Doing What’s “Best” Isn’t Enough: Recognizing the Rights of Children
Stephanie Villafuerte, Executive Director of the Rocky Mountain Children’s Law Center
Our criminal justice system rests on a series of constitutional rights, among them the right to counsel and the right to remain silent. While our police force and justice system often act with the best intentions to keep our communities safe, we, as a society, have recognized that there are certain inherent rights of the accused that must be upheld. Today, these rights are seen as second nature, but historically, that was not always the case.
While the constitutional rights of the criminally accused have been fully realized, the children in Colorado’s child welfare system still await validation of their constitutional worth.
Reported on by the Denver Post and Channel 9News two weeks ago, the Children’s Law Center, made a simple request of the Colorado Supreme Court: before even addressing whether foster parents do, or do not, have any constitutional rights, first acknowledge that children themselves have a constitutional right to a stable, permanent home that must be recognized and protected at every stage of the process. This request is on one hand, so inherently basic, and yet, on the other, so very difficult for the child welfare system to recognize.
You’ve all heard the stories . . . children in child welfare who, after experiencing unimaginable trauma in their birth families, suffer continued disruption in the very system designed to protect them. There are currently 11,000 children in foster care in Colorado. Many of these children face multiple moves between foster and group homes, kin placements and residential facilities. These children change families, schools and communities with each move leaving a mark on their mental, emotional and educational wellbeing.
This instability is not for lack of incredibly intelligent, good-intentioned judges, caseworkers, attorneys, and foster parents. Today, our system’s very essence revolves around making decisions based upon what is in the child’s “best interests.” Colorado law requires us to put those “best interests” at the forefront. The reality, however, is despite the very best of intentions, children are often harmed by the system. At the end of the day, “systems” weren’t meant to raise children, so their results will always be imperfect.
As seen in the criminal justice context, constitutional rights are meant to hold even the most well-meaning of systems accountable to the basic beliefs that serve as the foundation of our society. Children in foster care are equally deserving of this constitutional “check” on a well-intentioned system. If we in child welfare are honest, the “best” of intentions don’t always lead to the best of outcomes.
Recognizing formally that children have a constitutional right to a stable, permanent home is not just a matter of rhetoric. The concept itself holds all of us in the system accountable, setting a higher bar for our judicial practice. It’s not about being a miraculous fix for the myriad of wrongs faced by kids in care. It doesn’t detract from the work of those who spend their livelihoods working to keep children safe or diminish the successes of the child welfare system. Rather, constitutional rights embody those core values of our society that almost go without saying, that represent the very best of who we are and the very essence of what we as a society hold most dear.
We are a system dedicated to protecting children from harm, yet we refuse to provide the constitutional safeguards to protect children from the harm that our own system inflicts.
It’s now up to the Court to play its part and say out loud what has for too long gone unspoken, because at the end of the day, doing what’s “best” for our kids could always be better.