Emory Law Journal


Katie Chilton


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