Did Anyone Ask the Child?: Recognizing Foster Children's Rights to Make Mature Decisions Through Child-centered Representation

• Citation: Vol. 72 No. 2
• Publication year: 2022

Did Anyone Ask the Child?: Recognizing Foster Children's Rights to Make Mature Decisions Through Child-Centered Representation

Katie Chilton

DID ANYONE ASK THE CHILD?: RECOGNIZING FOSTER CHILDREN'S RIGHTS TO MAKE MATURE DECISIONS THROUGH CHILD-CENTERED REPRESENTATION^†

Abstract

A child placed in foster care finds themselves in an especially vulnerable position. Removed from their homes, apart from family, and living with strangers, a foster child's voice often gets lost in the shuffle. While the Supreme Court has recognized some constitutional rights for children, legislators and judges tread lightly when expanding children's rights for fear of infringing upon parents' fundamental rights to determine the care and upbringing of their children. This situation creates a unique disadvantage for a child in foster care who is subject to the trauma of removal, placement in a temporary home of strangers, outside the bounds of parental protection, and often without a voice or an advocate.

This Comment focuses on the plight of foster children in America's legal system and how children's lack of decision-making authority leaves their rights under-protected. Through analysis of prominent Supreme Court cases discussing parents', children's, and foster parents' rights, and an examination of state and federal foster care legislation, this Comment argues that the foster child often falls through the gaps among parents, foster parents, and state officials, none of whom exercise full authority over the child. Moreover, the Court's justification for its failure to grant children the full spectrum of rights rests largely on the premise that the child is cared for by a fit, loving parent who acts in the child's best interests. However, for the child in foster care, this premise is flawed from the start. The foster child is not in the custody of their legal parent.

This Comment argues that courts must adopt and expand the mature minor doctrine to provide a framework for entertaining and assessing the foster child's ability to make rational, informed decisions about their own life. Moreover, states must amend their statutory child welfare schemes to guarantee children in foster care the right to an attorney, and, specifically, an attorney who advocates for the child's expressed wishes throughout the child's time in foster care. Through these measures, states can return some of the continuity that

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children in foster care have lost by allowing the children themselves to have a voice.

Table of Contents

Introduction..........................................................................................387

I. Three's a Crowd: The Rights of Legal Parents and Foster Parents, and the Powers of the State.....................................388

A. The Foster Care System: An Overview .................................... 389
B. Constitutional Rights of the Parent ......................................... 392
C. Parens Patriae: The Powers of the State .................................395
D. The Rights of the Foster Parent............................................... 396
E. The Rights Gap: The Struggle that Ensues Where No Party Has Complete Legal Rights............................................................ 400

II. What the Supreme Court Says (and Does Not Say) About Children's Rights.......................................................................401

A. The Supreme Court and the Constitutional Rights of Children .................................................................................401

1. The Abortion Cases: The Mature Minor Doctrine and Judicial Bypass Procedure ............................................................. 404

B. Constitutional Rights for Foster Children? A Blank Slate........ 408

III. Beyond the Courtroom: Federal and State Foster Care Legislation..................................................................................411

A. Federal Legislation and Foster Care Reform .......................... 411
B. State Foster Care Legislation..................................................416
C. Return to the Rights Gap: What Can Be Done? ....................... 420

IV. Bridging the Gap: Using the Mature Minor Doctrine and Child-Centered Representation to Amplify Children's Voices .....422

A. Changes from the Bench: Use and Expansion of the Mature Minor Doctrine ................................................................................. 422
B. The True Child Advocate: New Standards for Child Advocacy.......................................................................426

V. Implications of Asking the Child.............................................432

Conclusion.............................................................................................435

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Introduction

On June 17, 2021, the Supreme Court decided its second major case concerning the foster care system.¹ Despite the Court's careful contemplation of the rights attendant to parties on both sides of the litigation, one consideration remained notably absent from the Court's determination: the interests of the foster child. In Fulton v. City of Philadelphia, the Court considered whether a religious foster care agency contracting with the City of Philadelphia could discriminate against prospective foster parents on the basis of a couple's sexual orientation.² The Court unanimously concluded that the City's refusal to contract with the religious foster care agency violated the agency's First Amendment rights.³ However, as is often the case with state involvement in the lives of children, the Court carefully deliberated the constitutional rights of the adult parties without more than a mere nod to what rights and interests the foster children themselves might have in the situation when, arguably, they were the most affected party.⁴

This Comment explores the rights of the foster care child against the backdrop of the children's rights movement, focusing on how the broader debate surrounding children's rights intersects with the specific needs of the child in foster care. This Comment argues that more active, decision-making rights must be afforded to children in foster care to truly facilitate the best interests of the child. The current state of the foster care system fails to adequately protect the rights of children, demanding a more child-centered solution.

This Comment proceeds in five parts. Part I provides an overview of the rights of legal parents, the State, and foster parents as they currently stand, discussing how the fractured legal oversight granted to each of these parties creates what this Comment calls the "rights gap" in the life of the foster child. Part II outlines the constitutional rights of children both inside and outside of state custody, specifically via analysis of the landmark Supreme Court cases that have recognized and limited the rights of children. Secondly, it explores the

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origins and mechanics of the mature minor doctrine. Part III examines how federal and state foster care legislation expand and interpret the rights of the foster child. It then argues that the rights of foster children primarily fall into two categories—what this Comment dubs "passive" rights and "active" rights—asserting that children in foster care are granted the former under most state statutory schemes but denied the latter.

Part IV proposes a two-part solution that increases the protection of rights for children in foster care. First, juvenile and state courts must implement and expand the mature minor doctrine as a framework for deferring to the wishes of the child, relying on a child's age, maturity, and moral agency to determine the level of deference that should be afforded to the child's wishes. Second, states must mandate legal representation for foster children in all judicial or quasi-judicial actions in the form of a child-centered attorney who represents the express wishes, rather than best interests, of the child. Finally, Part V addresses the implications of the two-part solution advocated in Part IV.

I. Three's a Crowd: The Rights of Legal Parents and Foster Parents, and the Powers of the State

This Part provides an overview of the rights of key figures in the foster child's life: the legal parent, the State, and the foster parent. First, this Part discusses the mechanics of the foster care system and how it works. Second, it examines Supreme Court cases establishing and defining parental rights governing the upbringing and care of the child. Third, it explores the power of the state to intervene in the parent-child relationship, analyzing what countervailing interests allow the state to remove a child from the custody of their legal parents. Fourth, it examines the rights of the foster parent, primarily exploring a sampling of state laws and the Court's 1977 holding in Smith v. Organization of Foster Families for Equality and Reform (O.F.F.E.R.)⁵ as a basis for defining the outer limitations of the foster parent's rights. Finally, it argues that these three parties fail to provide adequate protection for the rights of the foster child due to the incomplete set of rights held by each individual party.

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A. The Foster Care System: An Overview

On any given day in the United States, there are over 400,000 children in foster care.⁶ A child enters foster care for a variety of reasons, including voluntary surrender of the child by the parents; death or incarceration of the child's parents; or the determination of parental unfitness due to abuse or neglect.⁷ In these situations, the state assumes temporary care of the child until they can be reunited with the parent or the state elects to terminate the parent's rights to the child, making them eligible for adoption.⁸ During this interim period, the state assumes legal custody of the child, but often transfers physical custody to a foster care agency, which then places the child in a temporary living situation with foster...