FIJ Quarterly - Fall 2022 Edition

Best Interest Determinations: Lessons Learned from Tribal Child Welfare Agency, Court Professionals, and Youths Angelique Day, Claudette Grinnell-Davis, and Dakota Roundtree-Swain Introduction and Background

practice, sometimes called developmental jurisprudence , is most commonly seen in juvenile justice cases. However, as legal scholar Emily Buss has argued, similar jurisprudence can, and should, be carried over into dependency and maltreatment proceedings. 7 Buss argues that juvenile courts are forums for youth to develop decision-making experience, personal autonomy, and the ability to self- identify as system-involved youth—all developmental milestones in line with Erikson’s adolescent stage of development. 8 As a result, insofar as it is developmentally appropriate to do so, youths in these systems should not only be active in these proceedings but allowed to articulate their expressed wishes and have them taken seriously. These youths, whenever possible, should be treated with respect and be co-creators of the life that the child welfare s__y_s_te_m___i_s_c_a_r_v_ing out for them. 1 Buss, E. (2016). Developmental jurisprudence. Temple Law Review , 88, 741 2 Dolgin, J.L. (1996). Why Has the Best Interest Standard Survived?: The Historic and Social Context. Children’s Legal Rights , 16(2), 1 3 Buss, 2016. In general, the youngest age in which a case is remanded to adult court is 16. 4 Monahan, K., Steinberg, L., & Piquero, A.R. (2015). Juvenile justice policy and practice: A developmental perspective. Crime and Justice: A review of research, 44 5 van Bijleveld, G., Dedding, C., & Bunders, J. (2013). Children’s and young people’s participation within child welfare and child protection services: A state-of-the- art review. Child & Family Social Work, 20 . https://doi. org/10.1111/cfs.12082 6 United Nations. (2022, August 5). Treaty bodies countries—Ratification . layouts/15/TreatyBodyExternal/Countries.aspx 7 Buss, E. (2013). The developmental stages of youth participation in American juvenile court. In T. Gal & B. Duramy, (eds.) International Perspectives and Empirical Findings on Child Participation: From Social Exclusion to Child-Inclusive Policies . Oxford University Press, 304-332 8 Erikson, E. (1993). Childhood and Society. New York: W.W. Norton .

Since the institution of the first juvenile courts in the United States in the early 1900s, the legal concept of best interests has been well-established, under the argument that children need protection due to diminished developmental capacity. 1,2 Built into the American child welfare system since the Adoption Assistance and Child Welfare Act of 1980 (AACWA), best interests have been used to protect children deemed unable to make decisions on their behalf. Juvenile Courts apply the principle of best interests in all cases regarding minors, including when determining whether certain youths may be tried as adults in criminal court. 3 In juvenile justice cases, recent SCOTUS decisions have identified even violent youth offenders as children in need of protection due to arguments of either neurobehavioral underdevelopment or diminished responsibility. 4 In 1989 the United Nations on the Convention of the Rights of the Child (CRC) proclaimed internationally that children have the right to express their wishes, views, and dissents freely in judicial and administrative proceedings that are related to decisions about their lives, regardless of perceived diminished capacity. This call for increased youth participation has been heeded by the international child welfare community, which has conducted countless studies discussing youth participation in child welfare-related proceedings. 5 At the time of the writing of this paper, the United States is the only member country of the United Nations that has not ratified this Convention. 6 This extension of developmental psychology and behavioral neuroscience into legal

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50 | FIJ Quarterly | Fall 2022

FIJ Quarterly | Fall 2022 | 51

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