FIJ Quarterly - Fall 2022 Edition


When Best Interests are Not: The Need to Redefine the Best Interest of the Child David Kelly and Jerry Milner

The phrase best interest(s) of the child is prevalent in child welfare law and practice. It is a legal standard on which attorneys root arguments and a basis of judicial determinations. It is used to guide social work practice and expert recommendations for what should happen to a child. They are words that are commonly spoken in justifying a decision to remove a child from their parents and place him/her/they in foster care. They are words utilized to sever permanently a parent’s rights and promote adoption. They are words used to describe the opinions formed by lay volunteers or attorneys that advocate for what they think will benefit a child instead of a child’s wishes. And they are words that are used too often as something distinct from a child’s parents. They can be weaponized to punish parents. Best interest(s) are utilized in our current system so often to justify so many things that they fail to carry true meaning, which can and does cause harm to children and their parents. We must reexamine this longstanding feature of the child welfare system and define its meaning more explicitly and completely or jettison it altogether. This is the focus of this issue of the Family Integrity & Justice Quarterly and one that is closely linked to other critical aspects of the child welfare system, including how the family’s interests are understood and addressed. As a legal standard, best interest is anything but standard. There is no federal definition of best interest(s), and state definitions vary widely. As multiple authors point out in this issue of the journal, best interest is among the most ambiguous standards in child welfare law, and this ambiguity increases the likelihood of subjective decision- making that can reflect harmful bias. The lack of clarity on what constitutes best interests, and whose judgment prevails, in making those decisions is described adeptly in Cheri Williams’ article in this issue. She notes that the local child welfare culture and subjectivity in decision-making trump the actual law. She notes further that courts can become “rodeos” of subjective arguments over what constitutes the best interests of a child.

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The danger of subjectivity and bias extends to the bench, where judges and judicial officers receive arguments or reports of what is in a child’s best interests and often insufficient information about the details of important family dynamics and relationships or child- specific needs and desires. Rather, making a determination of “best interest of the child” when removing a child is inextricably linked to the child’s ongoing eligibility for federal

reimbursements to states for the cost of the child’s foster care maintenance. Therefore, we must ask in whose best interests are those decisions made — the child’s or the agency’s — and whose judgment decides what is in a child’s best interests? And absent a termination of parental rights, why wouldn’t a parent’s wishes —which are constitutionally protected — continue to carry the most weight in what is best for their own child?

10 | FIJ Quarterly | Fall 2022

FIJ Quarterly | Fall 2022 | 11

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