Health Journal 29, 2008, 48.  

7. Compare Shirk, Martha & Gary Stangler. On Their Own: What Happens to Kids When They Age Out of the Foster Care System, 2004, with Bridge, Andrew. Hope’s Boy, 2008.

8. 576 US ___; 132 S Ct 2455; 183 L Ed 2d 407 (2012).

9. See Vandervort, Frank E. “Child Welfare Cases Involving Mental Illness: Reflections on the Role and Responsibilities of the Child’s Lawyer-Guardian ad Litem.” Michigan Child Welfare Law Journal XIV, winter 2012, 31.

Practice Tool: Sample Trauma Assessment Protocol

The Southwest Michigan Children’s Trauma Assessment Center (CTAC) uses the following protocol:

• medical evaluation (which assesses, in part, whether the child has been exposed to alcohol prenatally); 
• clinical interview with the child; 
• neurodevelopmental assessment; 
• intelligence screener; 
• assessment of the child’s emotional condition, behavioral adaptation, and social adjustment using a variety of standardized testing instruments, some chosen based on the child’s chronological age (e.g., Vineland Adaptive Behavior Scales, Multidimensional Anxiety Scale for Children, Trauma Symptom Checklist for Young Children) and others administered to children of all ages (e.g., Child Behavior Checklist, Child Dissociative Checklist), 
• Pragmatic Protocol (measures social communication skills, i.e., the ability to understand a social situation and respond appropriately); and 
• psychosocial trauma assessment. 

After the assessment, the clinical team drafts a detailed report organized as follows: 

1. physical and medical findings; 
2. developmental findings (including neurodevelopmental, social communication skills and overall development); 
3. cognitive and academic performance; 
4. social and family situation; 
5. emotional and behavioral functioning; 
6. trauma (the history of potentially traumatic events discussed); 
7. conclusions; 
8. recommendations. 

CTAC’s clinical staff meets with the child’s caregivers and caseworkers to discuss the findings, conclusions, and recommendations.     

Case Study: Using Screening and Assessment Evidence in Permanency Planning Decisions

Background: In a case in which CPS substantiated child abuse in the home, the agency was required by statute to seek termination of parental rights at the initial disposition. After petitioning to terminate parental rights, a trauma screening of the children revealed they had experienced multiple forms of trauma while in the parents’ home. A full trauma assessment:

• suggested certain treatment approaches might help the children safely reunite with their parents,
• identified concerns that were not known before the assessment, 
• identified specific needs of each child and parent, treatments for some of the children, and qualifications for treatment providers. 

Case planning: Rather than seek immediate termination, through negotiation the parents agreed to admit responsibility for child maltreatment. The children would become temporary wards of the court, and the court would order a treatment plan that addressed the needs of each family member. In the meantime, the assessment:

• provided a baseline when measuring whether progress was being made in treatment
• provided information to educate the foster parents about the children’s experiences and explain some of their difficult behaviors (i.e., showed their problem behaviors were not used to cope physically and emotionally with their experience).

Permanency planning: This case was removed from the termination track. The assessment and recommendations:

• improved how progress in treatment was measured, 
• helped the attorneys and the court determine the parents’ progress toward the case goal for each child. 
• helped clarify the needs of each child and the parents’ ability to meet those needs. 
• helped identify which children would need alternate permanency plans,
• helped the agency, lawyers, and court make individualized permanency plans for each child—some were placed in legal guardianships, some were relinquished by the parents for adoption, and one child was returned to the parents’ custody. 
• aided in providing for the best interests of the children while giving the parents an opportunity to regain custody.      

Case Study: Mandy's Case: Assessing a Parent’s Trauma History

CPS Involvement

Mandy¹ is the 23-year-old mother of two daughters, one of whom is the subject of a child protective proceeding. Heather, Mandy’s older daughter, was placed in a legal guardianship with Mandy’s sister after child protective services (CPS) became involved in that child’s case, and she is not a subject of the current proceeding. Ashley, the younger daughter, is 11 months old. Ashley was born exposed to opiates and a mandatory referral was made to CPS. CPS referred Mandy for drug treatment and the case was closed after she “successfully” completed that treatment. 

Several months later, another referral was received, reporting that Mandy was using heroin and earning money by prostituting. After an investigation, Mandy was again referred for drug treatment. After a period of “successful” abstinence and treatment, Mandy began to test positive for heroin. A petition was filed with the court, although Ashley was not removed from Mandy’s custody.

Trauma History

Ashley’s attorney began investigating the case. She interviewed family members and quickly learned that Mandy had endured extensive sexual abuse as a child. She began using alcohol and drugs as a young teen, eventually becoming addicted to heroin. Family members explained that Mandy had been raped repeatedly as an adult woman by men with whom she used drugs; they reported that she was prostituting, largely reported through online sources. Mandy was unable or unwilling to identify Ashley’s father and refused to provide any name. 

Request for Trauma Assessment

With this information, Ashley’s attorney approached Mandy’s attorney, requesting an agreement that Mandy would undergo a trauma-informed assessment and follow treatment recommendations. The case was made that Mandy’s repeated return to drug use after “successful” completion of drug treatment programs was driven by her unresolved trauma history. Mandy’s attorney refused. Because the allegations in the petition had not been adjudicated, the court refused to order such an evaluation even though the law gives the court this authority. 

Case Outcome/Questions Raised

Several weeks later, Mandy continued to use and test positive for heroin. At the request of the agency and Ashley’s attorney, the court ordered Ashley removed from Mandy’s care. 

Did Mandy’s attorney act reasonably? On one hand, the attorney worried that undergoing such an evaluation would develop evidence that would be “used against” Mandy.² 

By refusing to cooperate with the trauma-informed assessment and opposing the request for a court-ordered assessment, did the attorney set the client up to fail? This can be a dilemma for a parent’s lawyer. Some parents’ lawyers argue it is better to keep this information from workers and the court. 

As Mandy’s case shows, it is often the individual’s trauma history that drives problem behavior. By failing to disclose the history and seek trauma-informed evaluation and treatment, there is a strong probability the client will not get necessary services and will be deprived a meaningful opportunity to overcome functioning problems and regain custody. In Mandy’s case, she “successfully” completed drug treatment and remained drug-free for a period, but when she was overwhelmed by her life events and history, she returned to drug use.

Mandy’s case is common. In many child welfare cases, substance abuse is a concern, and research shows a strong link between substance abuse and experiencing trauma earlier in life.³ Addressing that history of trauma can be complicated by poverty, as in Mandy’s case, or racism. 

¹ Based on case from author’s recent practice. Names have been changed to preserve confidentiality.

² See Feierman, Jessica & Lauren Fine. Trauma and Resilience: A New Look at Legal Advocacy for Youth in the Juvenile Justice and Child Welfare Systems, 2014, 33-35 (arguing that a parent’s history of trauma may be used to terminate parental rights).

³ See Department of Health and Human Services. Blending Perspectives and Building Common Ground: A Report to Congress on Substance Abuse and Child Protection, 1999 (reporting high levels of substance abuse among child welfare population); Blakey, Joan Marie & Schnavia Smith Hatcher. “Trauma and Substance Abuse among Child Welfare Involved African American Mothers: A Case Study.” Journal of Public Child Welfare 7, 2013, 195-196 (describing the link between substance abuse and experiences of trauma earlier in life).