• November 2019
  • Vol. 20, No. 9

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Pursuing the Best Interests of Children

Written by Melissa D. Carter, clinical professor of law, executive director, Barton Child Law and Policy Center, Emory Law School, Atlanta, GA

Each year, the Children's Bureau celebrates November as National Adoption Month to increase public awareness of the need for permanent families for the thousands of children and youth in foster care. This year's National Adoption Month theme is "Youth Voices: Why Family Matters." This theme seems apt for many reasons, primarily because adoption is lauded as a universal good for children and youth in the foster care system. But is adoption, in fact, a universal good for children and youth in foster care? Or, does this theme resonate more because of what child welfare professionals believe adoption to represent? 

Our nation's priority is to ensure children have safe, supportive, and permanent families. We pursue that end under the mantle of the "best interests of the child" standard, which is the governing legal standard for the formation of the parent-child relationship, including through adoption, and for the ongoing regulation of the family. The meaningfulness of this standard is something that has always preoccupied my thinking as an adoptee and, later, as an adoption practitioner and child welfare policy advocate. Although my family was perfectly imperfect, I am unendingly curious about how a cast of unfamiliar professionals could so confidently draw conclusions about what—at 5 days old—was in my lifelong best interests. The law gives a framework whereby permanent decisions made about the direction of a child's life are guided by a set of factors, legal standards, and many inputs. But, these rules and guidelines, even if framed in terms of a child's interests, necessarily stem from the adult perspective. 

One adult perspective is reflected in the hierarchy of permanency outcomes set forth in federal child welfare law. When a child cannot be reunified with his or her biological parents, adoption is the preferred permanency goal. Certainly, there are virtues to adoption. But, the rightful concern of child welfare system practitioners, researchers, and policymakers is with permanency, a construct that encompasses both legal security and emotional security. Because of the law's "rule of two," by which a child can only have two legal parents, the adoption process operates first to legally estrange the child from his or her biological family and, then, to construct anew a legal family with the adoptive parents. Adoption records are sealed from public inspection, and the child's original birth certificate is cancelled and replaced with a reissued birth certificate naming the adoptive parents. Under adoption's legal framework, these steps are technically necessary, and they offer certainty to the child's new family. In that way, the process makes a lot of sense. But a child's sense of family is about much more than the family's state-created legal status. 

Research has shown that some youth in foster care do not necessarily desire to be adopted. They report ambivalence and disbelief that adoption, or permanency in general, is something meant for them. They fear the loss of connections to family and friends, which is a legal fact of adoption. And the attitudes of these youth about adoption appear to affect adoption outcomes, at least in terms of how the system currently measures those outcomes. We measure timely and compliant filing of petitions to terminate parental rights, we criticize reunification plans that are in place too long, we judge the selection of guardianship as an inferior permanency option compared with adoption for young children, and we monitor the length of time to achieve a finalized adoption. These measures are properly justified by federal law and by research- and values-based consensus about what is best for children. But they are inherently deficient. The law has the power to construct, deconstruct, and reconfigure families, but it has not yet evolved as a tool for cultivating or assessing the quality of the parent-child relationship. Put another way, complying with the law to find families and finalize a process will not tell us why family matters to a child or what family structure is in the child's best interests.

Figuring out how to engage children and youth about why family matters to them and about the adult process-based decisions that must be made is the actual moment of obligation, rather than permanency, per se. I am an expert in exactly one adoption—my own. But my experience is consistent with what is known from research. Adoption is a process of grief and loss, not just a matter of a judicial decree. It roots a life-long journey of identity seeking, belonging, and acceptance. Children and youth fare better—are more resilient—through this process of family reconstruction when they feel a sense of personal control over their lives. That means that our pursuit of permanency must extend beyond the lens of the law and the reach of regulation and oversight. It must be more than categorical preferences for certain family structures. We must suspend adult agendas and set aside adult perspectives to enter the child's world, to value relationships as the child does, and to pace change at a rate the child can tolerate. 



 

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