The Best Interests of Individual Children

I don’t want to detain readers much longer debating the ongoing Lexi case or the Baby Veronica case, because I want to get to Walter Olson’s point about the “best interests of the child” standard. But I’ll spend this paragraph responding briefly to Prof. Fletcher’s recent comments. He’s right: I mistakenly referred to the Choctaw Tribe of Oklahoma as the Choctaw Tribe of Mississippi. On the rest, though, he couldn’t be more wrong. Even if it were true that California law required Lexi to be sent to Utah regardless of ICWA—and it’s not—that only reinforces my earlier point that the law should be the same for kids regardless of race. If it is in Lexi’s best interests to send her to Utah instead of letting the Pages adopt her, then why not use the ordinary best interests rule that applies to kids of all other races? Instead, the California courts fashioned what they call a different kind of best-interests rule for Indian children—literally separate-but-equal for this one ethnic group—which subordinates Lexi’s best interests to “other considerations.” As to Baby Veronica, it’s also not the case, as Prof. Fletcher implies, that the dutiful father was railroaded by the adoption process before heading off to war. In fact, he was stationed at Ft. Sill, four hours from his hometown, throughout the pregnancy and was only deployed to Iraq four months after Veronica’s birth. It was only then—long after explicitly abandoning the child he’d fathered—that he sought to veto the adoption that was unquestionably in Veronica’s individual best interests. If facts matter, there’s no excuse for disregarding these.

But Prof. Fletcher is right that all such cases involve complex facts. It’s a cliché, but true, that unhappy families are all unhappy in their own ways. All the law can hope to do is set general standards to protect the best interests of the children whose fates—through no fault of their own—turn on the acts or omissions of the adults in their lives. In seeking to protect them, the law has long employed the rule of the “best interest of the child,” an ancient principle that has “exist[ed] from time immemorial and has become the bedrock of our state custody statutory law.” That rule, as Justice Benjamin Cardozo said, requires judges to place themselves “in the position of a ‘wise affectionate and careful parent’ and make provision for the child accordingly.”

The key to the best-interests test is that it’s inherently individualized. It focuses on the needs and rights of this particular child in his or her specific circumstances. In Lexi’s home state of California, the best interests test is actually written into the statutes, which require courts to consider the child’s individual situation. And the California Supreme Court has invalidated rules that imposed blanket presumptions about child welfare rather than focusing on specific circumstances. In a 1992 case, it struck down a law that let birth mothers and their husbands object to adoptions, but that didn’t let unmarried fathers do so. This was irrational, the court said, because the state could not simply presume that “a child is inherently better served by adoptive parents than by a single, biological father.” Such a crude, one-size-fits-all presumption “bears no substantial relationship to protecting the well-being of children.”

That ruling paralleled a 1972 U.S. Supreme Court decision that struck down an Illinois law under which children of unmarried parents were taken into state custody upon the death of the mother, without proof of neglect on the father’s part. “It may be…that most unmarried fathers are unsuitable and neglectful parents,” the Court noted, “[b]ut all unmarried fathers are not in this category,” and a father should have a genuine opportunity to make his case based on his individual circumstances. “Procedure by presumption is always cheaper and easier than individualized determination,” but when a legal presumption “explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child.”

ICWA runs in the opposite direction. It imposes a single, blanket presumption—which can only be overcome if there’s “good cause”—that it’s in a child’s best interest to be placed with “Indian families” solely on the basis of that child’s DNA. And the Bureau of Indian Affairs has declared that “[t]he good cause determination does not include an independent consideration of the best interest of the Indian child because [ICWA’s] preferences reflect the best interests of an Indian child in light of the purposes of the Act.” Some courts have been more explicit. The Montana Supreme Court has declared it “improper” to consider “the best interests of the child” in ICWA cases because “ICWA expresses the presumption that it is in an Indian child’s best interests to be placed in conformance with the preferences.” The Texas Court of Appeals has ruled that using the best interest standard in ICWA cases “defeats the [law’s] very purpose,” because it “allows Anglo cultural biases into the picture.”

This is absurd. Everyone, including children, has a constitutional right to an individualized determination of his or her case, without having a judge tilt the scales because of that person’s ethnic ancestry. Yet in the name of “helping,” courts today routinely ignore this right on the theory that an individualized assessment of a child’s particular needs is an “Anglo cultural bias.” That boggles the mind.

Still, Walter Olson has a point that the best interests rule can be dangerously subjective. Several justices expressed that concern in Troxel v. Granville (2000), when they struck down a Washington State law that allowed third parties to petition a judge for visitation rights even against the wishes of parents. The Court ruled this invalid because parental rights, being fundamental rights, can only be infringed for extraordinarily important reasons. Something more than “best interests” was therefore required. Worse, Washington courts seemed to be applying a presumption against parental choices: “In effect, the judge placed on…the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters.”

Yet here, too, ICWA fails the test. The Act gives tribal governments power over foster care and adoption decisions that override the wishes of parents—as the Holyfield and Baby Veronica cases demonstrate. It presumes against an individualized consideration of a child’s circumstances, and requires prospective adoptive parents to meet the demanding “good cause” standard. And it does this not on the basis of any “best interests” determination at all—which, however subjective it might be, is at least focused on a child’s unique needs—but solely on the basis of the child’s biological ancestry.

The best interest standard could stand greater clarification, as could nearly all our laws—keeping in mind that no child protection system will be perfect. But the rules should not make it prohibitively difficult to rescue children from abuse or neglect. In Santosky v. Kramer (1982), the Court held that the relaxed “preponderance of the evidence” standard was too loose, and, like the standard in Troxel, risked too many false positives. But the Court also refused to adopt the highest evidentiary standard, “beyond a reasonable doubt,” because such a stringent rule might “erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.” ICWA, of course, adopts an even more stringent standard, requiring not just “beyond a reasonable doubt,” but also testimony from expert witnesses that a child faces imminent, severe injury. That rule is so demanding that it creates many false negatives.

There’s no easy answer to that dilemma—except that ICWA’s race-based, one-size-fits-all answer is plainly wrong.

If there’s one thing history teaches us, it’s that when Congress imposes a “presumption” about what’s in the best interests of all Indians, on account of their race, tragedies aren’t long to follow. It’s past time we stopped focusing on genetics, and concentrated our attention on protecting the best interests of all children as individuals.


Also from this issue

Lead Essay

  • Timothy Sandefur charges that the Indian Child Welfare Act renders children of Native American ancestry the only ones in the entire country against whom it is legal to racially discriminate. Not only that, but the racial discrimination at hand is being conducted by the government of the United States, and it often seriously harms the children involved. U.S. law typically attempts to realize the best interests of the child, but the ICWA abandons that standard. It declares that many genetically Native American children are “tribal resources,” even if they lack any cultural or emotional attachment to a tribe or its members. Sandefur documents several cases of serious abuse that have followed from this law and recommends reform.

Response Essays

  • Matthew L. M. Fletcher argues that the Indian Child Welfare Act has done a great deal of good by allowing Native Americans to preserve both their culture and their families. And this has not come at the cost of children’s well-being; numerous child welfare advocacy groups regard the ICWA as the “gold standard” for child welfare and even recommend that its provisions be extended to all children. Fletcher rebuts the charge that the ICWA was to blame for a recent, high-profile child custody dispute, and he laments that casual racism against Native Americans continues down to the present day.

  • Professor Kristen Carpenter explains the rationale for the ICWA and argues that it is not a piece of racial legislation. Rather, it respects the previously made determinations of the United States government about who is eligible for membership in Indian tribes, and it has proven in general to be an effective tool for opposing the forced assimilation policies that have done so much harm to Indian tribes’ culture in the past. Anecdotes of one case of child custody or another are unhelpful, she maintains, while the data shows that ICWA is generally working well, and that problems generally come from noncompliance or from other, unrelated factors.

  • Walter Olson agrees that the Indian Child Welfare Act is “an exceedingly bad law,” but he suggests that much of the rest of our child welfare system is flawed as well. The “best interests of the child” standard can lead to costly and exacting legal battles over just how good a particular parent may be. This is a nightmare for anyone, of course, but it hurts the poor the worst. Turning to the ICWA, Olson agrees that it commonly disregards individual rights and treats individuals as resources for a community with which they have no acutal affiliation. The ICWA puts tribes’ interests ahead of both those of children and parents, and it protects American Indian ethnicity while ignoring other ethnicities that a child may also have, and may even identify with more closely.