Last month, at the oral argument in Brackeen v. Haaland, Chief Justice John Roberts repeatedly expressed concerns that the Indian Child Welfare Act was displacing the traditional “best interest of the child” standard used to make decisions for children in foster care. At one point he stated: “So my point is that in that particular situation, the best interests of the child would be subordinated to the interests of the tribe?”
In fact, throughout the argument, Roberts and several of his colleagues suggested that the entire foundation of the child protection system would be undermined if judges were not permitted to apply the best interests standard in child welfare proceedings.
One observing the argument might conclude that the best interests standard referenced by the justices was some sort of bulletproof scientific formula, where data is fed into the minds of judges, who then miraculously discerned the one absolute outcome that is truly best for a child. Stripping judges of the ability to use this objective formula, then, would deprive children from achieving the one and only trajectory in their life that would serve their well-being. No system that cares about children would inflict this type of harm on them.
As I listened to how the justices referred to this “standard,” I sat in disbelief as to how little they understood about how it is applied in practice. I would argue that the phrase “best interests of the child” is not a standard at all, but simply unfettered discretion disguised as a legal principle.
This phrase simply allows a juvenile court judge to do whatever they please without constraint. It allows them to govern their fiefdom in whatever manner they chose, with little to no appellate oversight. Just research how many times appellate courts have reversed a trial court’s best interest determination. Your efforts will produce a very short list.
Giving judges this level of unfettered discretion is dangerous, especially if we pretend that they are actually applying some sort of legal standard when doing so. Recently, Chief Justice Bridget Mary McCormack of the Michigan Supreme Court highlighted the many shortcomings of the child protection system, including its use of the best interest standard. She wrote, “The best-interests standard is capacious, allowing for individual, subjective biases about parenting to drive decision-making. This isn’t a new observation, which makes it all the more frustrating.”
In fact, if Chief Justice Roberts and his colleagues had researched their court’s case law, they would have read about their predecessors’ disdain of the best interests standard. Justice William Brennan, in Smith v. Organization of Foster Families for Equality and Reform noted that it allowed “social workers of middle-class backgrounds, perhaps unconsciously, … to favor continued placement in foster care with a generally higher-status family” because of a “bias that treats the natural parents’ poverty and lifestyle as prejudicial to the best interests of the child.” Similarly, in Lassiter v. Department of Social Services, the majority observed that “[t]his Court more than once has adverted to the fact that the ‘best interests of the child’ standard offers little guidance to judges, and may effectively encourage them to rely on their own personal values.”
The fact that this “standard” allows justice to be dispensed based solely on the predilections and biases of individual judges should worry us all. Whether a child is separated from their parents, placed with kin, or permanently deprived of their legal relationship with their parents hinges on whose courtroom their case is heard in and the personal beliefs of that judge. It creates justice by luck.
ICWA is the “gold standard” precisely because it rejects a world where judges get to do as they please.
Instead, when it is enforced, it provides real legal standards that carefully constrain decision-making. A child may only be placed in foster care if “continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” and the same litmus test exists later if a parent’s rights are on the line.
If a child must enter foster care, it prescribes a specific order of preferences for placement, starting with the child’s extended family and then continuing with those who understand the child’s culture. Only where other options are exhausted can a child be placed with true strangers to the child.
While the Supreme Court controls the fate of ICWA, the rest of us can use ICWA as our North Star on what actual standards in child protection cases can look like. We should use the precariousness of ICWA as our invitation to rewrite child protection statutes and reject the falsity that the best interests of the child is an actual legal standard.
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