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National Association of Adult Survivors of Child Abuse
National Association of Adult Survivors of Child Abuse
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Foster Care as a Mitigating Circumstance in Criminal Proceedings
by DANIEL POLLACK,
KHAYA EISENBERG,
AMANDA SUNDARSINGH
(Foster Care as a Mitigating Circumstance.pdf - includes all footnotes, references, etc)
It is the judge who can appreciate the full complexity of the offender and his crime, and no prescriptive set of laws can appreciate the subtleties in determining the punishment that justice demands. If the 600-plus pages of the most recent set of sentencing guidelines have taught us anything, it is that punishment cannot be reduced to an algorithm.
The sensationalism of many criminal trials, especially those of a capital nature, often result from the aggravating circumstances impacting the victim. Conversely, the mitigating circumstances that affect the accused‘s criminality rarely grab headlines. During the sentencing phase of a criminal trial, mitigating factors may justify leniency or otherwise serve to lessen the sentence for the crime with which the accused has been charged. Whether a particular factor will be considered a mitigating one will depend upon the particular facts of the case. The federal |
Sentencing Reform Act of 1984 provides guidance in this process, but each state maintains the discretion to dictate its own criteria within the confines of constitutional constructs. The United States Supreme Court has increasingly addressed the importance of clarity in the presentation and consideration of mitigating evidence, which is integral to the trial and sentencing of an accused.
Should a history of foster care involvement serve as a legitimate mitigating circumstance for a defendant in a criminal trial? Although this article does not provide a definitive answer, it does attempt to provide a better understanding of the foster care experience to those contemplating the question. Part I provides a general introduction to the topic of foster care. Part II discusses different types of foster care. Part III discusses the impact of foster care on children. Finally, Part IV offers a brief conclusion.
I. GENERAL PURPOSE AND PARAMETERS OF FOSTER CARE
Foster care is defined as the placement of a child into a supervised environment, other than that of the biological family, as directed by social service agencies or the juvenile justice system. According to the most recent report released by the Adoption and Foster Care Analysis and Reporting System, there are more than 400,000 children in foster care across the United States. "Foster care placement is most often precipitated by stressful family circumstances that endanger a child and/or deem the biological parent(s) unable or unavailable to adequately care for the child. These include child abuse and neglect, parental substance abuse, and family homelessness." In addition, some children are placed as a result of other forms of parental dysfunction, parental death, or because of child mental health service needs that the biological family cannot afford.
The effects of abusive, neglectful and other traumatic experiences have been linked to the development of a number of emotional/mental, social/behavioral, and relational problems, including—but not limited to—anxiety, depression, substance abuse, and attachment issues. Not surprisingly, research suggests that significant emotional or behavioral difficulties affect as many as 80% of children in foster care compared to only 16% to 21% of children in the general population. Relative to children from similar socioeconomic and demographic backgrounds, foster children remain at a significantly greater risk for psychological disorders. The impact of these disorders is considerable. As young adults, foster youth with untreated mental disorders can find themselves homeless, incarcerated, or confined to psychiatric facilities.
Foster care is a heterogeneous experience influenced by the specific personal characteristics of each child. Age is one such factor, as children entering foster care at a younger age appear more amenable to new living situations than older children. Older children may have developed survival strategies that were adaptive in their families of origin, but prove to be maladaptive in new environments, hampering their ability to form new relationships with both adults and peers. This problem is compounded by the fact that the assessment and service delivery approaches used by today‘s child welfare systems were developed for very young or school-age children. These approaches are typically applied to all young people in foster care, including teens and young adults whose needs are considerably different.
The element of race also factors into a child‘s experience in foster care. African American children are more likely to stay in foster care longer and experience more foster care placements; they are less likely to receive adequate services while in care or be adopted or reunified with their families. Given these longer stays in foster care, African American children may be more vulnerable to the risk factors associated with foster placement.
Other factors affecting the foster care experience include the type of abuse experienced prior to placement, length of time in foster care, gender, and, critically, the type of placement. Foster children may be placed in a variety of supervised settings including foster family care, group homes, and other forms of residential treatment.
II. TYPES OF FOSTER CARE PLACEMENTS
A. Traditional Foster Homes
Traditional foster family care appears to yield better outcomes than residential care; unfortunately, difficulties recruiting and retaining foster parents have limited the availability of this option:
| Broad social and economic changes, such as larger numbers of women working out of the home and an increase in single parent families, have made the recruitment of foster parents more challenging. Additionally, although many foster parents leave fostering because they age and retire, many others leave because they are dissatisfied with their experiences as foster parents. |
The shortage of willing foster parents poses many difficulties. One result of the smaller pool of foster parents is the reduced ability to match foster parents and foster child with respect to certain characteristics. For example, "[c]hildren from families with limited English proficiency are frequently placed with English-only families. This can create significant cultural confusion for the child during placement ..." The shortage of foster parents also increases the risk of "stretching" (i.e., convincing foster parents to accept children for whom they may feel uncomfortable caring). One study on the adoption of older children found "a tendency for stretching to be associated with placement disruption." It is logical to assume that the same would be true for foster care.
B. Kinship Care
Given the increasing number of children placed in foster care and the corresponding decrease in available foster homes, many child welfare workers choose to place foster children with caretakers known to the child rather than seeking out a designated foster family. This option is known as kinship care and is a rapidly growing trend. Although children are assumed to be better off when placed with relatives, research has produced mixed results.
Many placement specialists prefer kinship care to non-relative family care, citing benefits such as eliminating the trauma and psychological damage associated with placing children with strangers, maintaining the children‘s connection with their cultural heritage and traditions, and preserving caregiving routines. Other benefits include greater satisfaction reported by the children, potentially reduced likelihood of re-victimization, and significantly lower likelihood of experiencing multiple placements. In fact, compared to children living in foster-care placements, children placed in kinship homes have been found to show lower levels of internalizing and externalizing behaviors, although not without inconsistencies.
Despite these observations, some researchers have voiced concerns about placing children within the same family context that produced parents who were unable to care for their children. Kinship foster caregivers are often single, older, less educated, poorer, less adequately prepared for their care-giving roles, and receive less support from caseworkers. Additionally, when compared with non-relative foster care placements, kinship placements are more likely to delay reunification and are more likely to permit unsupervised contact between biological parents and children. Some argue that foster children in kinship care face significantly greater environmental challenges than their counterparts in non-relative foster care, and others have found a greater risk of delinquency for foster children placed with relatives than for those placed with non-relatives.
C. Group Residential Care
Some children are placed in group residential foster care rather than with families. Overall, the evidence suggests that group home placement is detrimental to children. In a study comparing young children reared in foster family homes to those in group homes, children in group care displayed similar levels of behavior problems but more compromised mental development and adaptive skills. Those in group homes have also been found to be more likely to engage in delinquent behavior and suffer from heightened behavioral problems. In fact, the relative risk of delinquency is at least double for adolescents who have experienced at least one group home placement compared to youths in traditional foster care placements. In contrast, children removed from group institutions and placed in family foster care displayed higher I.Q. scores compared to children remaining in institutions, in particular those removed prior to reaching twenty-four months of age.
In attempting to understand the negative effects of group care one must consider the possibility of selection effects, whereby children who prove difficult to tolerate in family settings are placed in group homes. Group settings provide limited opportunities to create or repair enduring relationships with family and caring adults, and social interaction in the group home setting is confined largely to staff and other foster children residents. Adolescents in group homes may have more opportunities to seek out peers with similar propensities for delinquency, and delinquent peers can teach their friends similar behaviors, thus increasing the risk of delinquency for youth in group homes, a phenomenon referred to as the "negative effects of peer contagion." The effects of exposure to deviant peers have been well established for a variety of externalizing behaviors.
D. Therapeutic Foster Care
Some foster care settings are categorized as therapeutic foster care ("TFC"), sometimes termed treatment foster care, specialized foster care, or family-based treatment. TFC "is a relatively new way of caring for children who need to be removed from their homes and who have intensive mental, emotional, behavioral, or medical needs." The goal of TFC is to provide a normal home-based setting that also meets the unique needs of these children, avoiding more structured institutional settings and creating "a therapeutic environment in the context of a nurturing home." TFC parents are specially trained to deal with the specific mental health needs of foster care children.
Although "[r]esearch on children in treatment foster care is limited, especially when compared with the volume of literature on children in non-specialized foster care," TFC has gained some empirical support in the juvenile delinquency literature. Further, TFC is increasingly being implemented with non-delinquent children in foster care. For children with multiple co-morbid mental disorders, TFC has been reported to improve outcomes with results that include decreases in aggression, reduction in institutionalization and increases in positive adjustment.
One researcher described TFC as effective in offering young drug abusers and juvenile delinquents a new start and an opportunity to form positive relationships with adults.
However, other literature suggests that these gains are limited. One extensive review found that TFC was significantly successful in increasing placement permanency and improving children‘s social skills. It also found that TFC was only modestly successful in reducing the level of psychiatric and behavioral problems in children and improving functional outcomes. Cross-sectional analyses of serious problem behaviors have generally shown that children in long-term treatment foster care resemble their counterparts in regular or family foster care settings, although they are less disturbed than children in group treatment settings.
In sum, while family foster care appears to be the placement of choice, there is a shortage of individuals willing to serve as foster parents. Kinship care yields mixed results. Group care appears to have a clearly negative impact upon foster children, and TFC, perhaps the most specialized type of individualized care a foster child can receive, nonetheless shows limited successful outcomes.
III. IMPACT OF FOSTER CARE ON CHILDREN
These findings notwithstanding, some research suggests that foster care can have a positive impact on children. One study of children ages eleven to fourteen found that, although placement caused severe disruption because of the need to adjust to new neighborhoods, schools, families, and friends, the children were positive when describing their lives and circumstances. Another study asserted, tentatively, that adolescents in long-term foster care demonstrate decreases in externalizing and internalizing problems over time, and that foster care may be particularly helpful for children who entered the system as a result of sexual abuse or neglect.
Early studies suggested that older children in long-term foster care showed improvements in overall well-being. Some studies suggested that foster care youth fared as well or better than their non-foster care peers who came from similar family backgrounds. Other studies showed that children‘s physical and emotional health and school performance improved after being placed in foster care.
In addition, current and former foster children who were interviewed for one study expressed that they generally had positive feelings about their foster care placements. Most youth believed that foster placement was in their best interest and reported that, without child welfare intervention, their home environments would have deteriorated. Studies using both small and large samples found high satisfaction of children with their caregivers and few reports of serious problems. In fact, one sample of Canadian foster children consistently rated their foster families as emotionally "healthier" than their biological families. A large proportion of children in out-of-home care reported feeling safer in their caregiver‘s home than they did in their birth parent‘s home.
Although one 2004 study suggested that most children in foster care were happy were happy with their caregivers, the same study and others showed that most children nonetheless missed their biological families after separation and wished to have more connection with them. The separation experience, both at the time of removal and in the subsequent months and years, leaves most children feeling unhappy, depressed, or upset. In fact, the clinical literature links conflicting loyalties between foster and biological families with severe behavioral issues such as suicide attempts. Placement can precipitate idealization of the child‘s biological parents, which is also viewed as problematic, with some workers describing a need to counter children‘s "unrealistic fantasy of a perfect family."
In describing the positive impact of foster care some researchers are more reserved, citing studies of children in out-of-home care without a comparison group that have suggested that children‘s academic, developmental and behavioral scores neither improve nor decline, but rather remain consistent while the children are in out-of-home care. Other studies of older children suggest that while foster care does not impact negatively on children‘s educational achievement or social adjustment, there are actually few protective factors associated with foster care.
Sadly, notwithstanding the relatively positive findings cited above, a great deal more research points to negative outcomes for children who have experienced foster care. Children in foster care often come into state care due to their exposure to abuse or neglect, family dysfunction and a number of other risk factors that threaten their healthy development. Twenty-five percent of foster children suffer from health problems and lag behind their peers in general cognitive and social development. A large majority of the children lag considerably behind age-appropriate developmental expectations in at least one metric of well-being.
In the area of physical health, pediatric and public health scholars report a higher level of childhood morbidity for foster children than for children not in the foster care system. First, foster children are more likely to experience physical health and general development issues as a result of perinatal experiences. For example, there has been a dramatic increase in the number of children entering foster care due to prenatal substance exposure. Although researchers stress the variability in outcomes and the contribution of multiple factors, the negative effects of substance exposure on the fetus and developing child are well-established. Growth irregularities and untreated medical problems are also common in foster children.
In terms of cognitive and academic functioning, although a majority of foster children fall within a normal range of functioning, studies show a larger proportion of foster children exhibit delays compared with children in the general population. Other research findings also indicate that a substantial proportion of foster children are at risk for school-related problems. Deficiencies in language and social skills as well as in peer relationships may threaten a foster child‘s school readiness. More than one-third of children in care demonstrated deficient written language skills, falling below grade level, and reading and math skills were also below grade level for close to one-third of these children. Approximately 30% to 40% of youths in foster care are in special education. Foster children have higher rates of special education and grade retention, and studies have indicated that they are more likely to struggle with grades and achievement tests. Notwithstanding these findings, "[t]he poorer academic functioning of foster children may not be attributable to their foster care experiences, per se, but to their pre–foster care experiences such as poverty and maltreatment." Children involved with child welfare systems often exhibit poor educational outcomes due to many factors including their greater likelihood of having developmental delays and of coming from families that have experienced poverty, as well as traumatic stress and maternal depression leading to neglect.
On the other hand, foster placement changes often force children in foster care to change schools. This situation places them at a great disadvantage. Out-of-home placements have the potential to cause school disruptions, adversely affecting attendance and engagement in school. School moves tend to interfere with academic progress, posing an additional challenge for children who have been removed as the result of neglect or abuse. These children often have "difficulty forming peer networks and support systems, feel stigmatized because of their foster care status, and are forced to integrate different curricula and varying educational expectations."
In the socio-emotional realm, there is substantial evidence that children who are victims of abuse and neglect are at high risk for emotional and behavioral problems. Studies indicate that certain maltreatment can prove to be detrimental to physical health as well as mental developments including cognitive and language skills and social function. Neglecting children during early developmental stages has been found to cause academic difficulties, social problems, internal issues such as depression, and external behavioral issues such as aggression. Physical abuse, in addition to its effects on physical health, has been associated with cognitive delays, aggressive behavior, peer difficulties, post-traumatic stress disorder, and other externalizing and internalizing behavioral problems. Established effects of sexual abuse include poor academic performance, depression, dissociation, sexual acting-out, and other high-risk behaviors in later childhood. Emotional maltreatment, which is implicated in all other forms of abuse and neglect, is associated with reductions in cognitive and academic functioning as well as a variety of behavioral difficulties. A lack of emotional access to parental support can cause severe delays in the physical and mental growth of children, especially at an earlier age.
Maltreated children, due to the burden of separation and changing placements, are at an increased risk for these types of growth delays. Separation, or loss of a relationship with natural parents, may cause grief to children as they enter into foster care. Children in care also face emotional and psychological challenges as they try to acclimate to foreign and often unpredictable environments. In fact, children may display signs of depression, aggression, or withdrawal within the early months of placement in foster care. Children with the most severe of attachment disorders may even display symptoms of behavioral problems such as "sleep disturbance, hoarding food, overeating, self-stimulation, rocking, or failure to thrive." Children in foster care experience more neglect and physical abuse than their non-foster counter-parts, and on average experience twice as many stressful life events. While it may seem obvious that children in foster care experience higher levels of abuse because they typically suffer some form of maltreatment in order to have been removed from their biological families; the disparity is noteworthy considering the damaging long-term emotional and physical effects of child abuse and neglect.
In fact, researchers estimate that 30% to 63% of children in foster care exhibit emotional and/or behavioral problems, either from their experiences before entering foster care or from the foster care experience itself. Children entering the foster care system need access to specialized services, given their high rates of emotional, behavioral, developmental, and physical health problems. A study of children in Medicaid programs in five states found that children in foster care were between 2.7 and 4.5 times more likely than nonfoster children to be prescribed psychotropic medications. Children in foster care also may exhibit mental and behavioral disorders at a rate five times that of nonfoster peers. In addition, children in foster care have been shown to utilize psychiatric services at rates significantly higher than nonfoster children from similar socioeconomic backgrounds.
Studies also indicate that children who are removed from their biological parents often show severe and profound deficits in adaptive behavior as well as serious behavior problems. Adolescents in foster care have been shown to be more susceptible to behavior problems, which can lead to delinquency. Several factors may account for the increase in problematic behavior associated with out of home care.
First, difficult developmental challenges are inherent in the foster care experience. For example, separation from primary caregivers and placement with unfamiliar adults may pose an especially difficult hurdle for very young children. Second, in addition to having to adjust to school, social, and familial changes, foster children may be impacted by weaknesses within the foster care system such as the lack of comprehensive psychological services offered to foster children and the often inadequate training and support services for foster parents. Both foster children and their caregivers may have difficulty emotionally processing and committing to an experience with no defined endpoint or predictable outcome.
Unlike typical biologically-related and adoptive families, foster families lack a sense of permanence. To compound this, children often enter the foster home with negative past experiences that may cause them to reflexively distrust caregivers, leading to the rejection of the foster parent. Although one study shows that training foster parents extensively prior to placement results in fewer placement failures, foster parents are rarely specifically trained to deal with the individual children placed in their homes. Foster parents are simply ordinary people with varying levels of skill, experience, and training. Furthermore, each year there are approximately 5,000 instances of re-traumatization in foster care.
Maltreatment by foster parents, in the context of re-traumatization, is another factor contributing to negative outcomes for foster children. The cumulative effect of early adversity followed by a period of instability substantially contributes to children‘s functional problems even when they finally achieve a permanent placement (e.g., adoption or reunification). Nevertheless, negative outcomes for foster children can arise even when the sufficiency of care is not in question. A U.K. study of foster children, independently assessed by social workers and researchers, determined that the children were receiving good or excellent care. Still, despite this finding, 30% of children were found to be manifesting some disturbance. The two most likely explanations for this relatively high rate of disturbance are that (1) some child psychiatric disorders may take many years to remit, and (2) the sense of impermanence felt by foster parents and children when the foster placements, though stable, are not expected to last.
The impermanency that foster children feel is exacerbated by how a significant number of these children experience multiple moves, either within the foster care system or between foster care and their family of origin, before a permanent placement plan can be implemented. Changing residences has been linked to negative psychosocial outcomes such as pregnancy, substance abuse, and school drop-out. To compound this instability, child welfare agencies suffer from high turnover. Foster youths are exceptionally vulnerable to the activities of public child welfare caseworkers, because caseworkers are responsible for their safety, stability, well-being, and permanence. Research suggests that changing a child‘s caseworker has negative emotional and physical consequences for the child.
For the child, the experience of foster placement may be described as an ambiguous loss, one where there is no verification of death, yet there is no certainty that the person will come back or return to the way she or he used to be. Ambiguous losses have no clear boundaries and no clear endpoint. Often, there is no culturally or socially recognized ritual for mourning or even acknowledging what has been lost. The loss of physical contact with parents and siblings, combined with multiple changes in placement and relationship disruptions, creates recurring ambiguities for young people. They cannot feel certain about what has happened to them, do not know who to turn to for support, are unable to determine whether it is appropriate to move on, and have difficulty knowing where they belong. Young people remaining in foster care, who do not return home, report confusion regarding their familial memberships. Even when foster children are adopted, the boundaries around the families they construct for themselves remain unclear.
Over the long term, children and adolescents exposed to complex trauma are at a high risk for experiencing ongoing physical and social difficulties. These young people often show a greater vulnerability to stress, an inability to emotionally self-regulate, excessive help-seeking and dependency, and social isolation and disengagement. Research documents the strong relationship between trauma and emotional and behavioral difficulties. The limited long-term research on children in foster care suggests that they are at risk for continued difficulties, including dropping out of high school, involvement with the criminal justice system, and chronic problems with employment and housing. When compared to the general population, adults from foster care backgrounds have higher rates of homelessness and unemployment.
Children placed in foster care are far more likely than other children to commit crimes, drop out of school, join welfare, experience substance abuse problems, or enter the homeless population. Many youths leaving foster care end up in jail or on public assistance. A study of employment outcomes for youths aging out of foster care found that many were underemployed and progressing more slowly in the labor market than were other low-income youths. In Illinois, only half had any earnings in the two years after aging out of care. Further, "nearly 20% of young prison inmates and 28% of homeless individuals spent some time in foster care as a youth."
Recent research shows a birthrate to teenagers in foster care to be more than double that of the national rate (17.2% compared with 8.2%). Homelessness also affects more than one-fifth of youths for at least one night in their first year following discharge from care. Research suggests that, with regard to education, welfare utilization, and early childbearing status, young adults transitioning from foster care are more similar to their counterparts who are below the poverty level than to their peers in the general population. Those that experience out-of-home care may be "at risk for homelessness, psychiatric illness, and criminality."
IV. CONCLUSION
As the United States Supreme Court held in Williams v. Taylor, a death penalty defendant has "a right—indeed, a constitutionally protected right—to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer." Similarly, the sentencing guidelines set forth in 18 U.S.C. § 3553 contain "an overarching provision instructing district courts to 'impose a sentence sufficient, but not greater than necessary,‘ to accomplish the goals of sentencing." Courts must be impartial guardians of fairness and justice, especially in criminal proceedings. The even-handedness with which courts mete out criminal punishment is a stark criterion; the public has to determine whether, in fact, the justice system is working fairly. Whether or not foster care per se should be considered a mitigating factor is one that should be seriously considered.
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