FIJ Quarterly - Fall 2022 Edition

coded in the same statements, indicating known relationships and tensions between these concepts. A tribal front-line worker described the environment of the tribal CW agency she works in: “The courts with the tribe that I work for, they will listen to just about any child. They will take their word into heavy consideration as long as the child is obviously able to convey their feelings and their thoughts… Even younger than 13, the tribe I work for will listen to the kiddo. But at the end of the day, when it comes to court hearings, most of the time the court is asking what does my (tribal child welfare) agency think in regard to the youth. And prior to that, we do our due diligence to find out from the youth themselves. Like, "What do you want to see happen?" Because essentially, we're advocating for what they want and what their voice is.” A GAL expressed a similar tension. “I don't know, I'd like to think in my mind that it wouldn't have changed because I felt like I tried to do... And I was aware at the time too, because I was part of the (redacted specific name) Guardian ad Litem office, like I knew the controversy around those two ideas (best interests and expressed wishes). And so, I think my representation was kind of a hybrid representation, to begin with…” One of the inherent challenges in best-interests doctrine, in addition to developmental capacity, is that it is not well-articulated, with no concrete guidelines for implementation. 12 The question becomes what information becomes a part of the best interest determination. The statement above from a tribal guardian-ad-litem indicates that listening to a youth’s expressed wishes is a part of their representation of the youth’s best interests. However, there is nothing in the best interest standard that indicates youth, regardless of age, should be consulted before a determination of best interests is made. Not consulting with youths or with the family at large, however, can clash with tribal culture. As a GAL remarked:

“… there’s so much bias that’s in foster care as you know. And so like, can you only imagine if I was a non-native white dude that comes into the tribal court saying, “Oh yeah, I know what’s best for these Indians. You know? And so I think the biased aspect of express interest... And that happens with best interest too, by the way... Like you’re representing their interest against their parents’ kind of dynamic, or representing their interest against their culture or against their community, you know? And not that I ever saw that happen, but it could happen. It could happen. I hear it all the time that it does happen actually… And naturally, that’s how things happen in their community to begin with, so there wasn’t like a legal like I’m representing this child’s interest against their parents, that would be crazy. And grandparents you don’t have standing here like that’s completely culturally opposite of like what the community values were.” The same guardian-ad-litem went on to question whether the adversarial setting is the best one in which to engage in child welfare practice for positive long-term outcomes. For the youths themselves, however, the tension between best interests and expressed interests frequently felt like a tension of (dis) respect. One of the young adults with lived experience commented that workers who listened to expressed wishes and then did nothing with them felt as if proceedings were happening to them instead of with them, losing feelings of agency and autonomy after a moment of vulnerability. “For the most part, yeah (treated as part of the team)… but then I feel like when I tried to say something, they wouldn't listen. They would try to assume. I guess it was the age thing at the difference too. I was 15 and trying to... I guess you can't until you're 16 or something like that. Okay. I had a voice but didn't have a voice. I had an opinion but couldn't really be in charge of my own plan. They weren’t really listening to me. They’re ______________ 12 Dolgin, 1996

just like, “Oh, that’s what he prefers, but this is what we’re going to do.” I’m like, “Damn, okay. Nice to know that this is not what we’re going to do… not necessarily do exactly what the kid wants, but at least make an attempt to find strategy around it or with it. They weren’t even trying to do that.” Of particular frustration was the emphasis that school was more important than permanency, with youths openly stating that school seemed secondary to having their say and being involved in decisions that greatly impacted their lives. School is important, but how can a youth focus on algebra when they know a judge is deciding their current and future lives on a far-off bench? That is not something to expect from anyone—let alone youth in care. Additionally, the adults with lived experience recognized the tension between their best interests and their expressed wishes from when they were children. One stated this reality starkly. “I knew I wanted to stay with my mom, but I didn't think my mom was ready to have all (of us kids-the full sibling set) back full time.” As this case indicates, sometimes the youth themselves have the developmental capacity to recognize that their expressed wishes may not be in their best interests. One front-line worker recognized that asking about expressed interests may actually be a great way to assess youths' current cognitive capacity, mental health, and decision-making capability. “I would say, especially for tribes, it's important to let the child, or whatever individual you're interviewing or working with, tell their story to you. That's going to be key to getting further engagement to building that rapport and that trust, is to allow them to tell you their story. Because not only does that give you an insight on how they've lived and viewed their experience, but it also helps you engage their cognitive ability, their understanding, it's showing them too that you're creating this space for them to tell their story. As well as also, again, going through their

Angelique Day

Claudette Grinnell-Davis

Dakota Roundtree-Swain

54 | FIJ Quarterly | Fall 2022

FIJ Quarterly | Fall 2022 | 55

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