Forensic Psych

Ethical Implications of Ultimate Opinions in TPR Evaluations

Abstract

The focus of termination of parental rights (TPR) evaluations is the best interest of the child (Barone, Weitz, & Witt, 2005). However, this automatically limits the evaluator’s ability to be impartial and fair. An evaluator must follow ethical guidelines that declare that he or she must practice impartiality and be fair and accurate according to EPPCC Guidelines 2.01, 2.04, and 9.01, as well as SGFP Guidelines 1.02 and 4.02.02 (American Psychological Association, 2010; American Psychology-Law Society, 2011). This ethical dilemma of bias is an inherent part of TPR cases. There is often emotional decision-making involved, and testimony should be based on an adequate scientific foundation with valid and reliable principles to back it up, not emotions alone (APA, 2010; AP-LS, 2011; Rogers & Ewing, 1989). Ultimate testimony is influenced by this bias and emotion, and is therefore problematic, but penultimate testimony does not generalize as much (Allman & Woodward, 2008; Rogers & Ewing, 1989; Slobogin, 1989). This will ultimately leave less room for bias and more room for objectivity, and will therefore allow the evaluator to adhere to the ethical guidelines and remain impartial and fair to all parties involved in termination of parental rights cases (Rogers & Ewing, 2003; Slobogin, 1989).

Keywords: termination of parental rights, parental fitness, ethics, forensic evaluation

Ethical Implications of Ultimate Opinions in TPR EvaluationsParents with Child on Beach

Terminating the rights of a parent is a serious legal step taken only after several unsuccessful interventions or when maltreatment is still occurring (Barone, Weitz, & Witt, 2005). Termination of one’s parental rights “…denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of, the child” (Santosky v. Kramer 1982, 749). Oftentimes in cases where parental rights could be terminated, a forensic psychologist or mental health professional may evaluate the parent in question. The goal of the evaluator is to develop an opinion about whether or not the child can safely return to the home and if the parent can retain their right to care for the child (Barone et al., 2005). While this has been a practice for many years, there are many ethical considerations still to be made. The evaluator must develop an opinion, but there is no consensus in the field whether or not it is ethically acceptable to express an ultimate opinion (Melton, Petrila, Poythress, & Slobogin, 2007; Slobogin, 1989). Regardless, an opinion of some sort will be made and shared with the court, whether it is ultimate or penultimate. Expressing an ultimate opinion may bias the trier of fact more than a expressing a penultimate opinion. The author will argue that the nature of termination evaluations is too emotional for ultimate opinions to be expressed in court because the inherently emotional aspects and potential for partiality and inaccuracy in these cases may bias the evaluator’s ultimate opinion.

Ethical Guidelines and Implications

The American Psychological Association (APA) has released ethical guidelines in order to guide the practice of all mental health professionals called the Ethical Principles of Psychologists and Code of Conduct (EPPCC) (American Psychological Association, 2010). The American Psychology-Law Society (AP-LS) also has specialty guidelines for forensic psychology, known as the Specialty Guidelines for Forensic Psychology, or SGFP (American Psychology-Law Society, 2011). Forensic psychologists use both of these guidelines to help guide their interactions with clients, including those clients who may have their parental rights terminated. Upon examination of these guidelines in the context of testimony regarding termination of parental rights (TPR), one may note that there are some ethical issues that one must consider and address with caution. Both sets of guidelines require that the evaluator must not practice impartiality, must protect their client’s rights, and may only testify about issues that are supported by an adequate amount of evidence or foundation (American Psychological Association, 2010; American Psychology-Law Society, 2011). TPR evaluators must develop two main opinions, namely, whether the parent’s rights should be terminated and, if those rights are terminated, where the children should be permanently placed (Barone, Weitz, & Witt, 2005). In order to develop these opinions, the evaluator will focus on parental fitness as well as the child’s bonding attachment profile.

In TPR evaluations, the goal is to focus on the best interest of the child (Barone, Weitz, & Witt, 2005). In 1997, Congress created a list of “fast-track” criteria for termination of parental rights in the Adoption and Safe Families Act (Vesneski, 2011). Essentially this list includes 7 items that automatically qualify a parent for filing for TPR without making any “reasonable efforts” to unify the child and the parent. These items include: (a) murder or manslaughter of another child, (b) assault of a child resulting in serious bodily injury of that child, (c) having parental rights of another child terminated, (d) abandonment of the child, (e) torture of the child, (f) sexual abuse of the child, or (g) chronically abusing the child. Most states, according to Vesneski (2011), have an average of 14 criteria for terminating parental rights. These criteria clearly suggest that the best interest of the child is indeed the priority in TPR cases. Children, of course, deserve a healthy and safe environment to live in. However, it is not ethically permissible for forensic evaluators to show partiality to any individual according to EPPCC Guideline 2.01 and SGFP Guideline 1.02 (APA, 2010; AP-LS, 2011). The parent is the client being evaluated by the forensic evaluator (Barone, Weitz, & Witt, 2005). However, the evaluator must go into an evaluation with the best interest of the child in mind while evaluating the parent who is the client. This situation, while morally justified, may cause an ethical dilemma for the forensic evaluator. TPR evaluations allow for some sort of partiality to develop in favor of the child.

TerminationThe evaluator must consider whether or not terminating the parent’s rights is harmful or beneficial to the child, not the parent (Barone, Weitz, & Witt, 2005). However, they have a duty to protect the parent they are evaluating as well, e.g., EPPCC Guideline 2.01 (APA, 2010). As this is the case, there is again a potential for some partiality in favor of the child. SGFP Guideline 1.02 and EPPCC Guideline 2.01 declare that a forensic psychologist is not to show partiality to any particular individual (APA, 2010; AP-LS, 2011). Further adding to this ethical issue of partiality is the fact that only in extremely serious cases does someone file for termination of parental rights (Azar, Lauretti, & Loding, 1998). For example, in order to be considered for termination, a parent’s level of unfitness must represent a significant risk to the child and must be “unamenable to intervention” (pp. 78). This level of unfitness may bias the evaluator against the parent. Oftentimes there is a certain societal expectation about how to parent a child. According to Azar and Benjet (1994), if

…people’s behavior fails to fit our schemas, we are likely to attribute fault to something internal to the person. If the schemas one holds are inappropriate, overly narrow, or inflexible, bias can be introduced into judgments made about others, resulting in faulty decision making. (pp. 251)

These parents are often abusing, abandoning, or otherwise harming this child (Vesneski, 2011). This alone is likely to have a biasing effect in that it is socially unacceptable to harm a child (Azar & Benjet, 1994). An evaluator is likely going to have similar expectations for parental behavior, and parents involved in TPR cases are not likely going to fit into this schema.

In addition, the parents who are involved in TPR evaluations also tend to be economically and educationally disadvantaged, and have numerous other issues with things such as substance abuse or psychiatric issues (Azar, Lauretti, & Loding, 1998). These characteristics may have a biasing effect on others, including mental health professionals and evaluators. Evaluators are not “…immune to the influence of personal values or beliefs” (Azar & Benjet, 1994, pp. 252). In fact, SGFP Guideline 2.07 states that forensic evaluators must understand that their “…own cultures, attitudes, values, beliefs, opinions, or biases may affect their ability to practice in a competent and impartial manner” (pp. 5), and they need to attempt to limit the effects of these issues or limit their participation in the case (APA, 2010; AP-LS, 2011). However, if the evaluator is not accustomed to a particular way of life or a particular culture, such as one that is economically and educationally disadvantaged and/or harms their children, this will likely result in “…impaired communication flow and suboptimal forensic evaluations” (Silva, Leong, & Weinstock, 2003, pp. 634). There appears to be many ways in which an evaluator may be biased against the parent in a TPR evaluation and in favor of the child. SGFP Guideline 1.02 states that the forensic evaluator must strive for impartiality, accuracy, and fairness (AP-LS, 2011). Other guidelines (e.g., EPPCC Standard 3.01; SGFP Guideline 2.08) also state that forensic evaluators do not unfairly discriminate against people of another culture, race, ethnicity, or socioeconomic status and should, again, attempt to limit the effects of these issues or limit their participation in the case if they feel that they may be biased or discriminatory (APA, 2010; AP-LS, 2011). In the case of a TPR evaluation, maintaining impartiality, accuracy, and fairness when developing an ultimate opinion is rather difficult. The evaluator is likely going to be partial to the child due to the aforementioned reasons, and this may affect his or her accuracy and fairness when expressing an ultimate opinion regarding the case. Said another way, this partiality is likely to bias the psychologist’s testimony in court. If the psychologist is biased in favor of the child and against the parent in any way, he or she may find that the parent is unfit to care for the child without an adequate scientific foundation. Forensic psychologists are only to testify on issues that are adequately founded on scientific evidence, as well as principles that are valid and reliable and applied to the case in an appropriate manner according to EPPCC Guidelines 2.04 and 9.01, and SGFP Guideline 4.02.02 (APA, 2010; AP-LS, 2011).

TPR cases would likely involve not only bias, but many emotions as well. Emotions and biases will make it difficult to develop an objective opinion, especially if that opinion is an ultimate opinion. Rogers and Ewing (1989) state that expert testimony should be based on empiricism, not emotionalism, which means that testimony should be based on a scientific foundation rather than “emotion-based speculation” (pp. 372). When one considers the seriousness of the situations that lead to TPR cases, one could certainly suggest that they are inherently emotional. It is difficult to ethically testify on emotionally-based ultimate opinions for numerous reasons. Experts in the field have suggested that ultimate opinion testimony is based in common sense and one’s own moral opinions rather than being based on scientific evidence (Azar, Lauretti, & Loding, 1998; Melton, Petrila, Poythress, & Slobogin, 2007; Slobogin, 1989). Research has shown that “…many paradigmatic examples of moral intuition involve neural areas that are associated with emotional processing, and that this processing plays a causal role in generating intuitions” (Allman & Woodward, 2008, pp. 166). What this seems to suggest in the case of TPR evaluations is that the inherent emotionality of this opinion makes it inappropriate to testify about in court because it is not based on science, but rather moral intuition that is based on emotion. The potential risk for a forensic psychologist to become partial to the child is too high and the psychologist must only testify on evidence that is scientifically founded rather than involving their emotions and testifying about their own ultimate opinion. This goes against the ethical guidelines that forensic psychologists are called upon to uphold. SGFP Guideline 2.05 requires that testimony be based on an adequate scientific foundation rather than unscientific foundations such as emotion (APA, 2010; AP-LS, 2011). While emotions and moral intuitions are indeed part of each human, there are better methods for developing an opinion to share in court that is more objective.

Ultimate versus Penultimate Opinions

A forensic psychologist’s opinions are developed to aid the court’s decision (Azar, Lauretti, & Loding, 1998). Ultimately, the trier of the fact will decide on the case. However, there are very few guidelines for the trier of the fact to determine if the evaluation was done competently or if it is useful (Kalich, Carmichael, Masson, & Blacker, 2007). While a forensic evaluator’s testimony is indeed very much relied upon and quite helpful to the trier of the fact, courts often “…afford great deference to ‘expert’ opinions on the ultimate legal issues at hand…” and those opinions may be Termination of Parental Rightsbiased or inaccurate as discussed previously (Bogacki & Weiss, 2007, pp. 40). Due to this deference, the evaluator must act with care. As a forensic evaluator, one must practice impartiality, fairness, and must testify about matters that are founded in scientific principles and are within the bounds of one’s professional competence as stated by EPPCC Guidelines 2.01, 2.04, and 9.01, as well as SGFP Guidelines 1.02 and 4.02.02 (APA, 2010; AP-LS, 2011). Essentially, evaluators need to be objective, especially in TPR cases. The purpose of a forensic evaluation in TPR cases is to collect facts in the case that will help determine whether or not the parent is fit to care for the child and where the child should be permanently placed (Barone, Weitz, & Witt, 2005). This is generally done by gathering collateral information such as documents, records, and interviews with others involved in the lives of both the parent and child, as well as interviewing and observing the parent and child themselves. There are guidelines provided by Congress as well as guidelines by individual states for what criteria the parent must meet to have their rights terminated (Vesneski, 2011). These guidelines are likely going to provide the evaluator with an objective starting point, however, as discussed previously, the “… interpretations of these events may be biased by the observers’ opinion of the parent” (Azar, Lauretti, & Loding, 1998, pp. 92). An evaluator must be aware of the contents of these statutory and case laws, as well as his or her own personal biases and issues, in order to make ethical, appropriate, factually-based decisions regarding the termination of parental rights (Barone et al., 2005). An evaluator should not share opinions that go beyond the scope of these facts, or that are biased, because anything beyond the facts would violate ethical guidelines such as EPPCC Guidelines 2.01, 2.04, and 9.01, and SGFP Guidelines 1.02 and 4.02.02 (APA, 2010; AP-LS, 2011). This would suggest that an evaluator should not share an ultimate opinion, but rather a penultimate opinion instead.

If giving a penultimate opinion in court, the evaluator would testify about the collateral information such as documents, records, and interviews with others involved in the lives of both the parent and child, as well as discussing the interview and observance of the parent and child. In ultimate opinion testimony, however, the evaluator would go one step further. A penultimate opinion only addresses the elements of the legal standard while an ultimate opinion directly addresses the legal standard (Rogers & Ewing, 2003; Slobogin, 1989). Slobogin (1989) suggests that ultimate opinions over-generalize in comparison to penultimate opinions by directly addressing the standard and stating an opinion regarding the parent’s fitness to care for the child. This is problematic because there is such a potential for bias and partiality. An evaluator should not testify about this kind of opinion when he or she may be biased and/or partial to one individual and may have made that opinion based on emotion rather than according to the standards in the ethical guidelines, such as EPPCC Guidelines 2.01, 2.04, and 9.01, as well as SGFP Guidelines 1.02 and 4.02.02 (APA, 2010; AP-LS, 2011; Azar, Lauretti, & Loding, 1998; Barone, Weitz, & Witt, 2005; Bogacki & Weiss, 2007). A testimony regarding the elements of the legal standard, a penultimate opinion, would be much more objective because it leaves out the generalization and reports what is based on an adequate foundation according to EPPCC Guidelines 2.04 and 9.01, and SGFP Guidelines 4.02.02 (APA, 2010; AP-LS, 2011; Slobogin, 1998). A forensic evaluator must testify on areas within the areas and boundaries of their competence according to EPPCC Guideline 2.01 (APA, 2010; AP-LS, 2011). As an ultimate opinion is an over-generalization of the facts of the case, it is not within the boundaries of the evaluator’s competence to testify to anything beyond the facts of the TPR case, e.g., EPPCC Guideline 2.01 (APA, 2010; AP-LS, 2011; Slobogin, 1998).

The field debates about whether or not the evaluator should express these ultimate opinions in front of the court or if a penultimate opinion should be expressed instead (American Psychological Association, 2011; Budd & Springman, 2011; Melton, Petrila, Poythress, & Slobogin, 2007; Slobogin, 1989). Oftentimes, courts request to hear an ultimate opinion from the evaluator, and so they must give one (Melton, Petrila, Poythress, & Slobogin, 2007). However, no consensus has been reached in the field at this point in time and there is not enough research to support the expression of ultimate opinions in TPR cases if it can be avoided. According to Budd and Springman (2011), there are

…limitations in the social science knowledge base regarding issues such as what constitutes ‘good enough’ parenting, how to weigh parenting risks against strengths, and how to apply theoretical concepts of children’s best interests to the complex and dynamic circumstances of individual cases. (pp. 35)

This lack of research in these areas will likely hinder the evaluator’s ability to testify appropriately about a TPR case due to an inadequate scientific foundation, therefore breaking key ethical guidelines, e.g., EPPCC Guidelines 2.04 and 9.01, as well as SGFP Guideline 4.02.02 (APA, 2010; AP-LS, 2011). However, this will not necessarily hinder the evaluator’s ability to testify about the components of the legal standard, or what the author refers to as the facts of the case or a penultimate opinion. The evaluator could address the statutory requirements while avoiding the expression of ultimate opinions that declare whether or not the individual is fit to be a parent. This would limit the effects of any bias in the case as well as limit the evaluator’s participation, and would therefore give the court a more objective opinion.

Conclusion

            Research has found that clinicians always presented direct recommendations in cases where there were “statute-based legal issues” such as TPR cases (Budd & Springman, 2011, pp. 44). However, this is problematic because there is a potential that the evaluator will be biased against the parent and in favor of the child (Azar & Benjet, 1994; Barone, Weitz, & Witt, 2005; Silva, Leong, & Weinstock, 2003; Vesneski, 2011). The focus of TPR evaluations is the best interest of the child (Barone, Weitz, & Witt, 2005). This automatically limits the evaluator’s ability to be impartial and fair. An evaluator must follow ethical guidelines that declare that he or she must practice impartiality and be fair and accurate according to EPPCC Guidelines 2.01, 2.04, and 9.01, and SGFP Guidelines 1.02 and 4.02.02 (APA, 2010; AP-LS, 2011). This ethical dilemma of bias is an inherent part of TPR cases. There is often emotional decision-making involved, and testimony should be based on an adequate scientific foundation with valid and reliable principles to back it up, not emotions alone, as described in EPPCC Guidelines 2.04 and 9.01, and SGFP Guideline 4.02.02 (APA, 2010; AP-LS, 2011; Rogers & Ewing, 1989;). Ultimate testimony is influenced by this bias and emotion, and is therefore problematic, but penultimate testimony does not generalize as much (Allman & Woodward, 2008; Rogers & Ewing, 1989; Slobogin, 1989). This will ultimately leave less room for bias and more room for objectivity, and will therefore allow the evaluator to adhere to the ethical guidelines and remain impartial and fair to all parties involved in termination of parental rights cases (Rogers & Ewing, 2003; Slobogin, 1989). In order to be more informed and accurate, more research needs to be done in this area of the field in order to determine more about parenting and parental rights (Budd & Springman, 2011). This will also help the field be able to come to a consensus regarding ultimate and penultimate decisions, but ultimate opinions should not currently be expressed in court. Penultimate opinions should be expressed in their place in order to maintain objectivity on the part of the evaluator and to help the court remain objective as well.

References

Allman, J., & Woodward, J. (2008). What are moral intuitions and why should we care about them? A neurobiological perspective. Philosophical Issues, 18, 164-185.

American Psychological Association (2010). Ethical principles of psychologists and code of conduct. Retrieved from http://www.apa.org/ethics/code/index.aspx

American Psychological Association (2011). Guidelines for psychological evaluations in child protection matters. Retrieved from http://www.apapracticecentral.org/update/2011/03-17/child-protection.pdf

American Psychology-Law Society (2011). Specialty guidelines for forensic psychology. Retrieved from http://www.ap-ls.org/aboutpsychlaw/SGFP_Final_Approved_2011.pdf

Azar, S. T., & Benjet, C. L. (1994). A cognitive perspective on ethnicity, race, and termination of parental rights. Law and Human Behavior, 18(3), 249-268.

Azar, S. T., Lauretti, A. F., & Loding, B. V. (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.

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Melton, G., Petrila, J., Poythress, N., & Slobogin, C. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (third edition). New York: Guilford.

Kalich, L., Carmichael, B. D., Masson, T., & Blacker, D. (2007). Evaluating the evaluator: Guidelines for legal professionals in assessing the competency of evaluations in termination of parental rights cases. The Journal of Psychiatry & Law, 35, 365-397.

Rogers, R., & Ewing, C. P. (1989). Ultimate opinion proscriptions: A cosmetic fix and a plea for empiricism. Law and Human Behavior, 13(4), 357-374.

Rogers, R., & Ewing, C. P. (2003). The prohibition of ultimate opinions: A misguided enterprise. Journal of Forensic Psychology Practice, 3(3), 65-75. doi: 10.1300/J158v03n03_04

Santosky v. Kramer, 455 U.S. 745 (1982). Retrieved from http://supreme.justia.com/cases/federal/us/455/745/case.html

Silva, J. A., Leong, G. B., & Weinstock, R. (2003). Culture and ethnicity. In R. Rosner (Ed.), Principles and Practice of Forensic Psychiatry (631-637). Boca Raton, FL: CRC Press.

Slobogin, C. (1989). The “ultimate issue” issue. Behavioral Sciences & the Law, 7(2), 259-266.

Vesneski, W. (2011). State law and the termination of parental rights. Family Court Review, 49(2), 364-378.

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