Abstract
In this interview, Deirdra Ward, JD, provides guidance to family counselors whose clients are involved with Children’s Protective Services (CPS). Ms. Ward addresses such issues as court appearances, documentation, working within scope of practice, and understanding and communicating effectively with attorneys. Ms. Ward also outlines procedures for reporting abuse as well as the type of information marriage and family counselors should report to the court when working with a family under investigation by CPS.
This article presents an interview with Dierdre Ward, JD, Assistant District Attorney for Lubbock, County, Texas. Ms. Ward is an advocate of family counseling. Ms. Ward has extensive experience as a professional child advocate. Prior to her appointment as an assistant district attorney, she was employed by the Texas Department of Family and Protective Services as a caseworker for Children’s Protective Services (CPS). She has provided, and continues to provide, guidance and collaboration with counseling students, family counselors, and counselor education faculty about diverse legal topics, including but not limited to, court appearance, when and how to report child abuse and neglect, and how to cooperatively and effectively work with attorneys in order to facilitate court decisions which advocate positive systemic change for families.
The stated purpose of this interview was to present this attorney’s suggestions to counselors of strategies they may use to effectively work with attorneys and courts, especially related to child abuse, child custody, and reporting of abuse and neglect. As the interview progressed, Ms. Ward provided additional valuable information to family counselors related to such wide spread topics as documentation, professional presentation, and reporting abuse and neglect. This information is presented below.
Prior to the interview, Ms. Ward was instructed by the interviewer to simply provide her opinions during the interview. Further, the interviewer asked Ms. Ward to provide practical information; that is, information regarding strategies family counselors may easily use to increase their counseling effectiveness while decreasing their stress and anxiety related to court and court appearances.
Tell me about the work that you do.
I am an assistant district attorney for Lubbock county. I have a BA in history with a minor in psychology. I had introductory training in abnormal psychology and loved every minute of it. I also have a doctor of jurisprudence (JD). I work at the district attorney’s office, on the civil (as opposed to criminal) side, but the only role I play when I go to court is for CPS. My role is to work with CPS caseworkers: thus, my only clients are CPS caseworkers. Every day I work with CPS and family members who have been accused of abuse and/or neglect. Sometimes the cases involve sexual abuse, sometimes there are physical injuries; in either situation, when the case comes to me, CPS is asking the state to take action to remove the child or children from their caregivers who allegedly perpetrated the abuse/neglect. Once we remove a child, that child goes into foster care. In the state of Texas, once they are in foster care, we have 365 days to place them in a permanent setting; either back with the family or adoption or foster care. Many families want to have their children placed back in their care. In order for them to have their children returned to their care, they must follow very specific court orders issued to them. The court orders include directives and requirements the parents must meet for their children to be returned to their care. Many times, their requirements include counseling.
What role do marriage and family counselors play in this process?
If the family has already been involved with the counselor, I can subpoena their counselor to the first hearing, which is called an adversary hearing. At that time, my primary questions are very general. I primarily want to know if the clients are attending counseling, the goals of their counseling, and their progress toward counseling goals. During the adversary hearing, the counselor’s role is to tell the court a “snapshot view” of the family’s ability to provide a safe and stable environment for their children. Further, I need to know what the counselor suggests as additional supports for the family.
If, following the adversary hearing, we (CPS) are named as guardians or managing conservators of the child, we typically tell the parents to begin individual counseling. We want that person to make some progress and then start family counseling near the end of that year when we are getting ready to send the kids back home. However, we often recommend family counseling early in the process. For example, I might recommend immediate and early family counseling intervention in a situation in which a mother and her teenage daughter frequently argue and these arguments result in family violence. Obviously, both the child and the parent need counseling; however, this might be a great opportunity to work on family counseling in order to work on family systems issues.
Agencies such as CPS contract with family counselors. If you are a contract family-counseling provider, CPS is going to ask you to do that ongoing counseling throughout that year of the case and provide your recommendations. We want to know have they made progress, have they been attending. I know it seems like I am making a big deal of whether or not they attend regularly, but when parents are not completing the required services it says something about their commitment. Keep in mind they only have a year to complete their services. If they aren’t taking their services seriously and attending counseling, they don’t have enough time to establish safe and stable relationships. Thus, they are not going to learn effective parenting techniques. The family stressors need to be addressed systemically. Most of our families have tremendous stress, including financial stress, lack of trust, and major couple issues. Having CPS looking over their shoulders is an additional major stressor and this should all be dealt with in family counseling.
If the family is working with a contract provider for CPS as opposed to an outside provider that they pay for out of pocket, does that affect the type of information you get or how you work with that counselor?
I think that one of the reasons family counselors don’t like to provide contract counseling with CPS is the many time requirements that must be met and the documentation. For example, when the department contracts with you, you have to provide progress notes one time a month. Obviously if we are paying for the service, the client is still your client and there are things that are still protected and not shared but you are required to send progress reports to the department (CPS) every month. If you are seeing our kids, Medicaid usually reimburses you for your services, but we are still asking you to send those progress notes once a month. Then your notes sometimes become part of the court report. Periodically, we will have hearings to check on your client’s progress. When these hearings occur, you may be required to come testify. In order for you to testify, we have to send you a subpoena. You are going to get reimbursed by the department for your court appearance, but you are going to have to come testify. During your testimony you will tell the court the client goals and the client’s progress toward meeting their goals. You will also let us know if the client is attending counseling.
One of the complaints I hear frequently from counselors is that we did not give them enough time to prepare for court. Frankly, you should be prepared to give testimony at any time and your documentation should be up to date and current, allowing for short notice court appearances. While I try to give several day’s notice, it’s not always possible. Last week for instance, on Wednesday the judge set a hearing for Friday of the same week, effectively allowing 1 day’s notice. Usually we get 3 day’s notice, but school was starting soon and the judge wanted to have a placement hearing. Therefore, since the attorneys didn’t get the benefit of 3 day’s notice, those we subpoenaed didn’t get 3 day’s notice either. In this case, those coming to testify for us had to rearrange their schedules. We know it’s a hardship and we prefer not to have a hearing at the last minute but sometimes we have to.
How are counselors compensated for the time they spend in court?
For the CPS counselors, they are compensated because that is part of their contract. The compensation for testifying for CPS contractors is probably not nearly as high as what you would bill if you were able to stay at your office but you will be paid. Otherwise, you can ask to be reimbursed by the client or if the client’s attorney was subpoenaing you as an expert witness, you would bill the attorney.
What do family counselors need to know about attorneys?
We have a lot of stress. We see a lot of traumatic things in our daily work. We have to deal with a lot of trauma-based issues, and I think attorneys don’t have a clear understanding of how they have been affected by work-based trauma. With that said, I think that, for the most part, we became attorneys because we want to help people. Counselors need to remember that we are under tremendous stress and, just like anyone else; we have good days and bad days.
Remember, that as attorneys, we are used to questioning and being in control. We don’t like to give up control. We want to know the answers. We are not always able to prepare cases thoroughly because, unknown to us, we simply don’t have all the information we need. Many times, family counselors have the information we need to complete a case. Because of this, I talk to any counselor I subpoena about their testimony prior to going to court. Of course, counselors should have a written release from their clients before talking to me outside court.
While I talk to counselors prior to their testimony, many attorneys do not. Thus, you should, with written client release, proactively communicate with attorneys about issues you may have with the client or the case. Remember that the attorneys may only have part of a client’s story. This may be due to inadvertent mistakes on the client’s part or client intent to withhold information. Frequently, clients unknowingly withhold information simply because of poor communication skills; however, I have also seen situations in which clients lead the attorney to believe that all of the problems in the family are due to the other parent when in reality the client has omitted telling the attorney about significant issues on his or her part.
What other things should counselors know before going to court?
Review the ethical and legal boundaries of your counseling license. This is important because most attorneys frankly don’t know the scope of practice of your licenses. Their lack of knowledge may lead them to rely on you to provide testimony you cannot provide. For instance, unless you are trained as a psychologist and have conducted projective tests on the client, I know that your licenses do not allow you to predict the future behavior of clients. I experienced this first hand when I was questioning a counselor I work with often. I was questioning the counselor, who was an expert witness, about a case in which a parent allegedly purposefully broke an infant’s leg. I wanted the counselor to testify that the baby could never go home and be safe and I asked the counselor to testify to this. Instead, the counselor responded, “My license doesn’t allow me to use a crystal ball and predict the future. I can say that I have observed that the parents are not able to identify safety issues in the family.” The counselor’s testimony was effective and the parental rights were terminated. Looking back on this now, I believe that this testimony was more compelling because of the counselor’s candor.
Sometimes we may ask about a client’s diagnosis. As I pointed out earlier, we don’t know the differences between licensed professional counselors (LPCs), marriage and family counselors, psychologists, and psychiatrists. This becomes very apparent at times. I was recently involved in a jury trial in which a defense attorney tried to discredit a counselor because the counselor did not know the medications and their dosages. Rightfully, she answered that she could not provide testimony regarding medications. The defense attorney smugly thought he had discredited the witness and seemed very proud of himself. However, I quickly resolved the issue when I asked the LPC if her license allows her to prescribe medications. “Oh no, I don’t do that. My license doesn’t allow me to prescribe because we don’t have that training.” Let’s just say that the defense attorney was not so smug after this information was presented. Always keep in mind that you are able to tell the court the parameters of your license.
Now that we have talked about counselors proactively communicating their ethics and boundaries, I want to tell you about an attorney “trade secret” of which you need to be aware. Many attorneys, myself included, use a technique of questioning in which we ask a series of three or four questions which have obvious yes or no answers. In this technique, all of the questions have the same consistent and very evident affirmative or negative answer. Then, following the series of questions in which you have answered “yes” 3 or 4 times or “no” 3 or 4 times, we quickly pose a question to you that we want answered yes or no, just as you have answered the previous questions. For example we might ask, “You would agree that the sky is blue,” “You would agree that October is in the fall,” “You would agree that counselors must have at least a master’s degree,” and then the zinger, “You would agree that this parent does not understand safety of the children.” Based upon the previous affirmative answers, we hope the witness will simply automatically say “yes.” Of course, we want the truth; however, this is a technique to extract what we sometimes see as a difficult answer regarding something that will support our argument. Thus, the lesson for you as a counselor is to think before simply answering a question. If you are not comfortable providing an answer, say so or ask the questioning attorney to clarify the question.
What are some basic things that counselors need to know about the law before they testify?
The family code of most states covers divorce, child custody, rules for CPS, and rules for dealing with juveniles. If you find yourself working with a family in which the parents are separated or in danger of separating, it is important to know the rights of each parent. Of course, you should consult with your attorney retained by your professional liability insurance if you have questions regarding your client’s rights; however, you can find many answers to family-related legal issues in your state’s family code. By the way, always remember that if you are going to counsel minors who have been involved in a custody hearing, many states require you to have a copy of the custody decree in the client’s file. Whether or not the state requires the decree in the client file, you should always know the parameters of each child’s custody order so you know basic information about the case, such as parent’s and guardian’s rights to consent to treatment and confidentiality issues related to release of information.
Are there other things about working with clients that you would like to share? That is, things that family counselors need to be aware of that we might be unaware of and, as an attorney, you would like to share with us.
Lately, we have noticed a trend that deserves attention from counselors. Increasingly, we are noting that divorced parents who don’t want their child to spend time with the other parent may fabricate an allegation of abuse or neglect against the other parent, legitimizing their violation of their visitation court order. Namely, we have had a lot of parents in trouble for making up allegations. Further, they may tell a counselor terrible things about the other parent hoping the counselor will testify about this information in court. I urge you to be cautious of these types of situations. Additionally, these clients sometimes “counselor shop” until they find a counselor they can manipulate. I see this frequently, especially be careful if a parent is asking you to sign a temporary restraining order (TRO). A TRO prevents children from going to the other parent until a hearing can be called, usually 14 days. These incidents tend to occur more frequently before summer vacation or the holidays.
What about reporting abuse?
Most counselors know that they are responsible for reporting abuse or neglect of a child or elderly person, or any person who has diminished capacity. However, counselors sometimes get confused when they are working in a school, agency, or clinic. You must remember that whomever has firsthand knowledge of the alleged abuse allegation must be the reporter. Sometimes people get confused about who actually makes the report. Medical doctors, for instance, may suspect abuse and then ask a nurse to call CPS. School counselors sometimes delegate reporting to clerical staff. Marriage and family counselors sometimes misguidedly ask administrative assistants to report abuse they hear about during a session. Remember that if you believe there is abuse and/or neglect, you have both the duty and the obligation to report. You cannot delegate reporting to someone else. In many states, it is felony if you are a professional and you don’t report abuse and neglect. Keep in mind that the rules for reporting by professionals in most states are very stringent, and you have personal responsibility to report regardless of school or agency policy. Agency or school administrators may have a policy that requires you to inform them of any suspected abuse or neglect but your report to CPS cannot be contingent on their approval.
What do attorneys need to know about marriage and family counselors?
Educate them on your background and what your strengths are. Educate them about your license and what you can testify about and what you can’t testify about. When you receive a subpoena, get client permission, and call the attorney to communicate about these issues. Tell the attorney, “I am an LPC. If you are expecting me to make predictions, I can’t do that.” When the attorney hears this information, the attorney may decide that you aren’t needed to testify. Also, it is good to educate attorneys about the types of therapy you provide. Treatment models for trauma are certainly of interest to CPS, EMDR (Eye Movement Desensitization and Reprocessing), for example, if your client signs consent for you to talk to their attorney, inform their attorney(s) of the techniques and the types of therapy you use. Commonly, I see misunderstandings regarding therapeutic techniques. For example, one of the types of assessments that our counselors typically do is a bonding assessment. Depending upon the individual counselor, bonding assessment components can be very different. Thus, you need to be able to educate people on what you do and why it might look different than the way somebody else may have done it.
Remember that attorneys don’t diagnose. If you tell us a client has a particular disorder, don’t take for granted that we know what you are talking about. Instead, tell me about the common symptoms of their disorder. Also, don’t take for granted that we know the difference between a personality disorder and a mental health syndrome. Instead, tell me what these terms mean and if the disorder is long term or short term. I also need to know the specific characteristics of the disorder.
Finally, attorneys and jurors need to know about mental health disciplines; specifically, your specialization and focus. Bring your resume or vita to court and tell us what makes a marriage and family counselor unique and different from an LPC, a school counselor, a psychologist, and/or a psychiatrist. Tell us your certifications, licenses and specializations, and the preparation you have had to attain your present professional status. Tell us additional training you received in order to receive your special certifications.
What do you need from LPCs to get your work done?
Clearly written documentation is vital. You don’t have to write down everything, but if something important happens, you have to write it down. The old adage is true that if something isn’t documented, it didn’t happen. Don’t depend solely on your memory when you are testifying. In your notes, document the content of sessions, behavioral observations, treatment plan, and treatment goals. Document the progress toward goals. Finally, please remember to document missed appointments and why a client says they missed an appointment.
Another important aspect of court testimony is that you must avoid the appearance of a conflict of interest. Always tell us if you know of or perceive the possibility of a conflict of interest. For example, I have seen situations in which a client is already in a counseling relationship and CPS files charges on them. After the charges are filed, they appear in court and the judge orders them to see a counselor. When they are so ordered, they respond that they are already seeing a counselor. Hearing this, the well-intentioned but uninformed judges, attorneys, and case workers then tell the client to simply continue seeing their present counselor. If this happens, the counselor should respond immediately in writing to the judge and the attorneys to tell them that this is a conflict of interest for the counselor and a violation of the counselor’s ethical code. Specifically, cite the ethics code that states you cannot change roles from a general counselor to a forensic counselor. If the counselor did continue with the clients, they would be in violation of their ethics code and have a conflict of interest with the client.
I recommend that counselors, as they provide testimony in a courtroom, always refer to their notes, their ethics code, family code, or journal articles. Counselors should bring all of these to court when they testify. If counselors don’t provide this documentation, they run a risk of being perceived as making up information. Remember that you, an expert witness, can make judgment calls; however, your judgment should be based upon professional knowledge. If you don’t have an answer, tell us. Always know that it is better to say that you don’t know something than to testify “yes” or “no.” Also, don’t say “yes” to something that in your mind is a “maybe.”
Is there anything else that you would like to tell couples and family counselors?
Yes, there is one more thing. As a professional and an expert witness, you must present yourself professionally. Dress and conduct yourself as a professional when you are in court. Judges and attorneys note when you are not dressed professionally and this may affect their perceptions regarding your credibility (D. Ward, personal communication, August 26, 2015).
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.