Mediation or Litigation with Abusing or Neglectful Families: Emerging Roles for Mental Health Counselors

Article excerpt

Differing approaches to adjudicating abusive or neglectful parents have resulted in an expansion of practice opportunities for mental health counselors. In this article we describe the two most prevalent approaches practiced by court systems: (a) the traditional dependency litigation process, and (b) the newly emerging dependency mediation process now being implemented by many court systems. In addition, the potential roles for the mental health counselor participating in these different forms of dependency adjudication process are highlighted.

Child abuse and neglect are some of the most vexing social problems in the United States. In an effort to change the behavior of abusive and neglectful parents, courts now bring legal action against parents accused of endangering their children. This has resulted in a large volume of dependency cases being dealt with through litigation in state court systems. In Florida, for example, 8,900 child dependency petitions were filed in 1997 alone as a result of child abuse investigations, with approximately 1,740 of those cases resulting in termination of parental rights (Davis, 1998). However, this litigational approach to protecting the welfare of children is not without its flaws. Many professionals working in the courts and in social service systems report that the adversarial nature of this process results in many abused children and their families losing faith in the legal system, experiencing a loss of control, and becoming oppositional or openly defiant in following court mandates or protective service directives (Libow, 1993; Saunders, Baker-Jackson, Flicker, & McIsaac, 1991; Shear, 1996). Consequently, a search has begun for less adversarial approaches to helping families improve their capacity to care for their children.

One alternative now gaining popularity in many judicial and social service systems is that of dependency mediation. Because this approach to dependency adjudication creates a structure for negotiation between the parents and the legal and social service systems, it affords a new opportunity for mental health counselors, who judge the traditional adjudication process to be of questionable value in working with these families. In this article we describe these differing approaches to working with abusive or neglectful parents and the expanded practice opportunities emerging from them for mental health counselors. First, the traditional dependency litigation process and its concomitant effects on families and mental health professionals is described. Second, the newly emerging dependency mediation process now being implemented by many court systems is described. Finally, the potential roles for the mental health counselor participating in dependency mediation is highlighted.

THE TRADITIONAL DEPENDENCY ADJUDICATION PROCESS

The dependency adjudication process typically begins when the investigation into a child abuse or neglect report reveals that the child's living environment presents a substantial and immediate danger to the child. Although there is no nationally agreed-upon process of dependency adjudication, most states have enacted statutes that outline similar legal procedures. These procedures depict three distinctive stages of legal decision-making: (1) an exigency stage during which the court provides a shelter hearing to determine if the child is in likely need of immediate state intervention; (2) an investigative stage during which the courts provide an adjudication hearing; and (3) a conclusive stage when the court provides a disposition hearing and treatment plan objectives for the family are solidified. While efforts are being made to accelerate the process (G. Firestone, personal communication, February 9, 2000), on average, the dependency court adjudication transpires over a course of 18 to 24 months and typically results in the family's reunification.

Exigency Stage

When a child is removed from her or his home because of a report of abuse or neglect, a dependency petition is filed by the local child protective services agency within 24 hours. …