permanency hearings. 12 There were some children who were happy with and well-served by their
foster care placement and limited family visitation when I picked up their cases, but many others
were desperate to go home. Listening to my clients changed my perspective on the system and my
role in it as a child advocate.
I did not know it at the time, but the child advocacy field was in the midst of a sea of
change. From the advent of the federal role in child welfare in the 1970s and the mandate of the
Child Abuse Prevention and Treatment Act (“CAPTA”) 13 that states ensured that all children
before the juvenile court had a guardian ad litem (GAL), the field had been influenced by the
parens patriae principle. 14 It was thought that judges needed “eyes and ears” on the ground to
advise them on what a child’s best interests were. Even though New York, unlike most states,
guaranteed a lawyer for each child in dependency cases, our role as defined in statute was to protect
children’s interests as well as to assist them in expressing their wishes to the court. 15 In difficult
cases, judges did not like when I advocated more for the latter than for my own personal views on
the former. At the time, I was a twenty-something white man and did not think I was in much of a
position to say what was “best” for most of my clients, who were so different from me in so many
ways. 16 To be effective, however, I had to couch my client-directed advocacy in language that
made it sound like I was offering a best interests analysis. This was more successful when I did
not oppose the court’s making a finding of parental maltreatment and exercising jurisdiction. It
was much more difficult to claim that dismissal of the entire case served a child’s best interests,
but I did try sometimes. Paternalism17 was the dominant norm in the entire field for a very long
time, written into statutes and practice guidelines, and baked into the basic operating assumptions
fueling judges and lawyers alike.
Many trace the birth of the “best interests of the child” norm to Professor Joseph Goldstein
and his co-authors of a trilogy of books by that name. 18 The books were revolutionary in that they
impelled a reckoning with norms, many of which came to be seen as regressive and distasteful,
that had dominated the areas where the law impacted children for a very long time. Goldstein
12 Spinak, supra note 4, at 523–24 (describing the creation of the Permanency Unit at Legal Aid). As part of the
federal-state partnership for child welfare, federal law requires any state receiving federal child welfare financing to
ensure that every child in its foster care system receive an annual permanency hearing in the relevant state court. At
such hearings, the court must determine what the child’s permanency plan is, such as family reunification, adoption,
or another planned permanent living arrangement. See 42 U.S.C. § 675( 5)(C). In New York State, we conduct
permanency hearings twice a year, and we inquire into and make orders concerning a variety of issues designed to
further children’s permanency, such as the services the parents and children are receiving and the parent-child
visitation plan. N. Y. Fam. Ct. Act § 1089 (2007).
13 Child Abuse Prevention and Treatment Act, 42 U.S.C §§ 5101-5107 (2010).
14 42 U.S.C. § 5106(a)(b)( 2)(B)(xiii) (2018).
15 N. Y. Fam. Ct. Act § 241 (2010).
16 Martin Guggenheim, The Right to be Represented but Not Heard: Reflections on Legal Representation for Children,
59 N. Y.U. LAW. REV. 76 (1984).
17 The definition of paternalism is somewhat contested in the academic literature on law, philosophy, and behavioral
economics, but a decent starting point might be “the restriction of a subject’s self-regarding conduct primarily for the
good of that same subject.” Thaddeus Mason Pope, Counting the Dragon’s Teeth and Claws: The Definition of Hard
Paternalism, 20 GA. ST. U. L. REV. 659, 660 (2004).
18 JOSEPH GOLDSTEIN, ALBERT J. SOLNIT, & ANNA FREUD, BEYOND THE BEST INTERESTS OF THE CHILD (1973);
JOSEPH GOLDSTEIN, ANNA FREUD, & ALBERT J. SOLNIT, BEFORE THE BEST INTERESTS OF THE CHILD (1979); JOSEPH
GOLDSTEIN, ANNA FREUD, ALBERT J. SOLNIT, & SONJA GOLDSTEIN, IN THE BEST INTERESTS OF THE CHILD (1986).