by Janice Beller
Author’s Note: The author wishes to express her thanks to Judge Jack Varin, for his insight, wisdom, and knowledge on this topic, all of which inspired this article.
Whether a child lands in the middle of a high-conflict divorce or suffers abuse or neglect at the hands of a parent, each child comes to the courthouse already carrying the burden of adverse childhood experiences (“ACEs”). Trauma. Heavy burdens foisted upon tiny shoulders and vulnerable hearts. Eventually, if left untreated, those children become adults and as adults, the untreated trauma manifests itself in a myriad of different, destructive ways. Some of those ways can directly impact how attorneys work with these children and adults on family law, child protection, and juvenile cases.
Thus, it is incumbent upon every attorney practicing in these fields to understand what ACEs are and why understanding the scope of a client’s exposure to trauma is important. They must also learn to identify potential trauma-triggered behaviors and ways to support clients with significant historic trauma while they move through the legal process. Creating a practice which is mindful of trauma leads to better outcomes for adult clients, prevents additional trauma for children involved in legal cases, and fulfills our professional and ethical responsibilities.
Identifying and Quantifying Childhood Trauma
While no one uniform definition of childhood trauma exists in the literature, there is little disagreement about the kinds of events that trigger it. If an incident or event is, “scary, dangerous, violent, or life threatening,” you have trauma.[i] Over the last few years, child welfare organizations in Idaho attempted to raise the awareness of ACEs, with many articles written, workshops and trainings offered, and evaluation tools recommended for implementation.
Long-time Eastern Idaho Magistrate Judge Bryan Murray, in fact, presented an outstanding article regarding ACEs in this very publication back in 2020.[ii] It provided readers with an easy-to-understand primer for what ACEs are and what kinds of childhood trauma drive the calculation of an “ACEs score.” Since any explanation here would only be redundant, a short synopsis is provided in the sidebar.
Calculating an ACEs score.[iii]
Note, however, that childhood trauma and its measure using ACEs is more than a passing theory. Almost 40 years after the groundbreaking ACE study by the Centers for Disease Control and Kaiser Permanente, the connection between childhood trauma and later-life wellbeing is doctrine.[iv] The study’s results have been replicated multiple times, and in some cases, researchers have begun identifying additional potential sources of childhood trauma.[v] However, the 10 original factors remain the same to this day.
Still, acknowledging the existence of trauma in children does not automatically convey a call to action. After all, what childhood is trauma-free? Why should a child’s or parent’s high ACEs score inform how court cases are handled? Why should family law attorneys care about a client’s ACEs score when gathering information early in a representation?
Identifying and quantifying childhood trauma is an important first step for each child or adult entering the legal system because one cannot fight what is not well understood. Remember, traumatized children grow up! What fails to be treated as a child is left to be managed as an adult. Understanding the implications of trauma leads to better outcomes for clients and families and can make a significant difference in the attorney-client relationship. If understanding trauma makes the difference between a successful, constructive representation or a nightmare of a high conflict proceeding where professional and ethical responsibilities wind up challenged, the choice should be easy for any practitioner.
Traumatized Children Become Troubled Adults
The why of studying childhood trauma is powerful and should provide a sense of urgency to anyone in a position to assist children with trauma. Trauma’s pervasive nature and impacts on the human brain are well-documented; it is an unrelenting and devastating enemy. For any attorney working with parents, communicating “why trauma matters” is an important part of the education component each parent should receive as they work through their case. Whether handling a child custody or a child protection case, and regardless of how the trauma occurred, the impacts are exactly the same.
First, children with high ACEs scores suffer physical health consequences. They have documented higher occurrences of disease, including diabetes, cancer, brain damage, stroke, and migraines.[vi] Second, children with high trauma experiences suffer abnormal brain development. Depending on the age and severity of the trauma, the developing brain is fundamentally impacted in its growth. Scientific studies have documented variances in brain size and in the size and functioning of key brain areas, including the areas that control emotion, memory, learning, and decision making.[vii] Third and finally, they suffer psychological consequences. While it might be easy to understand that childhood trauma promotes poor mental and emotional health by pointing to the increased rates of depression and suicide, the damage goes deeper.
Traumatized children suffer from diminished executive function and cognitive skills. They struggle to pay attention, regulate their emotions, learn new skills, and retain new information.[viii] These children also suffer from post-traumatic stress syndrome, which fills their young lives with visions of reliving the abuse, avoiding people, places, events, or situations related to the trauma, and overwhelming feelings of fear, horror, anger, guilt, or shame.[ix] Imagine those triggers come from a child’s parents – a child’s home. Trauma-filled home environments can create hypervigilant children who cannot find sanctuary and peace in the one place meant to shut out our tumultuous world.
Additionally, children with high levels of trauma struggle to form proper attachments with the people in their lives. They may be unable to create or nurture positive, healthy relationships with other children or adults, and later in life, an inability to form romantic attachments to others. They may also experience a higher instance of antisocial behavior.[x]
And finally, traumatized children also suffer behavioral consequences. Beyond the behaviors discussed previously, children with trauma backgrounds have a higher occurrence of self-destructive behaviors including unhealthy sexual behaviors, criminal activity, and perhaps the least surprising behavior, alcohol and drug use.[xi] Looking solely at children in foster care, data from the National Youth in Transition database identified 27% of 17-year-olds in foster care were referred for substance use treatment.[xii]
Long term, childhood trauma perpetuates the cycle of violence and abuse in future generations. In my practice as a child welfare attorney, I commonly see children who were involved in a child protection case return to my case load as parents themselves. Mental health and substance abuse issues are a part of virtually every case on the child protection docket and the limited supply of treatment services is swamped by the overwhelming demand for them.
What Does Trauma Look Like in My Office or in Court?
Now that we understand that trauma has observable, physiological reactions, the next step is recognizing how these reactions appear as courtroom behaviors or during a client meeting. When in court, a parent or child experiencing a trauma response may sit stoically when asked a direct question. What may appear to be disinterest or disrespect by ignoring the judge could actually be the respondent disassociating or numbing as a response to the situation.
Witnesses experiencing a trauma trigger may shift to being overly agreeable, or openly defiant while offering testimony. Physical actions like jumbled speech or uncontrollable body movements are often interpreted by others as side effects of drug use, when in fact, the behaviors may be triggered anxiety, fear, or a rush of adrenaline as a person’s flight or fight instinctual reflex kicks in. Outbursts of emotion – particularly anger – can be borne from trauma instead of ego or poor anger management.[xiii]
Judge Jack Varin, a retired magistrate judge who served as a juvenile judge for the last 13 years of his judicial service, routinely observed these kinds of trauma responses in the children who appeared in his court.
Judge Jack Varin was an Idaho judge for 22 years total, serving in six of the counties within the Fifth Judicial District. After retiring, he served another six years as the Juvenile Court Director for the Administrative Office of the Courts.
He recalls many instances where he could see a child’s anger and overwhelmed emotions play out during a hearing. “I watched their eyes glass over, their fists clench, and I knew they were unable to hear and understand anything that was going on in court at that time,” says Varin. “I learned quickly that until the child had a moment to reset from the trauma trigger, it would not be possible to make real progress in the hearing.”
Court proceedings, depositions, mediations, and parenting evaluations are all critically important activities where the best results can hinge on how a parent or child responds to difficult questions and stressful, high-tension situations. The ability to remain calm, think rationally, and stay present in the moment are keys to a successful outcome, but a trauma-triggered client may be unable to regulate their emotions without assistance.
Additionally, if a client has disassociated from the activity he or she is supposed to be participating in, it may not be possible in that moment to knowingly, intelligently, and voluntarily make decisions or agreements. When clients begin to show signs of behavior fueled by past trauma, it requires an attorney to take immediate action. Idaho’s 2023 Outstanding Young Lawyer, Ashley Marelius with Breen, Ball, and Marelius, has seen this happen while observing a cross examination of her client at trial. She described a situation where the examination began well, but she noticed that the client stopped mindfully answering questions and began agreeing with the questions asked by opposing counsel, even though Marelius knew those answers were not accurate.
“At first, I wondered what my client was doing, because I knew the answers were untrue or required more than a yes or no answer,” she said. “In the time I had worked with my client, we had a plan for the litigation and I knew what to expect during cross examination. Until things suddenly shifted.” Marelius shared how she asked for a break to confer with her client and during the break, learned that the shift in answers came as a result of a trauma-trigger experienced by her client.
During redirect, Marelius worked with the client to repair the damage and move forward, but Marelius noted, “I learned quickly how important identifying trauma can be, so that I can best protect my client’s interests in stressful, triggering situations.” She went on to note, “It is an imperative for attorneys to assess their clients for historic trauma. You cannot advocate for your clients effectively and protect their interests if you are unable to anticipate situations where their abilities to fully participate are compromised.”
This can play out another way in juvenile or child protection courtrooms, where the adults around a child play a vital role in the successful outcome of a case. After over 25 years on the bench handling both juvenile and child protection cases in Bannock County, Judge Bryan Murray has seen many examples of where untreated trauma impacted the ultimate outcome of a case. He recalled a family where a juvenile male came into court with his grandfather serving as a strong support.
“The man had his share of criminal history too, but was the only enduring male relationship the child had,” noted Murray. The hearing went poorly, because the mother was unable to agree to the terms of her son’s release and the juvenile engaged with the court in an aggressive manner. This left Judge Murray with no option but to maintain the juvenile in custody, and this upset the grandfather. Ultimately, the grandfather behaved so badly, officers decided to take him into custody. Judge Murray recalled, “to avoid custody, the man faked a heart attack and was taken to the hospital instead. Once at the hospital, he never checked in and left. The juvenile had to work through the rest of his case without his grandfather as a support.”
Failing to appropriately recognize trauma-triggered emotions presented by a client and addressing them immediately can lead to detrimental consequences for both client and attorney. Consider also an attorney’s obligations under the Idaho Rules of Professional Conduct – especially Rule 1.14.[xiv] An attorney must take steps in these moments of profound trauma vulnerability to protect clients from making decisions or engaging in a way which is not in their best interest or flies in the face of a previously expressed instruction.
Addressing the Trauma Elephant in the Room
So, now we can quantify the levels and impact of childhood trauma, and we understand we need to do more than merely acknowledge its existence. Our professional and ethical obligations require us to protect our clients at their most vulnerable moments. This is a great start, however, as the old saying goes, knowing is half the battle.
How do we support clients as we work to secure the best legal outcomes on their behalf? Obviously, each still retains the right and ability to call the shots, and sometimes, that means supporting someone in a course of action an attorney knows is not in their client’s best interest. Marelius recalled a past experience where a battered spouse elected to reconcile instead of continuing forward with a divorce. While, she noted, the judge expressed visible disappointment in the outcome, Marelius challenges attorneys to remember the long game.
“We must not express judgment towards a victim and their choices,” she said. Marelius added, “As much as it hurts and you know it is a grave mistake, you cannot do that. The moment you show any type of judgment, you will never see them again.” She concluded, “It is so important to create a safe place for victims to return when things go sideways again, which they usually will.”
Additionally, Judge Varin notes that attorneys are, by their nature, fact-collectors. “Become aware of your objectivity,” he noted. “The whole idea of being non-biased is to glean information objectively. You have to know the information [regarding a client’s trauma history] first before you can decide the best way to proceed for your client.” Merritt Dublin identified the concept on objectivity in her excellent January 2023 article, where she discusses trauma-informed lawyering and working with the kinds of information often seen when working with clients with trauma history.[xv]
Recognizing the scope and breadth of trauma’s impact on the job we do for others consequently also underscores the need for more tools to help attorneys navigate these precarious waters. Our obligation is not to become mental health professionals. However, there are things we can do to “first do no harm,” and second, to provide better outcomes for our clients. We can ask questions in a way that accommodates for the trauma people bring with them to our doors. Next, we can use the concepts of resilience to keep trauma survivors focused and supported throughout the process.
Gathering Information with Trauma in Mind
Acting in ways mindful of trauma begins at the first meeting with a client. Addressing trauma in daily practice means that an attorney should seek out information regarding historical trauma as soon as possible in client interactions. Just as doctors take a thorough patient history at the beginning of every examination, attorneys must begin vetting their clients – adults or children – to determine the level of historic trauma that exists. Do not assume that a level of trauma is part of the legal process itself and chalk up misbehaviors to the stressors of the moment. If an attorney does not feel comfortable asking a client directly about those life events identified in the ACEs questionnaire, listen carefully to the information shared by a client and glean from their input a quasi-ACEs assessment.
The language used in seeking this information is important as well. Normalizing trauma as a shared human condition can help children and adults feel less alone. Taking the time to build rapport and trust with clients and witnesses can lead to better outcomes when asking the difficult but necessary questions later on.
Judge Varin also shared it is important to shift our thinking, when asking questions, away from trying to quickly identify labels for our clients, to understanding how their history shapes where they are today. “It used to be commonplace to ask a client, respectfully of course, a question like ‘What’s wrong with you?’ trying to capture things like mental health diagnoses, physical injuries, or defenses for alleged maladaptive behaviors,” explained Varin. “However, I learned over time that the better question to ask, the question that helped to identify trauma in a supportive, non-judgmental way was, ‘What happened to you?’”
In asking the question this way, a client or child is not seen as damaged or lesser, but instead is invited to offer insight. Dublin’s article identifies several additional key questions that are effective in getting to details often veiled in trauma, without inflicting additional harm.[xvi]
Utilizing Resilience to Combat Trauma
The American Psychological Association defines resilience as “the process and outcome of successfully adapting to difficult or challenging life experiences, especially through mental, emotional, and behavioral flexibility and adjustment to external and internal demands.”[xvii] In short, resilience is an antidote to trauma. While everyone has some level of natural resilience, those levels vary greatly over time and as a result of trauma exposure.
Cultivating resilience in children and adults with high trauma histories – people whose natural resilience has taken a beating – can make a significant impact in how a person responds to and manages trauma triggers before, during, and after they occur. Most importantly, cultivating resilience does not take professional training or advanced degrees. The beauty of resilience is that a few little things can make a big difference in combatting trauma. Basic resilience practice requires actions in three main areas: mindfulness, activity, and creating a supportive community.
While it would be easy to write a whole article on the benefits and practice of mindfulness, the kind of mindfulness relevant to this article is the concept of presence in the moment. When a person’s past trauma is triggered, their mind often returns to the sights, smells, memories, and feelings surrounding the trauma.[xviii] They begin to respond in ways that are incongruous with what is going on in the present. A person who was, in the office, bright and outgoing, engaged and articulate, may become withdrawn and meek, quiet or monosyllabic.
Or, conversely depending on the trigger, they may become angry and defiant, challenge authority, or suddenly demand an aggressive course of action that had been previously ruled out. They have returned to behaviors that allowed them to survive a past traumatic event and are not present in a way that reflects who they are today. The key is knowing a client well enough to identify the rapid shift in behavioral change, and to check for understanding by addressing the behavioral shift in terms of a specific trauma or trigger.
The mindfulness practice of grounding can allow a person to interrupt the trauma trigger and return to a focus on the present. The classic technique would be to ask the person to identify things related to sensory inputs; things they can see, hear, feel, or taste, right in the current moment. Depending on the context of the situation, however, that may not always be appropriate.
Sometimes, even asking a simple question like, “What are three things you know to be true right now?” can also begin to bring the person back to the present, interrupting a focus on things that happened in the past. Helping a person return to the moment can also help them restore a sense of control and deescalate from a “flight or fight” mode. Anything an attorney can do to interrupt and re-center a client in the present can prevent the person from making decisions or answering questions as they would when re-living the remembered trauma.
During court proceedings, an attorney recognizing a trauma-trigger may seek a brief recess or continuance. When used with the additional techniques described next, walking and talking with a client around the courthouse or giving the client a moment to speak with a trusted friend can help re-center and refocus the client in the present, and allow court to proceed as planned.
Helping a client return to the here and now is not always as easy as pointing out the disconnect. Just as the body takes time to ramp up, so too, does it often take time to ramp down trauma-triggered behaviors. Activity is a proven tool to process the energy (stress) that trauma generates. Whether it is a moment of deep breathing and a stretch break, or taking your client for a quick walk around the block, activity after an identified trigger can help the body process the emotions that can lead to negative outbursts.[xix]
Activity is especially helpful for children, whose energy levels are already higher than adults and for whom processing excess energy can often lead to “teachable moments.” If you are working with someone and trying to get through difficult information, integrating activity into that discussion – a walk, a bike ride, shooting hoops – can help with both the mindfulness component of resilience as well as managing the negative energy that comes with trauma. Activity can also give the person a healthy outlet to process the stress generated by the legal situation at hand. As a bonus, don’t forget that by doing this activity with your client, you gather the same resilience-building benefits as well; a true win-win.
The final component necessary for (re)building resilience is the idea of community. Too often, people seeking assistance from the legal system – whether adult or child – come to our doors alone and without support. Children at the center of a child protection case, have often been caring for themselves, their siblings, and sometimes even their parents, without the assistance of a capable adult. Connecting children with mentors, school supports, extended family members, and consistent, reliable adults can provide them with social support and build resilience.[xx]
For adults, ensuring clients have access to professional mental health resources is important. Consider assembling a list of local grief or trauma counselors to give to every client as part of your initial service consultation. If you are aware of support organizations for which your client may be a good fit, pass along the information. Attorneys are well-connected and tend to hear about good service providers from the cases they work.
Connect clients with services offered through the local court programs like Family Court Services or community organizations offering low- or no-cost trauma counseling. Passing along a list of service providers, classes, or support groups of which you are aware is not an endorsement of any particular person; rather, a client service that offers an opportunity for community. Connecting into a community can help your client develop resilience and weather the legal process ahead. Ultimately, attorneys can be a key piece of the puzzle in leaving people stronger and more resilient at the end of the legal process, but it requires a commitment to the principles of trauma-informed lawyering discussed here.
Trauma responses are an inevitable part of the work attorneys do in family law, child protection, and juvenile cases. Making a diligent effort to understand the level of historic trauma present in the people we work with – regardless of age – is a professional and ethical responsibility. Ignoring the signs of triggered trauma can leave your clients or witnesses vulnerable at critical moments and ultimately make choices against their best interest.
By integrating resilience practices into legal practice, attorneys can protect their clients, fulfill professional responsibilities, and ultimately, deliver better results for clients. And long-term, integrating resilience practices give attorneys the opportunity to assist adults and children on the road to developing resilience. This, in turn, can have a profound ability to lift the weight of trauma from overburdened shoulders and break the cycle of victimization and abuse we see so much of today.
As the great poet Maya Angelou once said, “You may not control all the events that happen to you, but you can decide not to be reduced by them[xxi][…] I’m not sure if resilience is ever achieved alone. Experience allows us to learn from example. But if we have someone who loves us – I don’t mean who indulges us, but who loves us enough to be on our side – then it’s easier to grow resilience, to grow belief in self, to grow self-esteem. And it’s self-esteem that allows a person to stand up.”[xxii]
Janice Beller served as a child protection guardian ad litem and spent seven years working on the child protection team at the Idaho Supreme Court. She currently handles a child protection calendar in Canyon County and recently completed a term as the Chair of the Idaho State Bar Child Protection Section. Squarely as a result of her son’s musical prowess, she now routinely spends time watching him on stage as part of the local metal band Reverie, and recently attended her first Metallica concert.
[i] What is Child Trauma? Center for Child Trauma Assessment, Services, and Interventions, Northwestern University Feinberg School of Medicine, https://cctasi.northwestern.edu/child-trauma/ (last visited September 5, 2023).
[ii] Honorable Bryan Murray, The Pandemic of Adverse Childhood Experiences: Courts and the Health of Idaho Citizens. Advocate, June/July 2020 at 12.
[iv] Adverse Childhood Experiences (ACEs), Center for Disease Control and Prevention: Violence Prevention, https://www.cdc.gov/violenceprevention/aces/index.html (last visited September 5, 2023).
[v] David Finkelhor, PhD, Anne Shattuck, MA, Heather Turner, PhD, et. al., Improving the Adverse Childhood Experiences Study Scale, JAMA Pediatrics, January 2013, available at: https://jamanetwork.com/journals/jamapediatrics/fullarticle/1393429#:~:text=Using%20these%20items%2C%20we%20constructed,health%20and%20well%2Dbeing%20outcomes. (last visited September 5, 2023).
[vi] U.S. Department of Health and Human Services, Administration for Children and Families, Children’s Bureau, Long-term Consequences of Child Abuse and Neglect, Child Welfare Information Gateway, https://www.childwelfare.gov/pubpdfs/long_term_consequences.pdf (last visited September 5, 2023).
[xii] U.S. Department of Health and Human Services, Administration for Children and Families, Children’s Bureau, Preventing, Identifying, and Treating Substance Use Among Youth in Foster Care, Child Welfare Information Gateway, https://www.childwelfare.gov/pubPDFs/bulletins_youthsud.pdf (last visited September 5, 2023).
[xiii] Substance Abuse and Mental Health Services Administration (US), Treatment Improvement Protocol (TIP) Series, No. 57: Chapter 3, Understanding the Impact of Trauma, Trauma-Informed Care in Behavioral Health Services, 2014, Available from: https://www.ncbi.nlm.nih.gov/books/NBK207191/ (last visited September 5, 2023).
[xiv] Among the many duties and obligations attorneys are expected to fulfill, attorneys serve a vital role in ensuring all who seek assistance from the legal system are protected when they are the most vulnerable. Rule 1.14 addresses this specifically when it speaks of clients with a diminished capacity. The rule and its commentary are very careful not to define “diminished capacity,” and this author would suggest that for this reason, our obligation as attorneys stretches beyond the strict definition of diminished capacity as someone with an intellectual or cognitive deficiency. Indeed, whether a client’s diminished capacity comes from a cognitive disability present from birth, or an inability to think clearly due to the result of a trauma-triggered response, the rule requires an attorney to, “take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client… .” This is especially relevant when representing children, because a child’s first protectors are his or her parents. In a child protection or juvenile case, those resources may be unavailable to the child, meaning that a child’s attorney has a heightened responsibility to safeguard their clients in this way.
[xv] Merritt Dublin, Trauma-Informed Lawyering and Implications to Lawyer Competency and Professional Integrity, Idaho State Bar Blog, posted January 4, 2023. Accessed at: https://isb.idaho.gov/blog/trauma-informed-lawyering-and-implications-to-lawyer-competency-and-professional-integrity/ (last visited September 5, 2023).
[xviii] Understanding the Impact of Trauma.
[xix] Kelyn Soong, How exercise can help you build resilience at any age, Washington Post, February 3, 2023 at 2:28 p.m. EST, https://www.washingtonpost.com/wellness/2023/02/03/building-resilience-exercise-stress/ (last visited September 5, 2023).
[xx] American Psychological Association, Resilience Guide for Parents and Teachers, 2012. Accessed at: https://www.apa.org/topics/resilience/guide-parents-teachers (last visited September 5, 2023).
[xxi] Maya Angelou, Facebook (September 14, 2017), https://www.facebook.com/MayaAngelou/posts/pfbid05aPXcZFRTwXDQUbQf4QmPwPRRoQYBJQCCExZ9FEkJeVTbKjemPfXe2xZVh5qJbvZl (last visited September 5, 2023).
[xxii] Maya Angelou, Facebook (January 24, 2022), https://www.facebook.com/MayaAngelou/photos/a.485196574795/10160860849374796/?type=3 (last visited September 5, 2023).