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Fetal Alcohol Spectrum Disorders: What Judges and Other Legal Professionals Need to Know

Natalie Novick BrownTherese GrantSterling ClarrenNatalie Novick Brown, PhD, Forensic Psychologist and Clinical Assistant Professor, University of Washington (pictured left)
Therese Grant, PhD, Associate Professor and Director, Fetal Alcohol and Drug Unit, University of Washington (pictured center)Sterling Clarren, MD, Clinical Professor of Pediatrics, University of Washington and University of British Columbia and Scientific Director, Canada FASD Research Network (pictured right)

Summary: The authors introduce the topic of FASD and its relevance within the judicial and legal context, indicating how these brain-based conditions might look in court-involved youth.

Fetal alcohol spectrum disorders (FASD) include fetal alcohol syndrome (FAS), partial FAS (pFAS), alcohol-related neurodevelopmental disorder (ARND) and alcohol-related birth defects—conditions that all stem from brain damage due to prenatal alcohol exposure (PAE). Because FASD (often undiagnosed) affects many youth in the foster care and juvenile justice systems, judges and other professionals who interface with these children need to be familiar with the subject.

FASD involves medical diagnoses that are typically made by trained physicians in conjunction with multidisciplinary teams that assess specific domains of central nervous system functioning. See the University of Washington website for detailed information from the Fetal Alcohol Syndrome Diagnostic and Prevention Network.

FAS is characterized by prenatal alcohol exposure and three specific abnormalities: 1) facial dysmorphology (i.e., smooth philtrum, thin upper lip, and short palpebral fissures); 2) prenatal and postnatal growth deficiency in height or weight (≤ 10th percentile); and 3) central nervous system (CNS) dysfunction, including structural, neurological, and/or functional brain abnormalities (which may include microcephaly, mental retardation and attention deficit disorder). The facial features and growth deficits in individuals exposed prenatally to alcohol may attenuate over time. Partial FAS involves only one or two of the facial abnormalities; ARND does not require the presence of any facial dysmorphology. However, CNS abnormalities are present in all three conditions.

The most opportune time to make an FASD diagnosis is between the ages of 10 months and 10 years because the physical features of the disorder are most observable during this time. Diagnosing FASD in adulthood can be problematic in the absence of reliable informants that can provide PAE history. Ideally, an FASD diagnosis can explain to an affected individual and those with whom he interacts why behavior and functioning are impaired. Diagnosis may result in more realistic expectations for the future and the adoption of compensatory strategies. Thus, formal diagnosis can be an important first step in acquiring appropriate treatment and services (e.g., Social Security disability, substance abuse and mental health treatment, specialized vocational programs) that might ameliorate adverse life outcomes common to individuals with this permanent birth defect.

FASDs are associated with multiple cognitive deficits. Although prenatal alcohol exposure is the leading known cause of intellectual disability, most individuals with FASD are not intellectually disabled. In fact, most IQs in this population fall in the average to borderline ranges. Those with FAS and partial FAS have characteristic dysmorphic facial features that facilitate identification, but those with ARND have a “normal” face, which makes detection and diagnosis difficult. Since FASD is invisible to the eye for most affected individuals, and there are no obvious IQ deficits, decision making that affects interventions for this population requires two things from professionals: 1) ability to detect (or at least suspect) the types of behavior that stem from brain damage, and 2) appreciation for the critical importance of a structured, stable social environment.

FASD involves behavioral profiles that taken together make detection of the underlying brain damage relatively straightforward. The new fifth edition of the Diagnostic and Statistical Manual (DSM-5) provides helpful guidelines on how to conceptualize FASD’s neurobehavioral sequellae, which are diagnosed as “Neurodevelopmental Disorder Associated with Prenatal Alcohol Exposure” (ND-PAE). For ND-PAE, outward physical appearance is irrelevant. Instead, diagnosis is about behavior in three functional domains: (1) neurocognitive (i.e., IQ, executive functioning, learning, memory, visual-spatial reasoning), (2) self-regulation (of mood, behavior, attention, impulses), and (3) adaptive functioning (in communication, social skills, daily living skills, and motor skills)—all manifesting in childhood and causing significant impairment or distress in multiple areas of functioning.

What do these behavioral or functional deficits mean in real life terms? Affected youth typically have considerable difficulty with nearly every aspect of their behavior—from paying attention, learning and remembering things to applying what they’ve learned to everyday experiences while also controlling emotions and urges. In other words, the brain damage in ND-PAE affects everything about the way a child functions. Because brain damage is irreparable and permanent, intervention in the legal context is all about recognizing the signs of disability and providing external supports in a structured environment to compensate for the deficits.

The neurocognitive deficits noted in ND-PAE include learning problems, which not only affect academic achievement but also affect ability to learn routines and social rules in the home and community. Because of attention and memory deficits, affected children have considerable difficulty remembering multistep instructions. Coping with change also is challenging because new contexts require new behavioral routines, which overwhelms cognitive capacity. Typically, children with FASD compensate for their learning deficits by mimicking what they see around them, something that should be kept in mind with respect to placement and legal disposition.

Self-regulation deficits in FASD involve personal control of mood, emotion and urges as well as behavior. Over-sensitivity to stimuli (internal and external) is common in this population, and children with FASD may become upset, frustrated and angry with little provocation, which leads to overreaction. In young children, such overreaction might look like a tantrum; in later childhood, overreaction may manifest in aggressive behavior toward self or others. Because these children have difficulty foreseeing consequences and appreciating the effect of their behavior on themselves and others, making mid-course corrections is virtually impossible. Behavioral self-regulation problems also include inability to delay gratification, which contributes to boundary violations. As a result, theft is common and as these youth enter puberty, sexually inappropriate behavior also is common. Because they have difficulty regulating affect and mood, youth with FASD often have mood disorders such as anxiety and depression or bipolar symptoms.

Due to multiple cognitive deficits, youth with FASD tend to be developmentally delayed in adaptive functioning (e.g., language, social and practical skills). Along with attention, memory and executive function deficits, language deficits can negatively impact legal competencies. Since virtually all children with FASD are socially delayed, poor relationship and coping skills make relationships quite challenging. Developmental delays in socialization also affect moral maturity. In fact, most adults with FASD function socially and emotionally as if they were young children, particularly in novel situations where appropriate conduct has not been practiced and well learned.

Among all children with neurodevelopmental disorders, children with FASD may be the most difficult to parent, to educate and to treat because of their challenging behaviors. Nevertheless, effective interventions have been developed that can improve quality of life for affected youth and those in their lives. A stable, structured, protective social environment involving educated and compassionate caregivers is the single most important key to successful intervention. See the CDC website for information about treatment services for people with FASDs.

Case summaries, law review articles and other materials related to FASD and the law can be accessed at the American Bar Association website. These materials were assembled by the FASD Legal Issues Resource Center of the Fetal Alcohol and Drug Unit, University of Washington, and are made available through a website hosted by the American Bar Association Committee on Children and the Law.

Author biographies:

Natalie Novick Brown, PhD, is a licensed psychologist in Washington State and Florida. In her 20-year practice, she has specialized in fetal alcohol spectrum disorders, developmental disabilities and child development. She obtained her doctorate in clinical psychology from the University of Washington in Seattle and completed a post-doctoral fellowship in fetal alcohol spectrum disorders with Ann Streissguth, pioneer researcher in the field. Brown is the founder and program director for FASDExperts, a multidisciplinary group of professionals that conducts forensic FASD evaluations throughout the United States. She is a clinical assistant professor in the University of Washington’s School of Medicine, Department of Psychiatry and Behavioral Sciences. Brown has published numerous articles and book chapters on FASD and conducted national and international trainings for legal, criminal justice, government, and mental health professionals.

Sterling Clarren, MD, is the CEO and scientific director of the Canada Northwest FASD Research Network and a clinical professor of pediatrics within the Division of Developmental Pediatrics and the Child Development and Rehabilitation Program at the University of British Columbia Faculty of Medicine. He is the co-lead of the FASD Section of the Neurodevelopment Network Canada and a clinical professor of pediatrics at the University of Washington.

Dr. Clarren has written over 100 scientific papers, review articles and chapters on FASD. In 2001 he was given the Henry Rosett Award by the Fetal Alcohol Study Group of the Research Society on Alcoholism in recognition of “outstanding clinical insight, leadership and research.” In 2006, he received the Award for Career Excellence from the National Organization for FAS in Washington, DC.

Therese M. Grant, PhD, is an epidemiologist who has worked in substance abuse research and intervention at the University of Washington for over 25 years. She is the Ann Streissguth Endowed Professor in Fetal Alcohol Spectrum Disorders and directs the Fetal Alcohol and Drug Unit in the School of Medicine’s Department of Psychiatry and Behavioral Sciences. She serves as an adjunct associate professor of epidemiology, and is a research affiliate with the Center on Human Development and Disability. Since its inception in 1991, Grant has directed the Parent-Child Assistance Program, an award-winning, evidence-based intervention model working with mothers who abuse alcohol and drugs during pregnancy. She has published and spoken widely on fetal alcohol spectrum disorders, effects of prenatal alcohol and drug exposure, and intervention with high-risk mothers and their children.

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