Substance using parents, foster care, and termination of parental rights: The importance of risk factors for legal outcomes

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Abstract

Using mixed methods, we compared appellate court foster care cases where parents' rights were terminated to those in which decisions to terminate parental rights were reversed or remanded to better understand the experiences of parents struggling with alcohol and drug use. A content analysis of 60 cases was conducted; 30 cases in which parental rights were terminated, and 30 where decisions to terminate parental rights were overturned or remanded to the lower court. Parents whose rights were terminated were more likely to have mental health problems and experienced incarceration. In addition, when a composite score of risk factors was analyzed, parents whose rights were terminated had significantly more risk factors. For both groups, poverty was an equally common risk factor. Implications include universal assessments for alcohol and drug abuse for parents involved in the child welfare system and timely referrals to appropriate treatment. Further, collaboration between mental health providers, substance use treatment programs, and caseworkers to address the integration of potential risk factors may help promote successful outcomes for parents whose children are in foster care.

Introduction

Among parents whose children are in the foster care system, many struggle with alcohol or other drug use (AOD). Famularo, Kinscherff, and Fenton (1992) found that approximately two-thirds of abuse and neglect cases involved a parent with AOD issues. Previous findings show that as many as 80% of families involved with the child welfare system have difficulties relating to parental substance use (Magura & Laudet, 1996, Young et al., 1998). For parents with AOD problems, it is difficult to isolate the relationship between substance use and maltreatment because of the concomitant economic, social, and physical factors (Rittner & Dozier, 2000). The complexity of such risk factors have long daunted researchers and practitioners, and many have called for more research to help understand the interconnectedness of termination of parental rights (TPR) decisions and contextual factors associated with parenting (Azar et al., 1995, Stein, 2000). Therefore the purpose of the current paper is to compare cases where AOD parents' rights were terminated to those in which the decision to TPR was reversed or remanded in order to better understand factors associated with TPR decisions for appealing AOD parents.

Research has highlighted a strong link between parents with AOD and child maltreatment (Magura & Laudet, 1996, Smith et al., 2007, Young et al., 2007). Despite this association, very few studies have established a causal relationship between parental AOD and later child maltreatment (Chaffin et al., 1996, Young et al., 2007). When combined with homelessness, domestic violence, violence in the community, mental health problems and incarceration, substance use is only one of many concerns for AOD parents (Dore & Doris, 1997). The relationship between AOD and maltreatment may be a reflection of the complex environment in which many children of AOD parents live (Benjet, Azar, & Kuersten-Hogan, 2003).

According to the U.S. Department of Health and Human Services (1999), one-third to two-thirds of families involved in the child welfare system are impacted by substance related disorders. The U.S. General Accounting Office reported that the number of foster children who were placed in substitute care due to parental AOD rose to 78% in 1994 (USGAO, 1994). The same study also indicated that parental AOD was a factor in 78% of children entering foster care in three major urban counties. More recent research by Jones (2005) has found that mothers abused alcohol or drugs in 68% of a child welfare sample, with 37% abusing both alcohol and drugs. Jones utilized retrospective case reviews of substantiated child protective service records in one urban county. Gibbons, Barth, and Martin (submitted for publication) collected data from a national probability sample of children involved in child welfare system. The researchers found that 9.6% of parents had a problem with alcohol or drugs according to case worker reports; however according to assessments completed by parents, 3.9% were alcohol or drug dependent. It is important to note that prevalence estimates of AOD parents involved in child welfare system differ due to sources of information (self-report vs. case worker report), samples of interest (substantiated vs. all cases), and definitions of substance use/abuse/dependence. Although the exact number of substance using parents involved in child welfare is unclear, it is apparent that parental AOD and the foster care systems are intertwined.

Termination of parental rights (TPR) decisions are among the most important decisions made within the legal system (Azar et al., 1995). The verdict of TPR is “an extreme action initiated by the state to irrevocably severe the legal bond between parent and child” (Wattenberg, Kelley, & Kim, 2001, p. 406). From 2002 to 2007, over 469,000 parents whose children were in foster care lost their parental rights and these numbers are currently rising in the United States (U.S. Department of Health and Human Services, 2008). When considering termination of parental rights in foster care cases, judges must reflect on both “clear and convincing evidence” as well as what is in the “best interests of the child” (Benjet et al., 2003, McWey et al., 2008). Finding a balance between parental rights and best interests of children can be complicated, especially given the many risk factors involved in child maltreatment cases (Coulton, Korbin, & Chow, 1995). These other factors can include incarceration, mental health difficulties, poverty, and substance use.

Typically, child welfare agencies are charged with ascertaining the capabilities of parents who are at risk of child maltreatment or who have abused or neglected their children. In doing so, child welfare professionals must account for parental functioning that warrants the loss of parental rights (Risley-Curtiss, Stromwall, Hunt, & Teska, 2004). In the past, the mere presence of certain conditions (mental illness, substance abuse) would be grounds for termination of parental rights (Grisso, 2003). Recently, it has been required that these conditions must be shown, by expert testimony or state's evidence in court proceedings, to drastically affect the child's functioning. In order to TPR, the evidence must be “clear and convincing” (Benjet et al., 2003) that the consequences of allowing the parent–child relationship to continue are more severe than the consequences of termination of parental rights (Stein, 2000).

Due to the high prevalence of parental AOD, it is essential to investigate outcomes once families become involved in the child welfare system. Previous research has found that for families who already have been investigated for possible child abuse or neglect, parental substance use significantly predicts future maltreatment re-reports (Wolock & Magura, 1996, Wolock et al., 2001). Smith and Testa (2002) found that substance exposed infants are more likely to have subsequent alleged child and protective services (CPS) reports. Parental substance abuse is also related to higher rates of maltreatment substantiation in child welfare cases (Sun, Shillington, Hohman, & Jones, 2001), higher rates of placements in out-of-home care (Maluccio & Ainsworth, 2003), and more transitions while in foster care (Smith et al., 2007).

Currently there are no known studies that have explored factors related to AOD parents appealing for the return of their parental rights. Findings from one study indicated that substance abuse was the leading problem resulting in TPR judgments for mothers (Wattenberg et al., 2001). Wattenberg and colleagues focused on initial TPR decisions and did not investigate within-group differences among parents with AOD; therefore it is unknown which factors are most salient when deciding to TPR or reunify a family where AOD is an issue. Karoll and Poertner (2003) determined which factors were deemed important to judges, case workers, and substance abuse counselors during the recovery and reunification process of mothers with AOD problems; however this study did not ascertain how important these factors were in reunification or legal outcomes for AOD parents. The current study will expand the body of literature by examining within-group differences of AOD parents who are appealing decisions to TPR.

Previous researchers have indicated that a complex combination of risk factors impact AOD parents involved in the foster care system (Benjet et al., 2003, Rittner & Dozier, 2000). Specific risk factors such as poverty, domestic violence, mental health issues, and incarceration often occur along with parental AOD use. In addition, the combination of these risk factors has been connected to negative outcomes for parents with AOD problems. In order to tease out this complexity, further exploration of the relationship between risk factors, AOD parents, and TPR is needed.

According to Dyk (2004) lower income and working-poor families are exposed to additional stressors and have fewer resources, which may obstruct parents' ability to care for their children and increase risk of placement in foster care. Parental AOD problems have also been connected with poverty. Poverty is considered a major component of the social environments of AOD parents, and it has been postulated that researchers should consider poverty in addition to substance use when exploring child welfare outcomes (Hampton, Senatore, & Gullotta, 1998). The connection between maltreatment, poverty, and foster care has long been established (i.e. Drake & Pandey, 1996, Jenkins & Diamond, 1985, Jones, 1998, Ondersma, 2002, Pelton, 1985, Pelton, 1987). Jones (1998), for example, found that models with poverty and deprivation accurately predict about 64% of cases which required reentry into the foster care system after reunification occurred. In addition, neglect is the leading reason for the placement of children in foster care (National Data Archive on Child Abuse and Neglect, 2005). Due to the strong association between child maltreatment, parental AOD, and involvement in foster care, poverty is an important risk factor to include when investigating termination of parental rights.

According to previous research, domestic violence places children at greater risk for child abuse, neglect, and possibly death (Mills et al., 2000, Stover, 2005). Therefore, families who experience domestic violence and child maltreatment may be more likely to become involved with the foster care system. Kohl, Edleson, English, and Barth (2005) found that families with active domestic violence were more likely to have substantiated cases of maltreatment. The same study also found that domestic violence, along with other cumulative risk factors, was associated with increased placement in out-of-home care. Researchers have also established that domestic violence is common in the lives of substance users (Amaro et al., 1990, Finkelstein, 1994, Schuler & Nair, 2001). Domestic violence also can be associated with the termination of parental rights for both the victim and the perpetrator (Lemon, 1999). Due to the impact that domestic violence has on foster care involvement, it is essential to determine how domestic violence might influence AOD parents who are appealing termination of parental rights.

Parents with AOD frequently have a variety of mental health concerns (Young et al., 1998) and mental health conditions have been linked to increased risk for maltreatment (Chaffin et al., 1996, Dinwiddie & Bucholz, 1993, Famularo et al., 1992, Sidebotham et al., 2001). Researchers have also indicated that parents in the foster care system who have mental health problems are at greater risk for termination of parental rights (Azar et al., 1995, Zuravin & DePanfilis, 1997). In the substance use literature, comorbidity between substance related disorders and other mental health problems has long been established (Kessler et al., 1997, Regier et al., 1990). De Bellis et al. (2001) found that comorbidity of two or more psychiatric disorders (including substance related disorders) predicted differences between membership in a maltreatment group and a sociodemographically matched non-maltreatment group. Therefore, appealing parents with AOD who also have mental health concerns might be at an additional risk for termination of parental rights due to the comorbidity between mental health and substance use issues.

Children of incarcerated parents have become increasingly involved in the foster care system (Johnson & Waldfogel, 2002). Incarceration of a parent has been connected with an increased likelihood of TPR, especially if the incarcerated parent is the mother (Gentry, 1995, Gentry, 1998). Although incarceration cannot be used as the sole reason for termination of parental rights (Seymour & Finney-Hairston, 2001), those who are incarcerated often lose parental rights due to deficiencies in permanency planning procedures and lack of specific state policies or guidelines for placing children (Johnson & Waldfogel, 2002). Approximately 75% of inmates, for example, had a lifetime prevalence of a substance related disorder, with over 50% diagnosed with substance abuse or dependence during the 30 days prior to incarceration (Peters, Greenbaum, Edens, Carter, & Ortiz, 1998). Due to the strong connection with parental AOD, incarceration should be considered a fundamental risk factor in possible termination of parental rights.

For parents with AOD problems it is essential to consider how the combination of several risk factors relates to child maltreatment and other outcomes. Among substance using women, those with increased numbers of risk factors (such as homelessness, domestic violence, incarceration, psychiatric problems) have significantly higher levels of child abuse potential and are more at risk for poor parenting (Kettinger et al., 2000, Nair et al., 2003). Cash and Wilke (2003) found that increased numbers of risk factors were significant predictors of the odds to engage in neglectful behavior. Scannapieco and Connell-Carrick (2007) found that substantiated cases of maltreatment for AOD parents were more likely to involve an impoverished home environment, more dangerous living conditions, and more stressors in the home. Research indicates that additional risk factors are an important consideration for parents with AOD issues and child maltreatment. However, no study has established how additional risk factors relate to AOD parents appealing termination of parental rights.

Another component which influences parents with AOD is level of compliance with court-ordered alcohol or drug assessments and/or treatment. Overall compliance with substance abuse assessments or treatment within the child welfare population is generally low. Famularo, Kinscherff, Bunshaft, Spivak, and Fenton (1989) found that despite the high percentage of cases court-ordered for substance abuse assessments (86%), only 10 to 39% of the parents were compliant with these assessments. Some research has found that among parents with AOD who comply with court-ordered treatment, there is a greater chance that they will maintain parental rights (Atkinson & Butler, 1996, Green, Rockhill & Furrer, 2007, Gregoire & Shultz, 2001, Smith, 2003). However, other research does not support that compliance for parents with AOD was related to reunification or maintaining parental rights (Gregoire & Shultz, 2001, Rittner & Dozier, 2000).

One difficulty associated with understanding treatment compliance lies in how it is defined and measured, potentially contributing to mixed findings in the literature. In addition, being compliant with assessment and treatment does not imply that sobriety is maintained or parenting behaviors are improved. Benjet et al. (2003) note that including current AOD use and treatment compliance as factors in child welfare decision-making does not adequately assess whether the parent has made progress in developing appropriate parenting skills. To date, no study has investigated whether compliance impacts a parent with AOD in the appeals process. An examination of treatment-related compliance vs. non-compliance and its influence on decisions made in the appeals process will fill this gap in the literature.

Section snippets

Purpose

Despite indications that substance use and other risk factors are related to maltreatment and involvement in the foster care system, it is unclear how and to what extent these variables relate to decisions to terminate parental rights. The purpose of this study was to compare cases under appeal involving parental AOD where parents' rights were terminated to those in which decisions to TPR were reversed or remanded. The primary goal was to determine the similarities and differences between the

Method

Using the LEXIS–NEXIS database, an electronic database of legal articles and court cases, we extracted appellate court case records from four states: Florida, Georgia, Louisiana, and Virginia. Studying court documents provides some insight into factors considered during the decision process and legal reasons that led to the termination of parents' rights (Allen & Golubock, 1985). Court records include case notes and testimony of parents, caseworkers, therapists, and other professionals. It is

Quantitative results

As seen in Table 2, there were a number of factors that distinguished the TPR from the NTPR group. Specifically, with regard to risk factors, if the parent had a mental health issue in addition to substance use problems, the judicial decision was more likely to result in TPR. In addition, if the parent was incarcerated at any point during their involvement with child and protective services (CPS), the judicial decision was also more likely to be TPR. Lastly, we grouped the number of risks into

Discussion

Research strongly indicates that parental substance use and child maltreatment are linked. Further, a large proportion of parents involved with the child welfare system have substance use problems. One study indicates that substance abuse was the leading problem associated with judgments to terminate the parental rights of mothers (Wattenberg et al., 2001). Termination of parental rights is a serious consequence for parents involved with the child welfare system. However, very little is known

Conclusions

When comparing factors associated with contested cases resulting in TPR to those in which TPR decisions were overturned or remanded, notable similarities and differences emerged. Poverty was a pervasive theme for both groups. Further, both groups involved non-compliance with substance abuse treatment to some extent. Additional mental health issues, incarceration, and total number of risks were factors distinguishing the TPR group from the NTPR group. If reunification is a viable option for

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