Placement & Best Interest

As we work with and make decisions about children, 'Best Interest' is a central value. It is, however, important to understand that Best Interest is both a legal and a practice construct. From a practice perspective, best interest is based on a complex set of judgments that includes consideration of the environmental, physical, emotional, and social well-being of the child on both a short-term and long-term basis.

From a legal perspective, Best Interest is based on a similarly complex set of judgments that includes the practice perspective. That perspective is, however, combined with other considerations. Primary here are the rights and interests of parents, relatives, and 'interested third-parties.' As a function of public policy, those rights and interests hold higher precedence than practice considerations. The balance is in favor of parents first, then other relatives, and then interested third-parties.

In order to demonstrate that agency custody (of any type) is in the Best Interest of a child, it is, then, not enough to simply argue that, from a practice perspective, the child is 'better off' in agency custody than in the custody of parents, other relatives, or interested third-parties. We must be able to document that there are no parents, other relatives, or interested third-parties who can and will accept custody of the child and with whom the child will be safe and receive 'adequate' care and guidance. We must be able to document that we have conscientiously explored all known alternatives to agency custody and that there are no parents, other relatives, or interested third-parties who can and will safely and adequately care for the child.

When considering custody or requesting a foster placement, then, it is necessary to demonstrate that parents, all known relatives, and all potentially interested third-parties have been directly contacted and excluded based on a documented unwillingness or inability to care for the child 'safely and adequately.' In addition, the child may only remain in placement so long as there are no parents, other relatives, or interested third-parties who can and will safely and adequately accept custody of and care for the child. 'Adequately' as used here means that the child's needs are being met at a level that is consistent with safety and normal development. Relatives may not be held to a higher standard than would be used if returning the child to his/her parents.

It is the agency's responsibility to continuously seek out and work with parents, other relatives, and interested third-parties so long as the child is in agency custody. If the agency has permanent custody of the child, foster parents and other potential adoptive parents become 'interested third-parties.'

The central purpose of the agency is to identify children in the community who are not receiving safe and adequate care and to assure (as quickly as and to the extent possible) that their circumstances change so that they are receiving safe and adequate care, with a reasonable likelihood that this level of care will be permanent. This must be done within the context of both the legal and practice perspectives. Further, this must be done with a high and continuous sense of urgency. The developmental and long-term risk to the child exists at the point the agency initiates intervention and continues until the situation is fully resolved and the agency concludes its intervention. Only then are safety, permanence, and long-term well-being reasonably assured for the child; only then are the Best Interest criteria fully met.

(Notes)

1. In some situations, it is reasonable to suggest that the child's 'Best Interest' might not be served by being 'moved' to a relative due to the child's attachment to the current caretaker, if the child has been with the current caretaker for a long time (e.g., more than a year), if the child is older (e.g., over three-years-old), and if the child has no history with the relative (the relative is a 'stranger,' especially if the relative is not a grandparent). Even in these situations, the agency would need to document the special problems the child would likely have adjusting to the new environment if he/she is 'moved' to the relative's home.

2. If the agency is going to pursue not placing a child with a relative based on the child's attachment to the current caretaker and if that relative is otherwise suitable, the agency will actively work with that relative to pursue a meaningful relationship with the child short of the child's 'moving' to that relative's home. The relative will not be excluded from the case or from the decision process. If there is a disagreement related to visitation or custody that cannot be resolved between the relative and the agency, the agency will facilitate the opportunity for the court to make the final decision, including asking the court to join the relative as a party to the case, except that the agency will not make this request for any relative who has been carefully considered and explicitly determined by the agency to be inappropriate. This determination of 'inappropriate' must be based on current circumstances.

3. It is important to emphasize that foster care is a temporary arrangement that is, at times, necessary for a child while efforts are proceeding toward permanence for the child. Every day the child is in foster care must be used to pursue permanence for the child. The longer that takes, the less likely it is that the child will avoid the negative consequences of impermanence and instability in his/her life.

4. A child's being in foster care is a crisis and resolving that crisis as quickly as possible is urgent. This requires, among other activities, actively assuring that all potential relatives and 'interested third-parties' are identified and regularly updated about the process and 'asked' at each step along the way about their interest in the child and in participating in the permanence plan. A relative who was not previously interested might be interested now, given their present circumstances and the current status of the permanence plan for the child. The interest of relatives must be regularly updated and verified by the agency. This also serves to reduce the possibility that a relative will suddenly and unexpectedly become interested in a child and delay permanence due to the need to explore their last-minute interest.

5. The agency must thoroughly pursue 'alternative relatives' prior to asking the court to order custody of the child to the agency. This is particularly the case when asking for non-emergency custody.
By Gary A. Crow, Ph.D. September 24, 2017