Are they guilty of their parental behavior? Parenting forms constructed in termination of parental rights court cases

Abstract

The study examines forms of parenting constructed in Israeli termination of parental rights (TPR) cases, and the processes involved in their construction, based on a qualitative thematic analysis of 130 TPR cases. The study hypothesized that, due to lack of clearly-defined evaluation criteria, judges and professionals engage in social constructions of reality processes related to the child–parent relationship. The analysis indicated that, through constructions of non-normative parenting, biological parents are depicted, in court, not only as dysfunctional and parentally unfit but also as “guilty.” Four categories of such parenting were identified: impaired, “failed,” dangerous and harmful. The perception of guilt resulted from the courts' attribution of parental behavior to pathological psychological factors, while ignoring contextual factors such as poverty and stress. The study discusses how negative views of parenting impact on legal decisions aimed at serving the child's best interests and consequent implications for social work and legal practices.

Keywords

Parental capacity termination of parental rights qualitative research adoption court decision

Introduction

In most jurisdictions, termination of parental rights (TPR) proceedings are initiated against the biological parents by the state when there is evidence of child maltreatment (CM) and child protection workers have come to the conclusion that the parents' parental incapacity will not change, in a reasonable time frame and despite the social services provided to the family (Benjet and Azar, 2003; Wattenberg et al., 2001). TPR represents the final stage of the child protection response to CM. The various professionals who take part in the legal proceedings, such as child protection workers, psychiatrists, psychologists, and social workers, provide the courts with assessments of the child and the parents (Budd, 2001, 2005; Budd et al., 2006). The courts then have to decide whether the parents are capable of providing adequate care and custody for their child, whether the parental behavior and/or condition are likely to change in a reasonable time period and the child's best interests (Azar et al., 1995, 1998; Barnum, 1997; Budd et al., 2013; Grisso, 2003). The present study aims to examine how parenting is socially constructed (Berger and Luckman, 1991) in the context of Israeli TPR cases, meaning how parental behavior and the child–parent relationship are interpreted and narrated in the court decisions.

Background

TPR cases often involve CM (Azar and Benjet, 1994; Azar et al., 1995, 1998; Budd, 2001). While CM has been the focus of research in the past decades, studies on TPR have been scant. When conducted, they focused primarily on profiles of foster care children (Noonan and Burke, 2005) and their parents (Meyer et al., 2010; Wattenberg et al., 2001) who were the subject of TPR cases; standards for discussing parental capacity in TPR cases (Azar and Benjet, 1994; Azar et al., 1998; Ben-David, 2013; Benjet and Azar, 2003; Budd, 2001; Budd and Holdsworth, 1996); models for assessing parental capacity (Azar et al., 1998; Benjet and Azar, 2003; Budd et al., 2006; Harnett, 2007); social perceptions embedded in parental incapacity rulings (Ben-David, 2011a; Mass and Nijnatten, 2005); and the limitations of professional assessments provided to the courts in TPR cases (Azar et al., 1995, 1998; Benjet and Azar, 2003; Bolton and Lennings, 2010; Budd, 2005; Budd et al., 2006; Melton et al., 1997). None of these studies analyzed the forms of incapable parenting in TPR court cases.

The concept of parental capacity is a central concept and the basis on which decisions in the child protection system are made (Azar et al., 1995, 1998). The literature on forensic assessments (assessments for legal purposes) of parental capacity questions the credibility of parent evaluations due to the methods and practices used by the relevant clinicians (Azar et al., 1998; Budd, 2001, 2005; Budd et al., 2006; Budd and Holdsworth, 1996; Grisso, 2003; Harnett, 2007; Melton et al., 1997). The credibility of such assessments is further weakened by a lack of universal models or standards of minimal parenting competence (e.g. Azar et al., 1995, 1998; Ben-David, 2011b; Budd, 2001; Budd and Holdsworth, 1996; Melton et al., 1997). Assessments of parental capacity pose a unique challenge, for they are not based on an exact science but rather on a process that requires the exercise of professional discretion (Azar and Benjet, 1994).

TPR decisions represent a discourse during which judges, mental health experts, and child protection workers attempt to determine parental capacity or incapacity and the future of the child–parent relationship. This study aims to examine how professional knowledge is used to construct forms of parenting that have social meanings and implications. Through the social construction of reality processes (Berger and Luckman, 1991), professionals interpret parental behavior as capable or incapable. These interpretations involve more than simply matching behavior to relevant categories; they represent a creative act of imparting social meaning to a specific behavior, thus transforming it from an “act” to an “act that has meaning” (“parental incapacity,” “risky behavior”) and legal consequences (“TPR and freeing the child for adoption”). Court decisions thus reflect an active act of constructing a family story into a judicial narrative with legal implications (Bennett and Feldman, 1981; Bruner, 1991; Delgado, 1989; Scheppele, 1989). Since parental capacity is brought into question in TPR cases (Benjet and Azar, 2003), these processes of interpretation take place within a cohesive context of TPR proceedings, where parental rights are at stake. One can, therefore, assume that negative meanings will be ascribed to the parental behavior and negative forms of parenting will be found in court decisions.

Families involved in TPR represent the hard core of the child welfare population: they are usually poorly educated, economically disadvantaged, and suffer from a multitude of problems, which can include psychiatric and substance abuse issues (Azar et al., 1998; Meyer et al., 2010). The present study aims to demonstrate how parenting is constructed by professionals in relation to socially-marginalized parents. This construction is carried out under the unique, extreme circumstance of the state filing to sever the parent's rights and free their children for adoption. Accordingly, the social processes involved in the construction of parenting, in these cases, are likely be more extensive and therefore more easily identifiable for research examination.

It is important to emphasize, here, that children's experiences of deprivation and injury are not in dispute. This study seeks to examine and problematize the social processes by which meaning is imparted to experiences, preference is given to certain meanings over others, and the consequences of particular meanings for children and families. Based on a qualitative analysis of 130 Israeli courts decisions ruling in favor of TPR, the research examined: (1) what are the forms of parenting constructed in TPR court cases; (2) how is parenting incapacity constructed to justify TPR?

In Israel, when a minor is suspected of being in emotional and/or physical danger, designated social workers are authorized to investigate the case. The social workers can initiate the child's removal from his/her home and placement in alternative care and, after a certain period, they may also authorize the child's reunification with his parents. In cases where various placement options fail to secure the child's well-being and/or when the parents are deemed parentally-incapable with no likelihood of change, the social workers can recommend involuntary adoption, which involves the TPR and making a child eligible for adoption. In these cases, the social workers are obliged to bring their recommendation to a ‘Decision Committee’ for consideration and approval. The ‘Decision Committee’ is an interdisciplinary body empowered to discuss, diagnose, and decide on a proper treatment plan for minors and it is an inseparable part of the social services department of every local authority. If the committee approves the social workers’ recommendation, it then refers the case to the Attorney General with a view to filing for TPR and adoption of the child. The Attorney General decides if there are grounds for TPR and declaring the child eligible for adoption without his/her parents' consent. If this is the case, the Attorney General files a petition in a Family Court and the biological parents have to defend their rights in court. The data in this study were taken courts decisions ruling in favor of TPR in which the judges ruled against the biological parents.

Method

Sample

The study was based on a qualitative analysis of the content of 130 court decisions ruling in favor of TPR. These decisions were handed down by the courts at the end of legal proceedings aimed at deciding whether or not the parents were capable of taking due care of their child.

This purposive sample was chosen out of 231 TPR court decisions published in the official records and databases of Israeli court decisions in the period 1960–2007. The sample was built to represent court decisions issued every year in the relevant period and, from these, decisions that would contribute to enriching the analysis were chosen from each year if they set a legal precedent or determined ways of interpreting the law or the rights of the child, the parents or the family unit. Most of the decisions were identified by searching electronic databases using key words relevant to TPR, such as “child maltreatment” and “parental fitness.”

After breaking down the sample of decisions in decades, it was found that more than two-thirds of the decisions (68.5%) were handed down between the years 1990 and 2007. Specifically, 3.07% (n = 4) of the decisions were published between 1960 and 1970; 10.8% (n = 14) between 1970 and 1980; 17.7% (n = 23) between 1980 and 1990; 40.8% (n = 53) between 1990 and 2000 and finally, 27.7% (n = 36) between 2000 and 2007.

Demographics of the sample

The average age of the mother was 34 and of the father 43. The majority of families in the sample (62%) had more than one child, usually three children. The socioeconomic background of the present sample indicates that the families were disadvantaged and socially-marginalized. In 54% of the cases, the poor socioeconomic condition of the family was documented in the courts' decisions. Of all, 26.8% of the mothers had criminal record such as drug abuse (19%), criminal conviction (11%), and incarceration (9.4%). Of all, 36.2% of the fathers had a criminal record: most had a record of criminal convictions (26.8%), incarceration (24.4%), and drug abuse (22%). Of all, 73% of the parents were diagnosed with mental health problems such as mental illness (23.6% mothers, 6.3% fathers), personality disorder (33% mothers, 26.8% fathers), and emotional problems (7.1 mothers, 6.3 fathers). Of all, 67.7% of the cases indicated a mental health background and/or criminal record of one or both parents.

Analysis of court decisions

The study was based on a qualitative thematic analysis of the sample (Denzin and Lincoln, 1994; Lincoln and Guba, 2000), a technique which is used to identify patterns (themes) in qualitative data and facilitate interpretation. The constructivist approach to social reality served as the conceptual framework for the study. The constructivist approach to social reality views professional knowledge and truth as created and constructed, rather than as discovered, thus involving ideology and values (Guba and Lincoln, 1998; Schwandt, 2000, 2006). The premise of the study held that, due to the lack of clear legal and professional criteria to guide the TPR decision-making process, judges and other professionals involved engage in social constructions of reality processes (Berger and Luckmann, 1991) relating to the child–parent relationship. Accordingly, they are actively involved in interpretation and meaning-making (Schwandt, 2000, 2006) regarding the family story. The study therefore aimed to examine how parental incapacity is constructed in TPR decisions, with specific focus on forms of negative parenting, as well as to analyze the social construction of reality processes involved in the construction of these forms of parenting.

The thematic content analysis of the sample was carried out through cross-case analysis, by coding themes identified in the different cases (Denzin, 1989). All the cases were intensively read and coded. References in the decisions to the parenting capacity of the biological parents were collected and re-organized in order to identify patterns of meaning, and enable coding of core themes (Strauss, 1987; Tuckett, 2005); the core themes were conceptually re-ordered and re-contextualized into higher, abstract categories with a common denominator, in order to arrive at a higher level of synthesis and meaning (Miller and Crabtree, 1992; Tuckett, 2005; Tesch, 1990). The findings were mapped into four main themes or categories of parenting, including the ways in which these categories were constructed by the courts.

Results

Parenting forms constructed in the legal discourse

The analysis of the legal discourse in TPR cases indicated that the biological parents were viewed negatively and considered “guilty” of their parental behavior. Through the construction of various forms of parental abnormality, the parents were presented not simply as dysfunctional and unfit but also as guilty. Instead of explaining the parents' behavior in terms of parenting difficulties or as inappropriate responses to adverse life circumstances, the parents were described in a negative manner and blamed explicitly or implicitly for their parental behavior. The analysis identified four categories of non-normative parenting, of various severities: impaired parenting, “failed” parenting, dangerous parenting, and harmful parenting. The following examples describe the forms of parenting identified in the legal discourse and discuss the processes used in their construction.

Impaired parenting

This category covers parents who were explicitly described as impaired in their parental ability: “the mother's parental capacities are totally impaired” “the mother parental capacities are irremediably impaired”. Impaired parenting was usually deemed to result in neglect of the child: “all the areas of parental functioning are impaired and all the children's needs are not satisfied but seriously neglected”. The language used to describe parental functioning is definite and inclusive, and leads to the unidirectional conclusion of no prospect of improvement in parental functioning and, thus, in the inevitability of TPR. Usually the impairment in parenting is attributed to the parents' emotional pathologies: “the father's parental capacities are seriously impaired since he cannot prefer his daughter's need over other needs”. The emotional egocentrism of the father, in this case, was considered the cause of his parental deficit. In another example, the mechanical rather than emotional functioning of the mother towards her children was seen as impairing her parenting: “the social workers' testimonies indicated that her functioning as a mother is impaired. The mother treats her children mechanically and does not demonstrate feelings toward them”.

The conceptualization of parental behavior in terms of “impairment” implies that there is some kind of inner “mechanism” of parental capacity that has been “impaired” in these cases, and that operates appropriately in “normal” parents. The presentation of parents as suffering from some kind of “impairment” implies that the parents suffer from some kind of abnormality or deviance. In such conceptualizations, parental incapacity is attributed to inner, non-modifiable causes, rather than to changeable contextual causes. Neglect is thus attributed to psychological pathologies that are not amenable to change, rather than to ecological factors and processes in the lives of the parents and children (Belsky, 1980; Belsky and Vondra, 1989; Cicchetti and Lynch, 1995; Cicchetti and Rizley, 1981; Garbarino, 1977). In one case of serious neglect of children, a judge dismissed poverty as the possible explanation: “in this case, neglect of the basic obligations of the parents toward their children was very serious, obligations that even the poorest parent can completely fulfill out of will and dedication”. Such a statement implies that the parents were not willing to carry out their duties and were not sufficiently dedicated to their children. Poverty is dismissed as a factor for understanding (not justifying) parental behavior, since “even the poorest parent” is expected to fulfill his/her obligations toward the child. The comment does not take into account the effects of economic deprivation on the care provided by the parents.

While it is acknowledged in the research literature that most poor parents do not maltreat their children (Loman and Siegel, 2012), poverty is consistently recognized as a major risk factor of CM and is comorbid with various other factors such as single-parenting, parental stress, lack of social support and living in a dangerous neighborhood (Drake and Jonson-Reid, 2014; Nikulina et al., 2011). The gap between how the parents behaved and how they should have behaved enables parents to be “blamed” for their parental incapacity.

Failed parenting

This category covers cases where parents were described in terms of having failed and not “succeeding” in carrying out their parental role: “there is no doubt that the appellate failed in her role as a mother”. Sometimes failed parenting is described as “deficient parenting” and is contrasted with normative parenting, which is considered “complete parenting to a sufficient degree”. The conceptualization of inadequate parenting as a “failure” categorizes the parent as abnormal for it implies that there are parents who succeed and parents who fail to conform to parental norms. It also implies that the parents had a free choice and could have succeeded in parenting had they tried harder. Again, as in the previous category, the parent is deemed the main culpable factor, while the role of other ecological factors is overlooked.

In some cases the parental guilt was augmented, when the parent was described as having been given “a second chance” to prove her parenting but failed in this: “the mother was given a complete opportunity to prove her capacity to take care of the daughter but she failed in this attempt”; “the case is not about a parent was not given a chance to attempt to raise the minors, but about a parent who failed to do so”. The language, used in these cases, is similar to that of the criminal justice system: terms such as “success, “failure,” “second chance,” “to prove oneself” reflect correctional language. Such language equates parental incapacity with deviation from parental normality and societal rules and norms, and thus implies an element of guilt in the parent's behavior. The negative perception overshadows positive elements in the child–parent relationship. For example, in one case, the father was described as having failed to demonstrate appropriate emotions towards his children and parental failure was attributed to the father's emotional egocentrism: “he is unable to prefer the children's needs over his own and is incapable of providing for their basic emotional and developmental needs”. Prior to this, the father had been described in court as a positive person, who loved and cared for his children:

“The appellate is not a violent person, not dangerous to his children and has no criminal record. Professionals expressed their opinion that he has good intentions, demonstrates a lot of love toward his children and is a person who evokes a lot of empathy. During visits with his children, they also gave him love back and expressed great sorrow at not being allowed to stay with him longer”.

Despite the positive description of the father and his relationship with his children, the court ignored the contradiction between the description of the father as demonstrating considerable love to his children and his description as having failed in his emotional relationship with them. The assessment of parental failure led to the conclusion of parental incapacity and termination of the father's parental rights. The perception of the father's parental functioning as a failure diminished the weight accorded to the positive child–parent relationship. It also detracted from the children's emotional attachment to the father and their suffering when they were separated from him. The term “failure” has negative social associations and its use, in such cases, is indicative of the grave negative manner in which parentally-incapable parents are viewed.

Dangerous parenting

Dangerous parenting is constructed as parenting that poses a risk to the child: “the expert sees a danger in the continuation of the child's relationship with her parents”; “the exposure of the children to the father will cause them considerable harm”. The anticipated risk, here, is to the child's emotional development: “permitting the child to remain in the parents' custody jeopardizes his development and personality […] the parents are not able to provide for minor emotional needs and can even harm his development”; “reunification of the child with his parents may present a danger to his physical well-being as well as to his future emotional development”. Parental incapacity is usually associated with certain harm to the child: “the parents are not capable of providing for the child's needs or of coping with his distress, and the child is expected to suffer great harm if reunified with his parents”; “reunification of the child with his mother will cause him irreversible harm”. The fact that these statements are only predictions of possible future situations is undermined by the dramatic, decisive and excessive language used (“great harm”; “irreversible harm”) and transforms an anticipated situation into a valid reality that will certainly take place. The decisive language helps to support the inevitability of the minor's separation from his parents.

The possible risk to the child of the parent's behavior is deemed to derive from the parent's mental state or problematic personality. In one case, the court determined that, in view of the mother's personality and her symbiotic relationship with her daughter, there was a risk that the child would develop a personality disorder. The court embraced the expert's opinion that: “the risk in this situation is that the minor will not succeed in developing an individual personality and will develop personality and conduct disorders as well as a disturbed relationship with others”. In another case, parents were described as endangering the child's education due to their personality: “there is a high likelihood that because of their personality and disabilities the parents will impede the appropriate educational course of the girl, and harm her safety and best interests, not intentionally, but due to their disabilities”. The parental danger, here, is seen in global terms and covers endangering the minor's education, her safety and best interests, due to the parents' problematic personalities.

Since all prognoses of future harm to a child are based on potential dangerous parental behavior, the way parental behavior is interpreted and understood is central to TPR cases. The underlying assumption, in these cases, is that there is a direct, causal connection between parental incapacity and/or problematic personalities with potential emotional harm to the child. While the assessment of parental danger is based on predictions of future harm to the child, this “future” harm is presented as definite and certain. When parental behavior is constructed as a “danger,” it creates the impression that there is an urgent need to protect the child from the parent who threatens his development. In such a situation, the only rational solution is separation of the child from the parent: “the expert anticipates a danger to the child if she continues the relationship with her parents, therefore she should be detached from them and removed to an adoptive family”. In such cases, confidential adoption is seen as the best way to ensure the child's best interests: “there is no way to promise normal development and raising of the minor unless she is admitted to adoption with a healthy and appropriate family that will provide her with a normal life and she is completely detached from her natural familial environment which can harm her”.

Harmful parenting

This category reflects the most serious type of parental non-normativity. Parental behavior is constructed, here, as not simply potentially endangering the child, but as actually causing harm to the child. This category thus signifies violation of the basic foundation of the child–parent relationship which is to ensure the physical and emotional safety of the child. In these cases, the parents are explicitly depicted as harming the child: “the mother cannot see the child's needs, cannot provide for those needs and, on the contrary, is causing harm to the child”. Such harm is usually to the emotional well-being of the child: “the contact with the father damages the child emotionally and developmentally”; “the father's connections with the minor do not benefit her and even harm and evoke anxiety and concern regarding the father”. In some cases, the harmful parenting is described in terms of balancing the pros and cons of the parent–child relationship: “the relationship between the minor and his parents is more harmful than useful for appropriate development”.

In these cases, the emotional relationship between the parent and the child is perceived as pathological or the pathological personality of the parent leads to the perception of harmful parenting. One such example is when the parental role is inversed and the child assumes the role of parent: “the relationship between the mother and her daughter is harmful and damaging since the relationship requires the minor to act as a parental child and be attentive to the mother's needs, instead of the mother being attentive to the daughter's needs”. In another case, the professional assessment concluded that the emotional egocentrism of the mother precluded her from considering her child's interests: “despite of the love of the appellate (the mother) for the minor, which is unquestionable, she sees only her interests; she communicates confusing messages to the minor (for example, that she prepared a house for him to live in with her being aware that he had been declared free for adoption) and is incapable of seeing the damage she causes him”. An alternative interpretation of the mother's wish to reunify with her son was not discussed and her behavior was constructed to fit with the assessment of parental incapacity.

In view of the deterministic nature of causal explanation, where the state of a child is attributed to the parents' incapacity and deviance, the outcome, in such cases, is conclusive: complete separation of the child from the parent. In the last case, for example, the judge concluded that: “the mother cannot serve as an adequate mother for the minor […] she cannot provide the minor with a home and be a family to him”. The continuation of the child–parent relationship is described in dramatic, definitive language: “if the mother continues to raise the child, she will cause certain crucial emotional damage to his development”. A situation of harmful parenting provides full legitimization for permanent separation of a child from his parents.

In conclusion, in all the parenting categories cited, the parents were presented as non-normative and deviant. The courts did not use neutral language to describe the parental functioning, and explicitly or implicitly presented the parental behavior as causing harm to the child and as the source of the child's condition. Even in cases when they did not state specifically that the parent's personality caused harm to the child, this was to be inferred from their categorization of the parent as deviant. The attribution of parental behavior to inner factors, most usually the parent's problematic personality, while ignoring contextual factors, indicts the parent as “guilty” and sets the scene for the separation of the parents from the child. Since the parent's mental state or personality is identified as the source of the problem, then the only possible solution to ensure the child's best interests must be to detach the child from the parent. Accordingly, the decisions did not usually discuss considerations regarding the effect of severing the child's relationship with his parents.

Several limitation of the study should be noted. The study was based on a content analysis of court decisions and was thus limited to information referred to by the courts. In addition, the sample represents the most high risk families in the child welfare population. Therefore, caution is needed when generalizing the findings to other levels of at-risk populations. The study did not examine the impact of changes in the social context, such as in the social perception of parental roles and of the traditional family, on the parenting forms constructed in TPR cases. Further study is needed in these areas to better inform the decision-making process involved in TPR.

Discussion

The current study examined how parenting forms were socially constructed in TPR decisions. Four parental forms were identified, ranging from impaired parenting, failed parenting, dangerous parenting to harmful parenting.

The analysis of how these categories were constructed indicates that parents tend to be blamed for their parental conduct and perceived as “guilty.” The language used to describe parental behavior categorized parents as deviant and went beyond descriptions of the parents as “dysfunctional” or “unfit,” indicating that parents were viewed negatively and perceived as “guilty” of their parental behavior. The perception of parental guilt resulted mainly from the courts viewing the parent as the main culpable source of CM and attributing parental behavior to inner pathological causes, such as the parent's problematic personality or mental health condition, while ignoring “extra-individual”, contextual factors (economic, environmental, social; Budd, 2005). Scholars have noted the greater emphasis given to psychological causes of CM rather than to environmental factors such as the stresses of parenting and poverty (Erickson, 2000). The focus on parental guilt and the disassociation of child abuse and child neglect from the complex contexts caused by poverty and other related factors were found to create problems in terms of formulating effective policy (Erickson, 2000; Gambrill, 2005; Kotchick and Forehand, 2002).

The findings also reflect a gap between social science research on CM as ecological phenomena explained by multiple factors (Belsky, 1980; Belsky and Vondra, 1989; Cicchetti and Lynch, 1995; Cicchetti and Rizley, 1981; Garbarino, 1977), and the view of the parent as the main culpable factor of CM, with insufficient attention paid to the various ecological systems involved in family life and an individual's ability to parent.

An alternative approach to the parents-are-guilty theme could be consideration of the multiple barriers to parenting faced by the parents. Risk factors relating to the parents could be used to understand the parents' behavior, not as isolated behavior but as an intrinsic part of the parental life context. The act of viewing parental functioning and the child–parent relationship in contextual terms could provide more possibilities of treatment and intervention. For example, if the discussion of parental fitness incorporated factors such as “poverty” (Drake and Jonson-Reid, 2014; Kotchick and Forehand, 2002), “parental stress” (Cicchetti and Lynch, 1993; Herrenkohl and Herrenkohl, 2007), “multi-problem family” (Chaffin et al., 2011; Jonson-Reid et al., 2010); social support, processes of change and interactions between the child and the parents as well as between the parents and the environment (Sperry and Widom, 2013; Spilsbury and Korbin, 2013), this would lead to a broader understanding of problematic situations and enable different approaches to family interventions.

In contrast, if parental behavior is discussed in terms of a “criminal justice perspective,” this inevitably leads to a negative perception of the parents and ultimately to a decision in favor of TPR. The criminal justice perspective uses terms such as “failure” to assume parental roles, “dangerous behavior” of the parents, “harmful” parental behavior, parents being given a “second chance” to change, and so forth. The construction of the child–parent relationship in these terms leads to a perception of parenting as pathological and deviant. The categorizations of abnormal parenting often lead to child protection and legal practices that focus on one outcome and preclude a broader range of intervention. When parents are assessed as a “failed”, “dangerous”, and “harmful” they are also usually assessed as lacking readiness to change or as unamenable to intervention. As a result, they may not be eligible for certain kinds of services and their case is transferred from child welfare to child protection departments. Their child will most probably be removed from the home and their parental rights are likely to be terminated. These proceedings can be at the expense of the child's best interests and wellbeing (Goldsmith et al., 2004; Mass and Nijnatten, 2005). In general, in such cases, the view is that the child's best interests can only be assured if he is detached from his parents and adopted. Other possible alternative living arrangements are unlikely to be considered. The courts often under-appreciate the emotional cost and severe risk caused to a child when he is separated from his primary caregiver, and the long-term effects on the child of such separation (Goldsmith et al., 2004).

It is clear that both approaches, the “the child welfare contextual perspective” versus “the parent as main culpable” / “inner pathological perspective,” impact differently on the way professionals intervene in family issue: the contextual approach encourages greater social support while the “parent as culpable” approach usually opts for separation of the child from his family.

This suggests a need for greater caution on the part of professionals involved in child protection cases, both in terms of assessing the child and his parents and in terms of formulating the family story and conclusions for the court. In order to avoid bias, it would be helpful if professionals described parental behavior in a more neutral language and adhered more to the facts, limiting their interpretations (Budd, 2005) and avoiding partisan presentations of evidence and the family story (Budd et al., 2013). Budd et al. (2006) propose a contextual-functional model for assessing parental capacity in which parental qualities and characteristics are linked to specific aspects of parental capacity and how these have a positive or negative impact on the child, or how they enable or prevent parents to profit from rehabilitative services. A central question which can help guide the professional decision-making process is to what extent the description of parental functioning portrays an unamenable situation and risk to the child or whether it reflects biased, stereotypical attitudes towards maltreating parents (Azar and Benjet, 1994). Such questioning highlights the importance of professional reflexivity for child protection practice (Taylor and White, 2000). Judges and professionals should be aware of the role of social perceptions and social constructions of reality processes, and the potential for bias when imparting meaning to information about a family.

Greater knowledge on the part of judges about CM as a complex, contextual phenomenon, as well as enabling judges to be exposed to different theoretical frameworks of CM would be helpful. Although mental health experts play an important part in TPR proceedings, it is up to the judges to decide how to incorporate professional knowledge from the social science disciplines to the legal arena. Judges are required to make harsh decisions in TPR cases. If they, and the relevant professional experts, base their decisions on a rich interdisciplinary perspective, they will be better able to achieve a fair balance between the parent's rights and the child's best interests.

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.

References

Azar

Benjet

Fuhrmann

(1995) Child maltreatment and termination of parental rights: Can behavioral research help Solomon? Behavior Therapy 26(2): 599–623.

Azar

Benjet

(1994) A cognitive perspective on ethnicity, race, and termination of parental rights. Law and Human Behavior 18(3): 249–268.

Azar

Lauretti

Loding

(1998) The evaluation of parental fitness in termination of parental rights cases: A functional-contextual perspective. Clinical Child and Family Psychology Review 1(2): 77–100.

Barnum

(1997) A suggested framework for forensic consultation in cases of child abuse and neglect. Journal of the American Academy of Psychiatry and the Law 25(4): 581–593.

Belsky

(1980) Child maltreatment: An ecological integration. American Psychologist 35(4): 320–335.

Belsky

Vondra

(1989) Lessons from child abuse: The determinants of parenting. In: Cicchetti

Carlson

(eds) Child Maltreatment, New York, NY: Cambridge University Press, pp. 153–202.

Ben-David

(2013) Standards for determining parental incapacity: An analysis of court decisions in favour of involuntary adoption in Israel. Child and Family Law Quarterly 25(2): 181–200.

Ben-David

(2011a) Social constructions of reality and narratives of parental incapability in the process of adjudicating the adoption of minors in Israel. Child and Family Social Work 16(2): 402–411.

Ben-David

(2011b) Judicial bias in adjudicating the adoption of minors in Israel. Children and Youth Services Review 33(1): 195–203.

10.

Benjet

Azar

(2003) Evaluating the parental fitness of psychiatrically diagnosed individuals: Advocating a functional–contextual analysis of parenting. Journal of Family Psychology 17(2): 238–251.

11.

Bennett

Feldman

(1981) Reconstructing Reality in the Courtroom: Justice and Judgment in American Culture, New Brunswick, NJ: Rutgers University Press.

12.

Berger

Luckman

(1991) The Social Construction of Reality, London, UK: Penguin Books.

13.

Bolton

Lennings

(2010) Clinical opinions of structured risk assessments for forensic child protection: The development of a clinically relevant device. Children and Youth Services Review 32(10): 1300–1310.

14.

Bruner

(1991) Narrative construction of reality. Critical Inquiry 18(1): 1–21.

15.

Budd

(2001) Assessing parenting competence in child protection cases: A clinical practice model. Clinical Child and Family Psychology Review 4(1): 1–18.

16.

Budd

(2005) Assessing parenting capacity in a child welfare context. Children and Youth Service Review 27(4): 429–444.

17.

Budd

Holdsworth

(1996) Issues in clinical assessment of minimal parenting competence. Journal of Clinical Child Psychology 25(1): 1–14.

18.

Budd

Connell

Clark

(2013) Assessment in a child protection context. In: Otto

Weiner

(eds) Handbook of Psychology—Volume 11, Forensic Psychology, Hoboken, NJ: John Wiley and Sons, pp. 139–171.

19.

Budd

Felix

Sweet

(2006) Evaluating parents in child protection decisions: An innovative court-based clinic model. Professional Psychology: Research and Practice 37(6): 666–675.

20.

Chaffin

Bard

Hecht

(2011) Change trajectories during home-based services with chronic child welfare cases. Child Maltreatment 16(2): 114–125.

21.

Cicchetti

Rizley

(1981) Developmental perspectives on the etiology, intergenerational transmission and sequelae of child maltreatment. New Directions for Child and Adolescent Development 11: 31–55.

22.

Cicchetti

Lynch

(1995) Failures in the expectable environment and their impact on individual development: The case of child maltreatment. In: Cicchetti

Cohen

(eds) Developmental Psychopathology Vol. 2: Risk, Disorder, and Adaptation, Oxford, UK: John Wiley and Sons, pp. 32–71.

23.

Delgado

(1989) Storytelling for oppositionists and others: A plea for narrative. Michigan Law Review 87(8): 2411–2441.

24.

Denzin

(1989) Interpretive Biography, London, UK: Sage.

25.

Denzin

Lincoln

(1994) Handbook of Qualitative Research, London, UK: Sage Publications.

26.

Drake

Jonson-Reid

(2014) Poverty and child maltreatment. In: Korbin

Krugman

(eds) Handbook of Child Maltreatment, New York, NY: Springer, pp. 131–148.

27.

Erickson

(2000) Federal child abuse and neglect policy in the United States since 1974: A review and critique. Criminal Justice Review 25(1): 77–92.

28.

Gambrill

(2005) Decision making in child welfare: Errors and their context. Children and Youth Services Review 27(4): 347–352.

29.

Garbarino

(1977) The human ecology of child maltreatment: A conceptual model for research. Journal of Marriage and the Family 39(4): 721–735.

30.

Goldsmith

Oppenheim

Wanlass

(2004) Separation and reunification: Using attachment theory and research to inform decisions affecting the placements of children in foster care. Juvenile and Family Court Journal 55(2): 1–13.

31.

Grisso

(2003) Evaluating competencies: Forensic assessment and instruments, 2nd edn. New York, NY: Plenum Press.

32.

Guba

Lincoln

(1998) Competing paradigms in qualitative research. In: Denzin

Lincoln

(eds) The Landscape of Qualitative Research: Theories and Issues, Thousand Oaks, CA: Sage Publications, pp. 195–220.

33.

Harnett

(2007) A procedure for assessing parents' capacity for change in child protection cases. Children and Youth Service Review 29(9): 1179–1188.

34.

Herrenkohl

(2007) Examining the overlap and prediction of multiple forms of child maltreatment, stressors, and socioeconomic status: A longitudinal analysis of youth outcomes. Journal of Family Violence 22(7): 553–562.

35.

Jonson-Reid

Emery

Drake

(2010) Understanding chronically reported families. Child Maltreatment 15(4): 271–281.

36.

Kotchick

Forehand

(2002) Putting parenting in perspective: A discussion of the contextual factors that shape parenting practices. Journal of Child and Family Studies 11(3): 255–269.

37.

Lincoln

Guba

(2000) Paradigmatic controversies, contradictions, and emerging confluences. In: Denzin

Lincoln

(eds) Handbook of Qualitative Research, London, UK: Sage Publications, pp. 163–188.

38.

Loman

Siegel

(2012) Effects of anti-poverty services under the differential response approach to child welfare. Children and Youth Services Review 34(9): 1659–1666.

39.

Mass

Nijnatten

(2005) Child protection and the conception of parental responsibility. American Journal of Orthopsychiatry 75(2): 220–229.

40.

Melton

Petrila

Poythress

(1997) Psychological evaluations for the courts: A handbook for mental health professionals and lawyers, 2nd edn. New York, NY: Guilford Press.

41.

Meyer

McWey

McKendrick

(2010) Substance using parents, foster care, and termination of parental rights: The importance of risk factors for legal outcomes. Children and Youth Services Review 32(5): 639–649.

42.

Miller

Crabtree

(1992) Primary care research: A multi method typology and qualitative road map. In: Crabtree

Miller

(eds) Doing Qualitative Research, Newbury Park, CA: Sage Publications, pp. 3–28.

43.

Nikulina

Widom

Czaja

(2011) The role of childhood neglect and childhood poverty in predicting mental health, academic achievement and crime in adulthood. American Journal of Community Psychology 48(3–4): 309–321.

44.

Noonan

Burke

(2005) Termination of parental rights: Which foster care children are affected? The Social Science Journal 42(2): 241–256.

45.

Scheppele

(1989) Foreword: Telling stories. Michigan Law Review 87(8): 2073–2098.

46.

Schwandt

(2000) Three epistemological stances for qualitative inquiry: Interpretivism, hermenentics, and social constructionism. In: Denzin

Lincoln

(eds) Handbook of Qualitative Research, Thousand Oaks, CA: Sage Publications, pp. 189–213.

47.

Schwandt

(2006) Opposition redirected. International Journal of Qualitative Studies in Education 19(6): 803–810.

48.

Sperry

Widom

(2013) Child abuse and neglect, social support, and psychopathology in adulthood: A prospective investigation. Child Abuse and Neglect 37(6): 415–425.

49.

Spilsbury

Korbin

(2013) Social networks and informal social support in protecting children from abuse and neglect. Child Abuse and Neglect 37(S): 8–16.

50.

Strauss

(1987) Qualitative Analysis for Social Scientists, New York, NY: Cambridge University Press.

51.

Taylor

White

(2000) Practicing reflexivity in health and welfare: Making knowledge, Buckingham, Philadelphia: Open University Press.

52.

Tesch

(1990) Qualitative Research Analysis Types and Software Tools, New York, NY: The Palmer Press.

53.

Tuckett

(2005) Applying thematic analysis theory to practice: A researcher's experience. Contemporary Nurse 19(1–2): 75–87.

54.

Wattenberg

Kelley

Kim

(2001) When the rehabilitation idea fails: A study of parental rights termination. Child Welfare 80(4): 269–289.