clpABA Child Law Practice
Vol. 36 No. 4 July/August 2017 CLP Online: www.childlawpractice.org SPECIAL FOCUS: KINSHIP CARE
Kinship Care is Better for Children and Families What’s Inside: by Heidi Redlich Epstein 79 CASE LAW UPDATE he idea of family members assist- Both child welfare law and policy Ting and supporting each other is prioritize placing children with grand- 83 SYSTEM REFORM not new. This is a traditional practice parents, relatives, or close family Creating a Kin-First Culture in most cultures. The foster care sys- friends, known as kinship care. Pursu- in Child Welfare tem is starting to incorporate kinship ant to 42 U.S.C. 671, states must “con- care as a permanency option for chil- sider giving preference to an adult rel- 88 IN PRACTICE dren. Efforts are underway to remove ative over a nonrelated caregiver when Recruiting and Supporting barriers to kinship placements, includ- determining placement for a child, Kinship Foster Families ing removing bureaucratic processes provided that the relative caregiver and streamlining legal proceedings to meets all relevant state child protection 90 IN LITIGATION allow relatives to safely care for chil- standards.” Most state laws and poli- Sixth Circuit Case Opens dren and maintain important family cies also support a priority for place- Door to Equal Pay and Support connections. Efforts are also beginning ment with a relative. Additionally, the for Relative Caregivers to examine foster care licensing re- federal Fostering Connections Act to 92 LAW & POLICY UPDATE quirements, supports, and services for Success and Increasing Adoptions Act Promising Practices When kin, and approaches to complex family of 2008 acknowledges the important Working with Immigrant dynamics that affect kin and their abil- role relatives play in the life of a child Kinship Caregivers ity to care for children. and encourages states to connect foster children with their relatives. 96 PRACTICE TOOLS Kinship Care Overview New Resources and A total of 7.8 million children live Benefits of Kinship Care Developments for Kinship with a relative who is the head of the Research shows that living with rela- Advocates household.1 More than 2.5 million tives is better for children and benefits of these children are raised by kin them in several ways. 98 JUDGE’S CORNER Supporting Relative without a birth parent in the home.2 However, only roughly 120,000 (about Minimizes trauma. Placement with Caregivers in Los Angeles— 5%) of these children are living with kin caregivers when children can- An Interview with Judge Michael Nash, Ret. kin who are foster parents.3 States are not live safely with their parents can realizing the value of kinship caregiv- minimize the trauma of removal. When ers, as the number of children enter- children are removed they often lose 100 TRENDS & TIPS ing care increases and the number everything they know—their parents, Grandparents Raising the of licensed nonrelated foster homes their home, their siblings, friends, Children of the Opioid decreases as evidenced by the increase school, pets, etc. Placing a child with Epidemic in the percentage of children in foster family diminishes this loss. Addition- care with kin from 24% in 2008 to ally, relatives often are willing to take 29% in 2014.4 The current system is large sibling groups, live in the same poised but not yet designed to take the neighborhood therefore allowing for unique challenges of placing children continuity of school and community, with kin into account. (Cont’d on p. 77) Vol. 36 No. 4 ecuring CLP Online—www.childlawpractice.org 77 (Cont’d from front page) caregivers to become legal guardians Follow CLP: and provide the comfort of living with of children with much-needed finan- someone the child knows and shares a cial assistance and without the need to twitter.com/ABACLP facebook.com/abaclp relationship with. remain in the foster care system.
Improves children’s well-being. Re- Improves behavioral and mental ABA Child Law PRACTICE search confirms that compared to chil- health outcomes. Children in kin- http://www.childlawpractice.org dren in nonrelative care, children in ship homes have better behavioral and ABA Child Law Practice (CLP) kinship homes fare better, as measured mental health outcomes. One study provides lawyers, judges and other pro- by several child well-being factors.5 showed children in kinship care had fessionals current information to en- Children in the care of relatives expe- fewer behavioral problems three years hance their knowledge and skills, and rience increased stability, with fewer after placement than children placed improve the decisions they make on placement changes, decreased likeli- into traditional foster care. This study behalf of children and families. Topics hood of disruption and not as many also found children who moved to include: abuse and neglect, adoption, foster care, termination of parental school changes. Relatives are more kinship care after a significant time in rights, juvenile justice, and tort ac- foster care were more likely to have tions involving children and families. behavioral problems than children in Children in the care of relatives kinship care from the outset. The long- CLP is published monthly by the ABA term effects of these relationships was Center on Children and the Law, experience increased stability, also studied and the formation of a 1050 Connecticut Ave., NW, Suite 400, with fewer placement changes, Washington, DC 20036. close relationship with an adult, such decreased likelihood of disrup- as a kinship caregiver, was found to Director: Prudence Beidler Carr tion and not as many school predict more positive mental health as CLP Staff: changes. an adult. Editor & Designer: Promotes sibling ties. One important Claire Chiamulera, 202/662-1724 likely than nonrelatives to support the benefit of kinship care is the increased [email protected] child through difficult times and less likelihood of living with or staying Case Law Summaries: likely to request removal of problem- connected to siblings. Data from the Eva Klain, Emily Peeler, Dana Leader, atic children to whom they are related. Illinois Survey of Child and Adoles- Aisha Prudent, Stacy Ham The children themselves generally cent Well-Being (ISCAW), a statewide Subscriptions: express more positive feelings about study of well-being and service deliv- • $109 individual rate their placements and are less likely to ery for children involved in substanti- • $185 institutional, agency, library, ated child maltreatment investigations, and law firm subscribers run away. Subscribe online: www.childlawpractice.org showed that in 2013, 80% of children Send check or money order, made payable to the: Increases permanency for children. with one or two siblings in care were American Bar Association, 1050 Connecticut Kin caregivers also provide higher placed together as compared to 66.9% Ave., NW, Washington, DC 20036 levels of permanency and children for children placed in traditional fos- Subscription Inquiries & experience less reentry into foster care ter homes. For children with three or Address Changes: when living with kin. Relatives are more siblings in care the disparity is Call: Claire Chiamulera, 202/662-1724 more likely to provide a permanent even greater with 53.5% of siblings E-mail: [email protected] home through guardianship, custody placed together in kinship homes and or adoption. Currently about 32% of only 1.8% placed together in tradi- Copyright © 2017 American Bar children adopted from foster care are tional foster homes.6 Association, ISSN 2161-0649 adopted by relatives. Another 9% exit The views expressed herein have not been foster care to some form of guardian- Provides a bridge for older youth. approved by the House of Delegates or the Board ship with kin. Under the Fostering The connection to family or another of Governors of the American Bar Association, Connections Act, 33 states, the District supportive adult is critical for older and accordingly, should not be construed as representing the policy of the American Bar of Columbia, and six tribes have taken youth. Research shows it is key for Association. the option to operate federally funded youth to have permanent, emotionally Guardianship Assistance Programs sustaining and committed relation- designed for children and youth who ships to reach self-sufficiency and to have been in foster care with a relative reduce the risk of negative outcomes for at least six months. This subsidized such as homelessness and criminal permanency option allows existing kin involvement. A key recommendation (Cont’d on p. 82) 78 CLP Online —www.childlawpractice.org Vol. 36 No. 4 CASE LAW UPDATE
School District Must Allow Transgender Student to Use Bathroom of Identified Gender Whitaker v. Kenosha Unified School District, 2017 WL 2331751 (7th Cir.). The Seventh Circuit confirmed a lower that in order to use the boys’ restroom In that case, the Supreme Court found an court’s preliminary injunction after his gender in the school’s official records employer had violated Title VII after dis- concluding a transgender student needed to be changed by providing un- criminating against a female employee who had been denied use of the boys’ specified legal or medical documenta- for being too masculine. The Court restroom was likely to suffer irrepa- tion. Ash submitted two letters from doc- interpreted Title VII broadly to mean rable harm without the preliminary tors documenting his gender dysphoria. Congress “intended to strike at the entire injunction and was likely to succeed The school then required Ash to have spectrum of disparate treatment of men on a Title IX sex discrimination claim proof of surgical transition, which is pro- and women resulting from sex stereo- and an equal protection violation. hibited for someone under 18 years old. types.” The Seventh Circuit extended this The court determined the student The school district never provided Ash logic to school districts and said a policy would likely succeed on the Title IX with written details about the bathroom requiring someone to use a bathroom sex discrimination claim based on a policy. that does not conform with their gender theory of sex-stereotyping. The court During the summer between his identity punished them for their gender also determined heightened scrutiny, junior and senior year Ash filed a com- nonconformance, violating Title IX. not rational basis, would apply to the plaint alleging the treatment he had The court determined heightened student’s equal protection claim. received violated Title IX and the Equal scrutiny applies to Ash’s equal protec- Protection Clause of the Fourteenth tion claim because the school district Ash, a senior in the Kenosha Unified Amendment. The district court enjoined made a sex-based classification that School District, has a birth certificate the school district from denying Ash treats transgender students differently. designating him as female. However, access to the boys’ restroom, enforcing Therefore, the school district had to have Ash began openly identifying as a boy a policy preventing his restroom use, a justification that was “exceedingly per- his freshman year of high school. His disciplining Ash for his restroom use, or suasive” serving important governmental sophomore year he told his teachers and monitoring his restroom use. The school objectives and discriminatory action classmates to refer to him as Ash/Ash- district appealed. substantially related to achieving those ton and to use male pronouns. Ash also The U.S. Court of Appeals for the objectives. This justification could not began seeing a therapist who diagnosed Seventh Circuit upheld the preliminary be based on overbroad generalizations him with gender dysphoria and he began injunction after applying a two-part about sex or sex-based stereotypes. hormone replacement therapy. During test. First, Ash was required to show he The school district argued it needed his sophomore year Ash asked to use the would suffer irreparable harm, he had to protect the privacy rights of all stu- boys’ restroom and was told he could inadequate remedies at law, and his case dents because the presence of a transgen- only use the girls’ restroom or a gender- had a reasonable likelihood of success on der student in the bathroom infringed on neutral restroom in the school’s main of- the merits. Second, the court had to bal- the privacy rights of other students who fice, to which only he would have access. ance Ash’s harms with the harms of the did not share biological anatomy. The His junior year, after using the boys’ school district or public. Seventh Circuit disagreed because it was restroom for six months without inci- The court found Ash demonstrated based on “sheer conjecture and abstrac- dent, Ash was the only student required irreparable harm and would have no tion.” The court noted Ash had used the to use gender-neutral restrooms located adequate remedies at law. Harm is con- bathroom for six months without inci- on the opposite side of campus from his sidered irreparable if it “cannot be pre- dent and likened a transgender student’s classrooms. vented or fully rectified by the final judg- presence in the bathroom to being no dif- Ash felt these bathroom restrictions ment after trial.” Experts testified Ash’s ferent than an overly curious student of undermined his transition. The restric- use of the boys’ restroom was integral to the same biological sex or pre-/post-pu- tions also caused him anxiety and fear his transition and emotional well-being bescent children who differ anatomically. of punishment if he used the boys’ rest- and the school district’s actions directly After determining Ash would suc- room; therefore, Ash restricted his water caused significant psychological distress, ceed on the merits, demonstrated irrepa- intake to avoid using the restroom. This placing him at risk for life-long dimin- rable harm, and had no adequate remedy plan was problematic because he had ished well-being and life-functioning. at law, the Seventh Circuit then had to been diagnosed with vasovagal syncope This life-long distress and diminished balance Ash’s harms with the possibility requiring him to drink six to seven bot- well-being also demonstrated a monetary of harm to the school district or public tles of water a day to avoid dehydration, remedy would not be adequate. as a whole. The school district argued resulting in fainting and/or seizures. Ash The Seventh Circuit held Ash would the harm impacted all 22,160 students suffered from migraines, anxiety, depres- likely succeed on a Title IX claim based in the district. The court found the harm sion, suicidal ideation, and fainting due on a sex-stereotyping theory. The court was speculative because Ash used the to the restroom issue. likened the claim to the U.S. Supreme boys’ bathroom without incident for six Ash met with the school several Court Title VII decision in Price Water- months and no students had complained. times to resolve the issue. He was told house v. Hopkins (490 U.S. 228 1989). Vol. 36 No. 4 ecuring CLP Online—www.childlawpractice.org 79 CASE LAW UPDATE continued Research performed on Westlaw compliments of West Group. STATE CASES is intended to protect. Child threatened to offenses. Evidence was sufficient to sup- Alaska hurt herself if returned to live with father port conviction for first degree cruelty to Reasner v. State, Dep’t of Health & Soc. and stepmother but evidence did not show child. Medical examiner testified child’s Servs., 2017 WL 2209883 (Alaska). daughter’s risk of harm was result of fail- death was caused by traumatic head inju- LIABILITY, NEGLIGENT ure or inability by father. ries not roughhousing with other children. SUPERVISION On cross-examination, defendant admitted Alleged victim of sexual abuse by fos- Connecticut he lied about not hitting child. In re Natalie S., 2017 WL 2367429 ter brother brought action against child Idaho welfare agency, claiming negligence in (Conn.). DEPENDENCY, Idaho Dep’t Health & Welfare v. Doe, investigating reports of harm while agency REUNIFICATION 2017 WL 2392509 (Idaho). had legal custody of her, supervising and Connecticut Supreme Court held child TERMINATION OF PARENTAL monitoring her foster home, and fail- welfare agency had no obligation to con- RIGHTS, MENTAL HEALTH ing to investigate reports after she was tinue reunification efforts for mother in ne- Mother appealed termination of her paren- adopted by foster parents. Trial court glect proceeding after father was awarded tal rights, arguing impossibility to com- erred in granting summary judgment to temporary custody and guardianship of ply with case plan due to mental health agency because genuine issue of fact about child. Plain language of governing statute issues, child welfare agency’s failure to when victim discovered agency may have required agency to make reasonable efforts show she could not carry out her parental played role in allowing abuse and whether to unify “a parent” with child, and once responsibilities, and termination was not victim’s foster parents completed required case entered disposition phase, focus was in child’s best interest. State supreme court training. on best interests of child. found evidence was sufficient to termi- Delaware nate mother’s parental rights. Mother’s Arkansas Div. of Fam. Servs. v. O’Bryan, 2017 WL noncompliance was intentional and not Earls v. Ark. Dep’t Human Servs., 2017 2376401 (Del.). CUSTODY, SEX caused by mental health, and agency did WL 1960380 (Ark.). TERMINATION OF OFFENDER REGISTRATION not intend to show she could not carry out PARENTAL RIGHTS, PATERNITY State supreme court held child welfare parental responsibilities but rather that she State supreme court held trial court failed agency lacked authority to require father, did not do so. to establish father’s status as “parent” who was a registered sex offender, to leave and thus could not terminate his parental family home under Child Protection from Iowa rights. At time of termination hearing, Sex Offenders Act. Act’s presumption State v. Graham, 2017 WL 2291386 father had not been found to be “parent,” against custody, residency, and unsuper- (Iowa). JUVENILE JUSTICE, DUE trial court did not recognize him as bio- vised visitation only applies in custody PROCESS logical father and continued to treat him proceedings. Agency admitted children Juvenile defendant appealed lifetime as putative father, and statutory grounds experienced no alleged abuse or neglect special sentence of parole and lifetime sex for termination included requirement that other than witnessing domestic violence offender registry 2,000-foot rule, arguing father be found to be “parent.” between parents, for which wife was that sentence was cruel and unusual pun- arrested. ishment for juvenile. State supreme court California found sentence was not cruel and unusual In re J.S., 217 Cal. Rptr.3d 91 (Ct. App. Florida because juvenile offender could petition 2017). DEPENDENCY, DUE PROCESS B.R.C.M. v. Dep’t of Children & Fam., for early discharge from both sentences, Appellate court found mother’s due pro- 2017 WL 1709786 (Fla.). with discretion by parole board. Iowa case cess rights were violated when juvenile DEPENDENCY, IMMIGRATION law already held such sentences were not court prevented her from testifying about Minor from Guatemala filed for depen- excessively punitive and defendant failed minor son’s relationship with sibling to dency to obtain legal residency in United to identify any injury to him by 2,000-foot support sibling exception to termination States. Florida Supreme Court found rule. of parental rights. Statute lists strong proper adjudication of dependency re- relationship with sibling as exception to quired court to make individualized factual Maine termination, and mother would have testi- findings and apply law to facts even if In re Ashlyn L., 2017 WL 1739445 fied to strong sibling bond between older minor was seeking dependency ruling for (Maine). TERMINATION OF PAREN- child and younger son. Without testimony, sole purpose of obtaining legal residency. TAL RIGHTS, MENTAL HEALTH mother had no other evidence of siblings’ Minor’s motivation was irrelevant. Mother appealed termination of her pa- relationship. rental rights to 13-month-old child, who Georgia lived in foster care with maternal grand- In re Priscilla A., 217 Cal. Rptr.3d 657 Jones v. State, 2017 WL 1548564 (Ga.). parents and older sister since two days (Ct. App.). DEPENDENCY, ABUSE, NEW TRIAL of age. Evidence was sufficient to show JURISDICTION Georgia Supreme Court held defendant mother was unwilling or unable to protect Appellate court found juvenile court erred convicted of felony murder based on cru- child and circumstances were unlikely to in removing minor from father’s custody elty to children is not entitled to new trial change, could not take responsibility of because evidence did not support finding if sufficient evidence supported conviction child within reasonable time, and failed to that father was unfit or neglectful and child based on at least one of two underlying make good faith effort to rehabilitate and was not in category dependency system 80 CLP Online —www.childlawpractice.org Vol. 36 No. 4 Call 202/662-1724 for a copy of any case reported here. reunify with child. Mother had significant, due to schizoaffective bipolar disorder, scientific community. Trial court ruled untreated mental health issues and refused appealed termination of parental rights on issue whether scientific evidence of SBS/ to get help. She rejected parenting advice, grounds court erred in holding termination AHT was admissible as generally accepted and parental coaching and therapy were hearing before she was ruled competent as reliable was for jury and defendant discontinued due to her failure to cooper- to stand in own defense. State supreme could cross-examine prosecution witness- ate or engage. court found no statutory obligation to wait es and call her own experts. for mother to regain competence before In re Daniel H., 2017 WL 1882608 proceeding, only that guardian ad litem Rhode Island (Maine). TERMINATION OF (GAL) must be appointed for incompetent State v. Thibedau, 157 A.3d 1063 (R.I. PARENTAL RIGHTS, FITNESS parties. GAL was appointed and trial court 2017). ABUSE, WITNESSES Father appealed termination of parental granted number of continuances before Stepfather was convicted of child mo- rights, arguing child welfare agency failed reluctantly proceeding. lestation. Victim’s aunt was not listed as to provide referrals for all services. Evi- witness in prosecution’s response to dis- dence sufficiently showed agency made New York covery and no summary of her testimony numerous mental health and substance In re Naitalya B., 2017 WL 1842428 (N.Y. was provided, but trial court did not err in abuse referrals but father failed to engage. App. Div.). DEPENDENCY, CHILD permitting her to testify. Because nondis- Court also acknowledged compliance was WITNESSES closure was unintentional, defendant had only one factor to consider for termina- In case alleging mother neglected daughter burden to demonstrate procedural preju- tion and other factors (his violent history, and derivatively neglected son, evidence dice, which he failed to meet. Defendant unemployment, pending criminal charges indicated mother inflicted excessive was given “ample information with which limiting contact with child) outweighed corporal punishment on daughter, causing to prepare for cross-examination.” Also, agency’s failure to make all referrals. child to sustain bruises all over her body. victim’s testimony defendant sexually as- Child’s out-of-court statements were suf- saulted her over 100 times was admissible In re Jesse B., 2017 WL 1900339 (Maine). ficiently corroborated by agency case- as other crimes evidence. TERMINATION PARENTAL RIGHTS, worker and hospital staff’s observations of MEDICAL CARE bruises on child, photographs of injuries, South Carolina Supreme court upheld termination of and medical records. Child’s repetition In re Justin B., 2017 WL 1717228 (S.C.). mother and father’s parental rights based of same allegations did not provide cor- DELINQUENCY, SEX OFFENDER on unfitness to address child’s medical roboration for out-of-court statements, but REGISTRATION conditions. Child had chronic, severe consistency of child’s reported statements Juvenile appealed trial court’s mandatory medical conditions including developmen- enhanced her credibility. lifetime sex offender registration require- tal delays, needed unusually high degree ments with lifetime electronic monitoring of care, and parents missed over half of In re Nataylia C.B., 2017 WL 1822484 for committing first-degree criminal sexual child’s medical appointments. Parents (N.Y. App. Div.). TERMINATION OF conduct with minor, challenging its un- used marijuana daily, had no intention PARENTAL RIGHTS, LEGAL constitutionality. Appellate court found no to modify their behavior, and had not REPRESENTATION error because requirement was not puni- completed therapy or substance abuse Incarcerated father who admitted to tive measure, correlated with legislature’s treatment. permanent neglect of child was not denied purpose in Sex Offender Registry Act, and was therefore constitutional. Nevada effective assistance of counsel in termina- tion of parental rights proceeding. Fa- A.J. v. Eighth Jud. Dist. Ct., 2017 WL South Dakota ther’s decision to admit to allegations of 2399370 (Nev.). DELINQUENCY, In re A.O., 2017 WL 2290151 (S.D.). permanent neglect was matter of strategy, SEXUAL ABUSE TERMINATION OF PARENTAL and counsel cannot be deemed ineffective Juvenile was arrested for soliciting prosti- RIGHTS, ICWA merely because attorney counseled parent tution but was adjudicated delinquent for Trial court in dependency proceeding to admit allegations in petition to termi- obstructing officer and violating probation. denied motions to transfer jurisdiction of nate parental rights. State supreme court vacated delinquency case to Indian tribe and mother appealed. order and applied statute placing child State supreme court found trial court was People v. Flores-Estrada, 51 N.Y.S.3d who has engaged in prostitution or its required by the Indian Child Welfare Act 863 (Sup. Ct. 2017). ABUSE, SHAKEN solicitation under supervision of juvenile to conduct evidentiary hearing on Indian BABY SYNDROME court without formal adjudication of de- tribe’s petition to transfer dependency Defendant babysitter was indicted for linquency. Arresting juvenile for prostitu- case to the tribe. Court was also required reckless assault and endangerment of baby tion triggers statute, so prosecutor cannot to consider all circumstances of case whose injuries were consistent with non- avoid its provisions by alleging fictitious before determining whether petition was accidental trauma and rapid acceleration/ conduct. timely, and evidence and argument was deceleration. Defendant sought to preclude necessary before determination could be prosecution’s expert testimony on shaken Matter of M.M.L., JR v. Nev. Dep’t. of made whether transfer was in child’s best baby syndrome/abusive head trauma (SBS/ Fam. Servs., 393 P.3d 1079 (Nev. 2017). interest. TERMINATION OF PARENTAL AHT), or alternatively for Frye hearing to RIGHTS, MENTAL INCAPACITY determine whether such testimony Mother, previously ruled incompetent remained generally accepted within Vol. 36 No. 4 ecuring CLP Online—www.childlawpractice.org 81 (Cont’d from front page) children’s cultural identity and relation- on cases involving kinship issues. from the Evan B. Donaldson Adop- ship to their community. Children in tion Institute report Never Too Old: kinship homes are more likely to stay Heidi Redlich Epstein, JD, MSW, is Achieving Permanency and Sustain- connected to their extended family and director of kinship policy at the ABA ing Connections for Older Youth in maintain their cultures and customs. Center on Children and the Law, Foster Care7 was to increase efforts Overall, research shows that family Washington, DC. to recruit, support and utilize rela- connections are critical to healthy child tives by promoting kinship adoption development and a sense of belonging. Endnotes and subsidized guardianship, and 1. Lofquist, D. et al. Households and Families explore subsidized guardianship and 2010: U.S., 2010 Census Briefs C2010BR-14. adoption. However, the report also Children in kinship homes are Washington, DC: U.S. Census Bureau, 2012. 2. Annie E. Casey Foundation Kids Count Data stressed the need to provide enhanced more likely to stay connected supports for relatives who foster or Center. 2013-2015 Current Population Survey adopt as kin caregivers who typically to their extended family. Annual Social and Economic Supplement (CPS ASEC). Estimates represent a three year have far lower incomes than other average. Accessed May 15, 2017. adoptive or foster parents. One study 3. Annie E. Casey Foundation Kids Count Data showed the value of mentoring rela- Kinship care allows for maintaining Center. Child Trends analysis of data from tionships, a role often fulfilled by a these critical family connections. The the Adoption and Foster Care Analysis and close relative. A successful mentoring foster care system must consider and Reporting System (AFCARS), made available relationship was found to contribute address the needs of kinship caregivers through the National Data Archive on Child to: socio-emotional development, Abuse and Neglect (NDACAN). Accessed May to help children achieve stability and 15, 2017. problem-solving, and identity devel- permanency with families. opment. This was especially valuable 4. Annie E. Casey Foundation Kids Count Data Center. Child Trends analysis of data from to youth during vulnerable periods This CLP issue focuses on the role AFCARS. like transitions into and out of care.8 of kin and relatives as permanency 5. Research citations can be found in the resources for children in the child wel- following document: Generations United. Preserves children’s cultural iden- fare system. The articles share practical Children Thrive in Grandfamilies, 2016. tity and community connections. information and best practices to guide
■■ Resources, publications, and professional kinship network information
■■ Easy-to-use searchable database of kinship laws and legislation
■■ Analysis and comparison of kinship topics with practical implementation, advocacy ideas, and personal stories Grandfamilies.org is a collaboration between the ABA Center on Children and the Law, Generations United, and Casey Family Programs http://grandfamilies.org/
82 CLP Online —www.childlawpractice.org Vol. 36 No. 4 SYSTEM REFORM
Creating a Kin-First Culture in Child Welfare by Jennifer Miller
hen children can’t live safely with their parents and must reflect the underlying values of a kin- enter foster care, child welfare policy prioritizes placement first culture. For judges and attorneys, W this means consistently asking about with relatives or close family friends, also known as kinship foster and reinforcing the importance of fam- care. Research confirms that children do best in kinship foster care ily connections when cases are heard and that family connections are critical to healthy child develop- in court and in representation of chil- dren and parents. At the agency level, 1 ment and a sense of belonging. Kinship care also helps to preserve a kin-first philosophy can be supported children’s cultural identity and relationship to their community. by staffing teams to identify kinship families when children first enter care, Child welfare systems across the striving to create kin-first cultures, assess kin families for their capacity country are redoubling their efforts to and reflecting on ways they can help to provide safe and nurturing care for identify and engage kin as foster par- advance the seven steps. These seven children, and support kinship families ents. These efforts are influenced by steps are adapted from a consensus who step in, often with no preparation several factors: document by the ABA Center on Chil- for their caregiving role. It also means ■■ Research repeatedly shows placing dren and the Law, Generations United, fully advocating for resources to sup- a child within their own family and ChildFocus, drawing on the ex- port kin caregivers through training, reduces the trauma of removal periences of several jurisdictions on tailored and accessible services, case from a child’s home, is less likely the forefront of creating child welfare management, and more. to result in placement disruptions, cultures that truly value kin. Finally, leaders can demand that and enhances prospects for finding everyone is held accountable for liv- a permanent family if the child Step 1: Lead with a kin-first ing out the kin-first philosophy. This cannot return home.2 philosophy. requires judges to hold agencies ac- countable for searching for and engag- ■■ There is growing national con- Leadership is key to creating a kin- ing kin, and for agencies to understand sensus that institutional care does first culture. Child welfare leaders, the roadblocks to kinship placements. not benefit children except in including judges and attorneys, can It also means holding all levels of staff time-limited therapeutic settings to promote the belief that children belong accountable for playing their part in meet specific treatment needs. with family. By using their position the kin-first culture. and authority, leaders can send a mes- ■■ A shortage of foster parents exists in most communities. sage that placement with kin should always be the first priority. Step 2: Develop written policies Despite the strong value of kinship and protocols that reflect equity foster care, many child welfare sys- * In Connecticut, the for children living with kin tems face barriers to finding, approv- Commissioner of the Department and recognize their unique ing and supporting kinship families of Children and Families issued circumstances. and seek strategies to create a culture an all staff memo at the beginning Children in kinship foster care deserve that truly values kin families. This ar- of her tenure laying out her the same attention as children placed ticle summarizes seven steps to create expectations that all children with non-kin. Yet too often, child wel- a kin-first culture—one in which child be placed with kin whenever fare policy and protocol is developed welfare stakeholders consistently pro- possible, and that placement with non-kin foster families in mind mote kinship placement, help children in non-kin care should be the and fails to recognize the unique expe- in foster care maintain connections exception. The Commissioner also riences of kin families. Foster fami- with their families, and tailor services set a target for all regions to aspire lies who are not related to the child and supports to the needs of kinship to: 40% of overall placements make a conscious decision to become foster families. Lawyers and judges with kin. foster parents and prepare for having can play a meaningful role in creating children placed in their homes. Kin a kin-first culture by promoting each To fully live out a kin-first phi- families, on the other hand, often step of the steps in their daily practice, losophy, leaders must align their re- in with little preparation before having supporting agency leaders and staff sources, staffing, tools and training to the child placed in their home and face Vol. 36 No. 4 ecuring CLP Online—www.childlawpractice.org 83 a different emotional connection to the ■■ Full disclosure—ensuring kin finding requirements. situation given their relationship to the families understand the full range child. of legal options available to them. Technology as a tool to help child Child welfare systems must have a ■■ Financial supports—ensuring kin welfare agencies locate kin is promis- unique perspective when working with families have the same financial ing, particularly for older youth who kin families and adopt policies that re- supports as other foster families, have been in foster care for a long flect an understanding of the different including permanency supports. time and may lack strong family con- ways kin and non-kin become involved nections. Yet strategies to locate and in the process. Kin-first systems take *Several states have aligned their policies with their kinship engage family connections should time to review their policies and prac- always begin by engaging parents and tices to ensure they clearly outline how philosophy as part of broader efforts to increase the percentage children to identify their own family relative caregivers will be notified and networks. Parents may hesitate ini- engaged when children first enter care, of children first placed with kin. The District of Columbia, tially to name family members who the issues caseworkers should be at- can step in, but may be more support- tuned to in assessing kin families, and Tennessee, and Westmoreland County, PA all revised policies to ive over time when they understand how all stakeholders, including the the alternative is having the child live reflect a kin-first philosophy. These legal community, can advocate for the with a stranger. efforts ensure staff are clear on the full range of support kin families need Traditionally, child welfare sys- expectations for their contributions to meet the children’s needs. tems have focused on family networks to the kin-first culture and policies While the experiences of kin on the maternal side, but there is guide decisions when working with families may differ from those of non- strong consensus in the field about the kinship families. These policies kin, the supports they need to care for importance of fully engaging fathers also help ensure the philosophy of children who have experienced trauma and paternal relatives so children have kinship care doesn’t compromise are the same. This means kin families every opportunity to connect to both the overall focus on safety for all should receive the same financial sup- sides of their family tree. Some child children and youth in foster care. ports and services to support the chil- welfare agencies find using geno- dren as all other foster families. Kin grams with family members can help families may need extra support since 3. Identify and engage kin for identify maternal and paternal family many step in without warning and may children at every step. connections. have immediate needs, such as filling Kin-first states begin identifying a While placement with kin is a out required paperwork, navigating the child’s extended family network from high priority, not all kin are in a posi- licensing process, obtaining car seats the moment the child comes to the tion to have children placed in their and cribs, etc. attention of the child welfare system. home. They can, however, support Policies that are unique for kin When agencies first begin working children wherever they are placed by first-systems include: with families, kin can help prevent re- providing transportation to visitation, ■■ Diligent search—steps to identify, moving the child from his or her fam- visiting with the children, and helping notify, and engage kin throughout ily by playing a supportive role with parents make progress on their treat- the child welfare continuum. parents in crisis. By identifying and ment plans. Kin can also stay con- ■■ Emergency placement protocols— engaging supportive family networks nected to children while in residential steps to make the first placement a early in a family’s involvement with treatment programs and support fami- kin placement when children face the child welfare system, child welfare lies once children return home. immediate removal from parents. stakeholders can better assess viable placement options if removal becomes *Agencies that routinely hold ■■ Licensing policies—recogniz- family team meetings and ing that some nonsafety licensing necessary later. encourage parents to bring standards for foster parents may *Pennsylvania state law requires family and community supports need to be more flexible for kin- family finding, a strategy to locate create environments that allow ship families. and engage kin for children at risk for stronger engagement of ■■ Training—providing initial and of or already in foster care. Under kin connections. In Hawaii, ongoing education for kin that rec- Pennsylvania law, the county must Epic O’Hana is a nonprofit ognizes their existing connection begin family finding in every case organization that uses O’Hana to the child and family. at the time of referral to the child meetings to help children stay ■■ Permanency options—recognizing welfare agency, and the court must safe and connected to family. that legal options for kin may dif- inquire at each hearing whether the O’Hana meetings are facilitated fer than those for non-kin. agency has complied with family- by agency staff and grounded 84 CLP Online —www.childlawpractice.org Vol. 36 No. 4 in the philosophy about the Building a Kin-First Courtroom importance of family connections for children involved in the child Role of the Court welfare system. Court oversight is critical to achieving best practices and improving perma- nency outcomes. Judges can ask the following questions to create an expecta- Step 4: Create a sense of urgency tion for a kin-first culture: for making the first placement a ■■ What is preventing a kinship placement now? kin placement ■■ What reasonable efforts were made to place siblings together? Research shows kinship foster care is ■■ Ask the agency at each and every hearing: What efforts has the agency more stable than non-kin care and can made to identify and locate kin? What efforts have been made to engage help prevent disruptions that harm a kin beyond a notice letter so that they may be part of a child’s life? child’s well-being.3 Kin-first systems ■■ Ask the parents and child(ren) at first and all subsequent hearings to give invest necessary resources into making the court information about their important family connections. the child’s first placement a kin place- ■■ Has the agency explained all possible placement options to kin (i.e., ment whenever possible. First place- guardianship, adoption, foster care, etc.)? ment with kin is key to reducing the trauma of being placed with someone ■■ Order a visitation plan not only for parents, but for siblings and relatives the child doesn’t know, and it also so children can maintain family connections. helps ensure non-kin foster parents are ■■ Ask whether the Indian Child Welfare Act applies and ensure the agency available for children who don’t have makes efforts to identify appropriate placements. viable extended family options for placement. Judicial Licensing Considerations Unfortunately, child welfare sys- Judges can also ask questions about licensing relative caregivers and associ- tems4 are not always structured in a ated supports and services to care for children in their care. way that makes first placement with kin possible. Strategies that help create ■■ Does your state require relatives to be licensed foster parents to care for this sense of urgency include: children in state custody? ■■ Are licensing waivers used in your jurisdiction? ■■ Kinship firewall—requiring a ■■ If relatives are not licensed, the court should ask why. Is it by the rela- supervisor, program manager, or tive’s choice? director to approve all non-kin placements. Firewalls help en- ■■ Do the relatives fully understand all of their placement options? Is there sure caseworkers do not bypass an environmental barrier that can easily be fixed or waived (i.e., family considering family connections needs a new bed or fire extinguisher, etc.)? and notifying and engaging all ■■ Do kin have the services and supports needed to meet the unique needs of known family members before the children placed in their home?
placing children outside their ■■ Ultimately, it is up to the agency to determine whether or not a relative family network. A firewall makes can be licensed. The court cannot order a home to be licensed, but can it harder, not easier, to place with inquire and provide oversight as needed. non-kin foster parents. Judges and attorneys can also ask whether family connections have been engage and assess prospective kin others in the child welfare agency fully explored when presented foster parents. who can search for family connec- with children and youth in non-kin tions, complete criminal and child placements. ■■ Teamwork across units—in protection background checks, many jurisdictions, child protec- *Tennessee developed a Kinship help child protection workers tive workers, who are responsible Exception Request form that case make quality decisions about for investigating reports of abuse placement, make an initial visit to managers must complete and and neglect and, when necessary, submit for approval before making the family to assess for safety and removing children from their par- suitability, and more. a non-kin placement. Several ents, must also complete all steps regions have kinship coordinators to identify and assess kinship op- ■■ Initial home checks—initial responsible for ensuring all efforts tions. Emergency placement with checks of the kinship home can are made to locate kin and support kin is labor-intensive, and child be conducted by staff who have caseworkers in their efforts to protection staff need support from strong skills engaging and assess- Vol. 36 No. 4 ecuring CLP Online—www.childlawpractice.org 85 ing kinship families for safety, un- in general and challenging for the av- placement wavier request form derstand licensing requirements, erage foster parent to meet. A review for every waiver granted to kin and can inform kinship families of of state licensing standards by Genera- and non-kin foster parents. The their options and the steps moving tions United and the ABA Center on form provides guidance on which forward. Too often, child protec- Children and the Law found many fos- entities must approve the waiver tion staff are overwhelmed with ter parent licensing standards, such as before it can be granted, with the investigation and removal and income requirements, age limitations, criminal and child protection may not have the time or back- and space considerations discriminate background waivers requiring a ground to do the initial engage- against many of the families who are higher level of approval than other ment with kin. most likely to step forward to care for types of waivers. children in custody, including kinship ■■ Family team meetings—fam- ily team meetings held before a caregivers. When licensing kinship caregiv- removal occurs are ideal times to The barriers to licensing kin as ers as foster parents, caseworkers bring in extended family networks foster parents has resulted in prevent- should examine the suitability of each who can help parents develop a ing many kinship families caring for caregiver in relation to the individual plan for safe care for a child at children from becoming licensed. child, not just whether the caregiver imminent risk of removal. Those Families that haven’t been licensed are can be licensed according to state or same family members may be not eligible for foster parent subsidies tribal licensing standards. Ensuring kin viable placement options if a plan and lack some protections that li- caregivers have the capacity to provide for keeping the child at home censed families enjoy. It also presents safe, nurturing care to a specific child can’t be developed. a risk to the state if something happens in custody is not always consistent to the child and the state cannot prove with what is needed to pass the licens- ■■ Removing barriers to timely it has done everything to verify the kin background checks—many ju- ing process, especially when the care- foster parent has the capacity to care risdictions experience serious lag giver already knows the child. for the child. times getting the results of back- States can overcome many li- ground checks to determine suit- 6. Support permanent families censing barriers by establishing clear ability of a kinship placement. Lo- for children. guidelines for requesting and granting cal leaders should work with law The ultimate goal for children in waivers for nonsafety licensing stan- enforcement to remove barriers to foster care is to safely return home dards. Waivers are allowable under timely access to criminal back- to their parents. Kin should receive federal law and can be granted when ground checks and ensure results encouragement to support the goal of waiving the standard does not compro- of child protection background a safe return home, but be prepared to mise safety. Examples include training checks are available to inform consider providing a permanent home requirements, space requirements, and placement decisions. Delays in if reunification isn’t possible. Kin-first requirements for the number of chil- receiving fingerprinting results can child welfare systems take the time to dren sleeping in a room. Caseworkers also hamper placement decisions. understand the unique relationships can also educate kin on the option Several agencies have purchased and dynamics of each family and sup- to become licensed and the benefits Live Scan technology to make port problem solving centered on the to doing so. Judges can also probe fingerprinting easier and faster for best possible decision about the most further when kinship families are not prospective foster parents. appropriate permanent families for licensed and promote flexibility in the children. licensing process when safety is not a Strategies that promote permanen- 5. Make Licensing a Priority factor. cy for children in kinship include: Most state licensing standards for foster parents were developed years *A District of Columbia policy ■■ Ensuring a full range of permanen- ago, before the child welfare field pri- called “Temporary Licensing of cy options, including reunification, oritized kinship care as the best option Foster Home for Kin” includes subsidized adoption, subsidized for children in foster care. As a result, a “List of Potentially Waivable guardianship, and tribal customary they were created to ensure safety for Requirements.” Caseworkers adoption. Guardianship and tribal children living with someone they must complete a Request for customary adoption are options did not know, making many licens- Waiver of Licensing Requirements that are important to kin families ing standards irrelevant for children for Temporary Licensing in DC that do not want to terminate pa- living with a grandparent, aunt, uncle, explaining why the waiver will rental rights, which is required for or close family friend. Most licensing not impact safety for the child. adoption. standards have also become outdated Connecticut also requires a ■■ When children cannot return 86 CLP Online —www.childlawpractice.org Vol. 36 No. 4 home, clearly explaining the op- *A Second Chance, Inc. is a ensure all staff honor and value family tions for legal permanence and licensed foster care agency that connection for children in foster care helping families choose the option exclusively serves kinship foster and live that value in their engagement that works best for them. parents caring for children in with families every day. Kin-first sys- tems must also balance the importance ■■ Providing post-reunification, adop- Allegheny County, PA’s foster tion, and guardianship services care system. A Second Chance of helping children stay connected to to ensure families have help to licenses families within 60 days of kin with the unfortunate reality that prevent disruptions as children and placement, conducts specialized not all kin connections are appropriate youth continue to deal with the kinship training, and provides placements, and that first and fore- trauma associated with the initial permanency services to kinship most, the mission of the child welfare removal from their home and other caregivers, parents, and children. agency is ensuring child safety. The childhood traumas. child welfare field has gradually come Legal systems are also critical, and to understand that even when children can’t live with their extended families, Several states use a chart of per- courts, attorneys, and court-appointed it is critical to their well-being that manency options to help families special advocates (CASAs) can re- they remain connected and receive understand the legal options available inforce the importance of kinship support to navigate and maintain fam- and what each option means from a placement and family connections ily relationships. financial and legal perspective. These for children in foster care. Judges can charts help ensure caseworkers are routinely ask caseworkers what steps Jennifer Miller, MSW is founding providing accurate information about they have taken to identify extended partner of ChildFocus, Inc. a national subsidies, medical assistance, access family networks and ask older youth child welfare consulting firm specializ- to government benefits and community if there are family connections that are ing in policy advocacy, organizational supports, the legal process for estab- important to them. Attorneys and CA- development, strategic planning, and lishing permanency, and the nature of SAs can also advocate for more con- communications. ChildFocus partners the legal relationship between the chil- sistent engagement of kin throughout Jennifer Miller and Mary Bissell have dren and their kin. Permanency charts a child’s involvement with the child a special passion for the issue of kin- also help child welfare systems clearly welfare system. ship care and have provided technical delineate for families the assistance Strong community networks also assistance and consultation to numer- available for relatives with a blood engage other public systems to build ous public agencies, providers, and relationship as compared to those not awareness about the needs of children foundations on ways to strengthen related by blood, marriage or, adop- in kinship care. Schools, early child- their approach to kinship care. Jenni- tion. Judges and attorneys also play a hood, economic security, housing and fer previously worked at Cornerstone central role educating family members aging services are just some public Consulting Group, the Annie E. Casey about the permanency options avail- systems that should be aware of the Foundation, and the American Pub- able and what they mean for the entire role of kinship foster parents and help lic Human Services Association on a kinship triad. them access services and supports for the children. issues impacting vulnerable children and families. 7. Create a Strong Community *Washington State has a strong Network to Support Kin Families infrastructure of support for Endnotes Community-based organizations, other kinship families at the state 1. ChildFocus. Children in Kinship Care public systems, and the legal commu- and local levels. A legislatively Experience Improved Placement Stability, nity are often a child welfare agency’s Higher Levels of Permanency, and mandated kinship care oversight best allies in achieving positive Decreased Behavioral Problems.
■■ What financial and other resources does the relative receive to adequately Engaging Kinship Foster Parents meet the child’s needs? as Full Agency Partners ■■ How does the agency engage relative caregivers as partners and ensure As daily decision makers for the their voices are heard in judicial and policy decisions that affect kin? children in their care, kinship foster parents should be treated as the child welfare agency’s most valued frontline practitioners. Agencies must expand To support kinship foster families, hopes the key ingredients identified their efforts to include relatives in crit- child welfare agencies must follow the by kin families will help agencies and ical decisions by helping ensure their lead of several emerging efforts across communities find the best possible voices are heard in the children’s court the country to engage caregivers as path forward to support children and proceedings, engaging foster families full partners in a child’s well-being their families. in shaping agency policies and mak- and future success. One example is the ing sure kinship foster family needs SOS Project (Securing our Stability) Parts of this article were excerpted from A are reflected in all aspects of agency in Adams County, PA. This initiative Movement to Transform Foster Parenting (The leadership and funding decisions. connects a clinician to every foster Annie E. Casey Foundation, 2016) available at http://www.aecf.org/resources/a-movement-to- family who conducts assessments transform-foster-parenting. Improving the Recruitment and with the child and the foster family to Retention of Kinship Foster identify challenges and stressors, and Mary Bissell, JD, is a lawyer and Families prevent disruptions in the placement partner at ChildFocus, a national child Once relatives become licensed foster by fully engaging the foster parent as and family policy consulting firm. She families, they still need wraparound a partner. Interventions are designed is also an adjunct professor at George- services to support and sustain them specifically around the challenges town University Law Center. over the long-term. Successful ap- identified and are provided in a man- proaches include providing opportu- ner to stabilize foster placements by nities for caregivers to mentor other building adult capacity, thus improving kinship families and acknowledging child well-being. and celebrating foster family roles While there is no universal recipe with appreciation events. for success, the Casey Foundation Vol. 36 No. 4 ecuring CLP Online—www.childlawpractice.org 89 IN LITIGATION Sixth Circuit Case Opens Door to Equal Pay and Support for Relative Caregivers by Heidi Redlich Epstein and Elizabeth Christy roviding relative caregivers the same financial benefits and sup- categorical distinctions based on the Pports as nonrelative foster caregivers is the focus of ongoing relationship to the child were imper- missible under federal law. federal litigation. The litigation addresses the equitable treatment Before placement with their aunt, of relatives who care for children in the child welfare system. Most Kentucky’s Cabinet for Health and children in foster care are placed with nonrelatives under licensing Family Services (the agency) con- standards and policies developed to ensure the safety of nonrelated ducted a standard home evaluation and criminal background check. Plaintiffs caregivers (see sidebar on the Model Foster Family Home Licensing argued that because the agency took Standards). those measures before placing the chil- dren with their aunt, the aunt was con- Relatives often have problems moved for summary judgment, argu- sidered an “approved foster care pro- qualifying for foster home licenses for ing that CWA does not give plaintiffs a vider” under CWA. The court held that reasons such as limited physical space private right of enforcement under “[t]o the extent the Cabinet’s failure within the home or inadequate sleep- § 1983 and that the distinction be- to make maintenance payments turns ing space. Thus, many states will place tween relative and nonrelative caregiv- on the distinction between relative the child in the relative’s home but not ers has a rational basis. The district and nonrelative foster care providers, pay the relative. For the first time, a court granted the motion and the it plainly violates federal law.”2 The federal court is examining whether it is plaintiffs appealed. court reasoned that CWA contemplates legal to distinguish payment of a home payment for two categories of foster based solely on the relationship of the Enforceable Right under CWA families: caregiver to the child. The Sixth Circuit, in D.O. v. Glisson,1 1. Licensed foster families—includes reversed and remanded. The Sixth those (usually nonrelative) care- Kentucky Court Action Circuit held that CWA does give foster givers that satisfy all state licens- In 2013, two children were placed care providers a privately enforceable ing standards, and by a Kentucky family court in the right under § 1983. The court reasoned 2. Approved foster families—in- home of their great aunt. The children that (1) the Act uses mandatory lan- cludes relative caregivers approved were transferred from a nonrelative guage and focuses on individual recip- through a modified process that foster home to the great aunt’s care. ients, thereby evidencing congressio- allows states to waive nonsafety However, the aunt was not given the nal intent to confer a benefit on plain- standards case-by-case for chil- same financial benefits, supports, and tiffs; (2) it contains sufficiently clear dren in relative foster family services to care for the children as the legal standards that courts can apply homes.3 nonrelative caregivers. without making political judgments; The aunt brought an action in state and (3) it unambiguously imposes a The Sixth Circuit concluded the court against the Secretary for Ken- binding obligation on states. The court aunt is entitled to foster payments tucky’s Cabinet for Health and Family further reasoned that Congress neither even though she was not fully licensed Services. She alleged (1) the federal explicitly nor implicitly foreclosed en- because of the safety assessment con- Adoption Assistance and Child Wel- forcement of the right to maintenance ducted before placement.4 The Sixth fare Act of 1980 (CWA) required the payments. Circuit remanded to the district court state to provide maintenance payments to determine whether Kentucky’s Cab- to her on behalf of the two children, Legality of Relative inet for Health and Family Services and (2) failure to do so violated the Caregiver Distinction maintains responsibility for the chil- Fourteenth Amendment Equal Protec- The Sixth Circuit also addressed dren’s placement and care. If so, then tion and Due Process Clauses. whether a relative caregiver is entitled the district court would need to award Federal Court Action to a § 1983 right under the CWA. The foster care maintenance payments to Sixth Circuit held that under the mean- the aunt. The case was removed from state court ing of the CWA the great aunt provid- to the District Court for the Eastern ed the plaintiff children an approved Eighth Circuit Case District of Kentucky. The Secretary foster family home, and that caregiver In contrast to the Sixth Circuit’s 90 CLP Online —www.childlawpractice.org Vol. 36 No. 4 ruling, the Eighth Circuit in Midwest Foster Care and Adoption Ass’n v. Model Foster Family Home Licensing Standards Kincade,5 held the CWA does not give caregivers a private right of enforce- Until recently, the federal requirement under the Social Security Act, 42 ment under 42 U.S.C. § 1983. In U.S.C. § 671(a)(10)(A), that foster home licensing standards be “reason- reaching their holdings, both courts ably in accord with recommended standards of national organizations” was applied the same three-part test created difficult to achieve as no such standards existed. In 2014, the ABA Center by the Supreme Court in Blessing v. on Children and the Law, Generations United, the National Association Freestone,6 however their reasoning for Regulatory Administration (NARA) and the Annie E. Casey Founda- differed in three ways. tion, created the first set of comprehensive Model Foster Family Home Licensing Standards, available for free download at www.grandfamilies. Federalism principles org. The standards help ensure children in foster care are safe and establish First, the Eighth Circuit invoked feder- a reasonable, common-sense path to enable more relatives and nonrelated alism principles. The reliance on fed- caregivers to become licensed foster parents. The partners are working eralism shows the court’s reluctance to to encourage states to assess and possibly align their own family foster find a federal right enforceable against home licensing standards with the Model Standards. a state actor under § 1983, absent a clear congressional articulation of such a possibility. The court felt a less Gonzaga Case Heidi Redlich Epstein, JD, MSW, is stringent application of the Blessing Third, the Sixth and Eighth Circuits the director of kinship policy and as- test would amount to an unconstitu- cite Gonzaga Univ. v. Doe,7 to support sistant director of state projects at the tional infringement on states’ rights by their conclusions. However, the Eighth ABA Center on Children and the Law. federal courts without first providing Circuit relied less on the specific facts Heidi helped develop and currently co- the states sufficient notice of potential of Gonzaga and more on the factors manages the Grandfamilies State Law liability. The Sixth Circuit did not the court applied in its reasoning. and Policy Resource Center at www. mention federalism principles. Whereas the Sixth Circuit relied more grandfamilies.org in partnership with heavily on the facts of Gonzaga and Casey Family Programs and Genera- Purpose of CWA distinguished them from the facts of tions United. Her other kinship efforts D.O. Second, the Eighth Circuit relied ex- include training and technical assis- tensively on the purposes of CWA as tance on kinship issues, and helping a whole to inform its interpretation of Conclusion develop the National Model Family The District Court for the Eastern the specific sections alleged to give Foster Home Licensing Standards. District of Kentucky has not heard this rise to a § 1983 private right of en- case and Kentucky is considering fil- forcement. The Eighth Circuit referred Elizabeth Christy, recently gradu- ing a petition for writ of certiorari to often to the fact that CWA is Spending ated from Arizona State University’s the U.S. Supreme Court. The impact Clause legislation, that it focuses on Sandra Day O’Connor College of Law. of this case may be far-reaching for states as the subject, and that it sets She served as a legal fellow with the thousands of unpaid kinship caregiv- minimum requirements states must ABA Center on Children and the Law ers. To have a U.S. Supreme Court rul- meet to qualify for federal matching in the spring 2017, focusing on im- ing that kinship caregivers are entitled funds. This framing of the analysis migration, kinship, and child welfare to this benefit and that they cannot minimizes any reference to individual issues. She is joining the firm Asbey, be treated differently based on their caregivers within the CWA and makes Watkins & Deisel, Flagstaff, AZ. previous relationship to the child is it easier to dismiss the claim that the significant. Endnotes act grants caregivers a right. About half of the states currently 1. 847 F.3d 374 (6th Cir. 2017). Conversely, the Sixth Circuit do not allow unlicensed caregivers to 2. D.O., 847 F.3d 383. opinion gives more attention to the care for children in their custody, but 3. Ibid., 382-383. language within each provision and states that allow this practice would 4. Ibid., 376. largely rejects the argument that the have to pay these caregivers under the 5. 712 F.3d 1190 (8th Cir. 2013). sections should be interpreted within ruling. There are concerns that states 6. 520 U.S. 329 (1997). the context of the overall Act. By will respond by diverting children to 7. 536 U.S. 273 (2002) (holding the Family adopting a narrower focus, the Sixth the care of kin outside the child wel- Educational Rights and Privacy Act does Circuit gave greater weight to the in- not grant students a privacy right in their fare system or not place children with dividual caregivers and other language educational records). kin at all. We will have to wait and see that favored finding an individual right what the court rules. enforceable under § 1983. Vol. 36 No. 4 ecuring CLP Online—www.childlawpractice.org 91 LAW & POLICY UPDATE
Promising Practices When Working with Immigrant Kinship Caregivers By Elizabeth Christy and Cristina Ritchie Cooper elatives and kin of children often play a critical role when a welfare agencies that receive federal funding must notify all adult relatives Rfamily is involved in a child welfare case, whether as a place- when a child is removed from care ment resource for the child, supervising visitation, or otherwise of the parent within 30 days of the supporting the child and parent. As placement resources, relatives removal,4 exercising due diligence to identify and locate all adult relatives can provide a setting familiar to a child experiencing the trauma or of the child.5 The law does not provide disruption of removal from the home and can preserve existing posi- an exception to this requirement for tive relationships with the child (and, ideally, the parent). relatives who live outside the United States or who are otherwise not U.S. Additionally, relative caregiv- Placing Children with citizens. ers may create stability and comfort Immigrant Families In addition to notification require- ments, the Fostering Connections Act for the child by maintaining shared Both relative and nonrelative foster also prioritizes placing children with cultural practices and speaking the parents seeking to care for children in relative caregivers.6 This priority ad- child’s primary language. Immigrant the custody of child welfare agencies vances multiple important policies, in- relatives, in particular, can support must meet eligibility requirements cluding increasing stability and perma- this cultural continuity for children, in to become licensed providers. While nency for children. Nothing in federal addition to other aspects of a safe and federal law provides some guidance, law precludes placing foster children stable placement. But immigrant care- licensing standards are largely deter- with relatives who are not U.S. citi- givers without legal status in the U.S. mined by state law, and thus, may vary zens, regardless of whether they have —that is, “undocumented” immigrants significantly across jurisdictions. a documented or undocumented im- —face unique challenges to caring for Guided by federal law, most states migration status. And undocumented children who have been removed from prioritize placing foster children with caregivers can receive federally- their parents’ care. relatives or fictive kin over nonrela- reimbursable foster care maintenance These challenges may impact tives. To facilitate these placements, payments if the child is eligible under many families. In 2015, 30% of chil- most of these states offer a modified dren in foster care were placed in Title IV-E of the Social Security Act. 7 1 approval process for kinship caregiv- relative foster homes. That same year, ers, such as unlicensed provider op- almost 18 million children, more than State Foster Care tions, or waivers of nonsafety related Licensing Standards a quarter of the demographic, had at licensing standards.3 2 Although federal law does not pre- least one foreign-born parent. While However, in many cases, failure to clude placing foster children with data on the number of immigrant obtain full licensure may disadvantage noncitizen kinship caregivers, some children in foster care is limited, it is caregivers by, for example, precluding states have implemented standards clear that a substantial portion of the receipt of full foster care maintenance that create direct or indirect barriers to population may be impacted by laws payments. Understanding how federal licensure for immigrant relatives. and policies that directly or indirectly and state laws regulate foster place- affect immigrant caregivers’ ability ments with immigrant caregivers helps Explicit Citizenship or Immigration to participate with the child welfare guide advocacy when working with Foster Licensing Requirements system. immigrant caregivers. Attorneys, caseworkers, and other Twenty states have explicit foster advocates can help overcome these licensing standards that require U.S. Federal Law and Policy Relating obstacles and eliminate barriers. In citizenship or some form of document- addition to discussing the legal im- to Immigrant Caregivers ed immigration status.8 The phrasing, plications of immigration status on Federal law recognizes the critical scope, and context of these require- foster placements, this article provides role relatives and kin can play in child ments varies from state to state. Most promising practices and other tools welfare cases, and encourages them of these states require either U.S. for those who work closely with im- to participate. For example, under citizenship or any form of documented migrant caregivers in the child welfare the Fostering Connections to Success immigration status. Arizona accepts system. and Increasing Adoptions Act of 2008 all applicants who are “lawfully pres- (Fostering Connections Act), child ent,” but it requires that those with 92 CLP Online —www.childlawpractice.org Vol. 36 No. 4 “temporary authorization to be present information-sharing among agencies services for immigrant families. In in the United States . . . provide docu- for purposes of immigration enforce- a 2015 Information Memorandum, mentation indicating that the authori- ment heightens the risk that identify- the U.S. Department of Health and zation is valid for a minimum of one ing information about undocumented Human Services’ (HHS) Children’s year or that the applicant has already kinship caregivers could reach the De- Bureau provides, among other guid- taken steps to obtain authorization to partment of Homeland Security. ance, a list of best practices for child remain for at least one year.”9 Mas- welfare agencies to adopt.15 While the sachusetts narrows its standard to in- Language, residency, home study, and Information Memorandum focuses on clude only U.S. citizens or immigrants education requirements. Other foster working with immigrant parents, many with “legal permanent resident status, licensing standards that may create of the suggestions can also improve asylum, refugee, or other indefinite barriers to or prevent licensing immi- collaboration with relative caregivers. legal status.” Georgia, Maryland, New grant kinship caregivers include: (1) The suggestions include: Mexico, North Carolina, and Tennes- specific language or communication ■■ Use partnerships with immigrant- see require either citizenship or lawful requirements;11 (2) state residency re- serving organizations to recruit permanent resident status (i.e., a quirements;12 (3) requests for immigra- foster and kinship care provid- “green card”), which is a specific form tion-related information on foster care ers, remove systemic barriers that of immigration status. licensing applications or during home prevent immigrant relatives from studies;13 and (4) education-related becoming kinship caregivers, and Other Potential Barriers to standards that may require academic promote foster family resources; Full Foster Licensure credentials obtained in the United ■■ Translate written materials and use 14 In some states, while there are no States. While none of these standards interpreters; explicit citizenship and immigration are specific to immigrant caregivers, ■■ Use culturally competent status licensing standards, there are these regulations and policies may cre- assessments, engagement, and other requirements that may create ate a chilling effect or extra hurdles for intervention; challenges for immigrant kinship care- immigrant caregivers. These standards givers, especially those with undocu- may also indicate that, in practice, the ■■ Engage community/ethnic-based mented status. state does not license undocumented organizations to coordinate ser- caregivers. vices for families and children Background checks. All states require that cannot be met through usual that caregivers, whether licensed Engaging Immigrant Families channels; and or unlicensed, undergo background Aside from specific legal requirements ■■ Train caseworkers on challenges checks. In addition to concerns by when placing foster children with their in immigration and acculturation, undocumented immigrants about immigrant relatives or kin, there are culturally and linguistically appro- interacting with law enforcement and some promising practices that child priate services, how immigration other government entities, background welfare agencies, courts, and others status affects families, children checks typically require providing who work with caregivers may adopt. and youth, access to services and some form of government-issued iden- When implemented, these policies and benefits, and the complexities of tification, such as a state-issued driv- practices may increase immigrant rela- immigration enforcement.16 er’s license or a social security num- tive involvement with the child welfare ber. For undocumented immigrants, agency and the number of kinship Using Foreign Consulates to these accepted forms of identification placements. Stakeholders should be Assist Agencies and Courts are not always available. At least two aware of the following recommended State and local child welfare agen- states have established official meth- practices and opportunities for cies and courts can also improve ods of processing background checks advocacy. engagement with immigrant families that accommodate undocumented by partnering with foreign consul- immigrants.10 However, most states are Making Child Welfare Agencies ates. Generally, a country’s consulate silent on the issue. More Accessible offers help to citizens of that country Another element of background Child welfare agencies and other state who are traveling or living in the U.S. checks that may pose challenges to entities that provide services to im- when those individuals need help with undocumented potential caregivers is migrant caregivers should take steps the U.S. legal system (and in other fingerprinting. Though fingerprinting to ensure accessibility for non-U.S. circumstances). Many states and local for foster care placement purposes citizens. Accessibility in this context jurisdictions have entered into Memo- was rarely an obstacle to otherwise includes both access to the standard randa of Understanding (MOUs) with eligible caregivers in recent years, the information and services available foreign consulates (most commonly Trump Administration’s interest in to all foster families and specific with that of Mexico). The MOUs are Vol. 36 No. 4 ecuring CLP Online—www.childlawpractice.org 93 formal agreements designed to pro- of governments in their native coun- with explicit immigration require- mote cooperation between the child tries. Undocumented immigrants may ments, Massachusetts and Or- welfare agency and consulate on hesitate to interact with government egon explicitly exempt kin from areas including locating and provid- agencies and the courts for fear of the immigration status licensing ing notice to parents, engaging parents detention, deportation, or discrimina- standard, thereby allowing eligible in their dependency case, facilitat- tion. As a result of the federal govern- undocumented relatives to obtain ing service delivery, and more. Many ment’s increased focus on immigration full licensure.21 Other states could MOUs specify the responsibilities enforcement and renewed efforts to include similar kin exemptions in and roles of the consulate and child engage state and local law enforce- their laws or policies. welfare agency (or court, in a handful ment more in those efforts, noncitizens ■■ Waivers and variances. In states of MOUs) in a dependency matter.17 may also be experiencing increased that have immigration-related Such agreements can improve compli- anxiety and uncertainty. Additionally, standards and those with other ance with the 1963 Vienna Convention states and local jurisdictions, includ- requirements that create indirect on Consular Relations, which requires ing social services agencies, may feel barriers to full licensure for im- the United States to notify a consul- pressure either to take a more aggres- migrant caregivers, providers may ate when a citizen of a participating sive approach towards certain immi- take advantage of waiver and vari- nation is in the government’s custody, grants or to share identifying informa- ance provisions, where available. including children in child welfare tion among agencies as a result of the Federal law permits waiver of non- agency custody. Additionally, they can federal government’s push for greater safety related standards for kinship establish cooperation in other aspects collaboration from states on immigra- caregivers,22 and most states have of child welfare cases, such as locating tion enforcement. For these and many adopted procedures for granting potential kinship caregivers in the U.S. reasons, immigrant relatives may hesi- waivers or variances. Therefore, or abroad, bridging language and other tate to come forward to work with any while requirements such as those communication barriers, conducting government agency, including a child for background checks generally home studies for kinship placements welfare agency or court. cannot be waived, there are strong outside the United States, and satisfy- Attorneys, social workers, and arguments that immigration and ing the federal requirement to notify others should seek to understand the related standards are not safety- foster children’s relatives. concerns of immigrant caregivers related and therefore may be set One study by the HHS Office of with whom they work. As a first step, aside case-by-case. the Assistant Secretary for Planning advocates should determine the im- ■■ Alternative sources of information and Evaluation surveyed 11 Memoran- migration status of all kinship care to evaluate caregivers. When stan- da of Understanding (MOUs) between providers. When possible, it is best if dard checks through social secu- child welfare agencies with foreign this inquiry is made by someone who rity numbers or state-issued forms consulates.18 The participating state can maintain confidentiality or assure of identification are not available, agencies reported that cases in which the caregiver that no action will be agencies can explore other sources the consulates are involved from early taken to involve federal immigration of background information. For in the process consistently run more officials. After determining immigra- example, caseworkers can inves- smoothly and result in better repre- tion status, advocates should discuss tigate the caregiver’s employ- sentation and outcomes for families.19 the caregiver’s immigration-related ment history (including checking While negotiating and implementing concerns, then take proactive measures employment and other references), these agreements required additional to address them. At all times, advo- community engagement, and time and resources, the agencies inter- cates should be frank with immigrant length of residence in the local viewed said that once the MOUs were caregivers about possible risks and area and state; assess the safety institutionalized, they required less other challenges they may face when and stability of the home; con- state involvement.20 interacting with the foster care system. sider the relationship between the This conversation should be ongoing caregiver and child and the child’s Understand the Concerns of and revisited regularly. family; and explore any concerns Immigrant Caregivers voiced about the caregiver taking Immigrant families involved in the Find and Use Alternative the child out of the U.S. or about child welfare system may have dis- Paths to Licensure other issues. tinct concerns. Immigrants with legal Despite direct and indirect barriers to ■■ Alternative approval procedures. status in the U.S. may be reluctant to full foster licensure, there are mea- Alternatively, immigrant caregiv- proactively engage with federal, state, sures immigrant kinship caregivers ers and advocates may pursue or local government entities based on may take to become fully licensed: alternative approval procedures, past harmful experiences and mistrust such as those designed specifically ■■ Kin exemptions. Of the 20 states 94 CLP Online —www.childlawpractice.org Vol. 36 No. 4 for kinship providers. relative placements,”26 and provide lawmakers or agencies could establish ■■ Court orders for placement with alternative procedures for run- kinship-specific, immigration-standard specific immigrant caregiver. ning background checks for both waiver provisions, such as those in Attorneys for the child, parent, or licensed27 and unlicensed28 Massachusetts and Oregon. even agency have the option of caregivers. advocating for placement with a ■■ New York City’s Immigration and Conclusion specific kinship caregiver in court Language Guidelines for Child To allow immigrant children and U.S.- and seeking an order to that effect Welfare Staff states, “Pursuant to born children of immigrant parents from the judge presiding over the Executive Order No. 41, signed by to benefit from the advantages of dependency case. The attorney can Mayor Bloomberg on September safe and appropriate placement with provide appropriate evidence of, 17, 2003, [the Administration for relatives, child welfare practitioners for example, the child’s relation- Children’s Services] shall not in- should review foster parent certifica- ship with the caregiver, the care- quire about a person’s immigration tion requirements in their jurisdiction. giver’s length of time and involve- status, among other things, unless Identify any barriers uniquely facing ment in the community, details that inquiry is needed to determine potential immigrant caregivers—espe- about employment and household program, service or benefit eligi- cially those who are undocumented— stability, and more. bility or to provide City servic- by being attuned to how circumstances 29 In states where the foster licensing es.” The city’s guidelines further and policies at the local, state, and standards are silent about the impact provide, “Undocumented relatives national level affect immigrant adults of immigration status, relative care- can be considered as a resource for and children, and by partnering with 30 givers and those who work with them children.” and gaining the perspective of im- should first identify any unofficial, migrant parents, foster parents, and/ Advocate for Legislative and practice-based barriers to full licensure or service providers outside the child for immigrants. These may directly or Administrative Policy Changes welfare system that are trusted by the indirectly relate to immigration status. Advocates should also support chang- local immigrant community. After For example, an indirect impact may es to state law and policy that benefit identifying the challenges to kinship come from background check proce- immigrant caregivers. Action may caregiving by immigrants, practitio- dures that request U.S. government- take place at both the legislative and ners can explore and implement poli- issued IDs or social security numbers. administrative level. Ideally, states cies to overcome those barriers. In such cases, undocumented relatives and agencies should be encouraged to Cristina Ritchie Cooper, JD, is senior and advocates should inquire whether adopt measures such as California’s counsel with the ABA Center on Chil- a foreign passport or other ID may be Reuniting Immigrant Families Act, dren and the Law and director of the substituted or if a name-only back- discussed above, which takes a proac- Center’s Immigration Project. ground check could be run. tive approach to ensuring full foster parent licensure of kinship caregivers At least two states and New York Elizabeth Christy, JD, served as a with an undocumented immigration City have laws and policies that ensure legal fellow with the ABA Center on status.31 immigration status does not prevent Children and the Law in spring 2017. In states where similar legislation kinship foster placements. She is joining the firm Asbey, Watkins is politically infeasible, other measures ■■ The most comprehensive is Cali- & Deisel in Flagstaff, AZ. fornia, which passed The Reunit- may be taken. For example, in states ing Immigrant Families Act in with explicit immigration-related fos- Endnotes 23 ter licensing standards, the provisions 1. U.S. Dep’t of Health and Human Servs., 2012. This statute provides that Child Welfare Information Gateway. children in foster care may be are set forth in either administrative code or the agency’s policy manuals. Foster Care Statistics 2015.
lood is thicker than water—the old adage is threaded through ■■ How are you doing with the child? Bthe career of retired Los Angeles Dependency Court Judge Mi- ■■ Are you getting the appropriate chael Nash. From his early days on the bench 30 years ago, Judge assistance? Nash noticed a theme. In case after case in which parents’ rights ■■ Do you have all the information you need to take appropriate care were terminated, the child welfare agency had not fully searched of the child? for missing parents. He began pressing the agency to perform com- Judge Nash cited the National prehensive searches. This would turn up parents—usually fathers— Council of Juvenile and Family Court who often became positive forces in their children’s lives. Judges’ (NCJFCJ) recent Enhanced Resource Guidelines in Child Abuse The experience began shaping his resources for children early in and Neglect Cases as a tool for judges view of the importance of family for the case, increased relative place- to ensure legal compliance with notice children in the child welfare system. ments, and helped children return requirements and efforts to identify “In my experience, more often than home faster than other children. and engage relatives in all stages of not, children have a better sense of be- These efforts led to an uptick in a child welfare court case. “They are longing, and more stability with rela- children placed with relatives. “Here a great bible for judges who work in tives.” This theme would carry through in Los Angeles, we’ve done a fair job child welfare throughout the country,” during his time on the bench, mirror- bringing relatives into the process,” said Judge Nash. The Enhanced Re- ing a cultural change in child welfare said Judge Nash. “We’ve seen 40-50% source Guidelines build on NCJFCJ’s to prioritize maintaining families by of children in out-of-home care placed original Resource Guidelines devel- engaging and supporting relatives. with relatives, which is better than oped in 1995 and include bench cards average.” for each child welfare court proceed- Engaging Relatives: ing. The bench cards specify when Court Innovations Judge’s Oversight Role relatives and kin should be present and Over the years, Los Angeles County The court’s efforts have reflected shifts involved and strategies for engaging dependency courts have undertaken in law and practice in California and and supporting them. several efforts to engage family as nationally requiring relatives to be California has shown its commit- resources for children in the child notified and engaged in child welfare ment to giving relatives the financial welfare system, including: cases. This heightened focus on assistance and support they need to
■■ Years ago, a relative information relatives has carved out an oversight care for children through a new re- form was created to give parents at role for judges. source family approval process. Judge the initial court hearing the oppor- “Judges are the last line of defense Nash explained that by law the agency tunity to identify relative resources and certainly should be paying atten- has 90 days to approve a relative for children. tion to whether or not those require- placement so the relative can get the ments are being complied with,” said full financial benefits afforded to foster ■■ A project 15 years ago identified Judge Nash. He said that continuously parents. During the approval process, relatives and other resources for asking about the availability of rela- relatives receive an additional stipend youth at risk of aging out of the tives, overseeing the maintenance of of $400 per month for three months child welfare system. The ap- and development of family connec- until the process is completed. proach resulted in half or more of tions (including sibling connections), Judge Nash stressed the unique court-involved youth forming rela- and ensuring relatives are getting the role of judges in offering encourage- tionships with a responsible adult support they need are important roles ment when relative caregivers come to who would be helpful to them for judges. court. “Judges should welcome [rela- whether they aged out or not. Judge Nash offered the following tives] and encourage the receiving of ■■ A pilot project 10 years ago en- questions for judges to ask all caregiv- input from them,” he said. “They are gaged in family-finding efforts at ers—relatives and others—and ensure taking on a big responsibility. They the front-end of cases. These are answered in every case: have the children with them every day efforts located more relative ■■ How is the child doing? and they know more about the child 98 CLP Online —www.childlawpractice.org Vol. 36 No. 4 than anybody else at this point.” He The social workers’ front-end Results and Expansion. Judge Nash re- added that social workers should work work and a cultural change in DCFS ported that in one office the number of with relatives to prepare information are driving forces. “The social workers new children coming into the system for the court and inform them of their are encouraged in their offices by their who have been placed with relatives right to give input to the court, in writ- supervisors and others to pay attention during the nine-month pilot has ex- ing or otherwise. to and prioritize this issue,” said Judge ceeded 80%. In the other office, rela- Nash. “They’ve responded tremen- tive placements were over 70% during Creating a Relative-Friendly dously,” he said. “There’s a cultural the first six months and more recently System change—a change in practice that is have risen to 80%. In fact, the second In his current role as executive director causing this to occur.” office had a 100% relative placement of the Los Angeles County Office of Another aspect of the project is rate for children entering the system in Child Protection, Judge Nash is lead- bringing as many family members its most recent month. “It’s clear from ing a project he calls “a game chang- together to see what they bring to the this project that this can be done,” said er.” Motivated by a shortage of foster table. Often there are roles they can Judge Nash. “They’ve done this now parents in Los Angeles, the project is play outside of being a caregiver (e.g., consistently for over eight months.” looking to raise relative placements transportation, respite care) to support The project is contracting with by 10-20% above the current 40-50% the child and family. Child Trends, a nonprofit research placement rate—a rate that has held organization, to evaluate the pilot proj- steady for the last 20 years. Drawing Court Integration. The pilots do not ects in a more systematic way. Judge on his experiences on the bench, Judge yet engage lawyers or the courts but Nash anticipates the evaluation will af- Nash is bringing several of the court- that will come once the project be- firm the positive results the pilots have room efforts that had promise to the comes universal throughout the sys- demonstrated so far and show that project. Pilot projects in two of Los tem. Now the focus is on spreading children and families are better off by Angeles’ 19 Department of Children the process throughout the agency. using and engaging relatives in a more and Family Services (DCFS) offices Once it is duplicated throughout the significant way. began nine months ago. other DCFS offices and the project With good results in the two pilots, goes countywide, Judge Nash fore- the project is discussing expanding Finding and Prioritizing Family. The sees sitting down with the court and to the other 17 DCFS offices in Los Office of Child Protection and the all players who drive the process to Angeles. They will start slowly, said DCFS are working together to increase discuss roles. The hope is to create an Judge Nash, expanding to a couple relative placements, enhance the role expectation that the process will occur DCFS offices first. If the data shows of relatives in the process, and begin in every court case. “If we can fix this positive results by the end of the year, using family-finding technology in a issue at the agency level, it’s a whole then it will expand to the other DCFS more consistent and comprehensive lot easier for the court,” he said. offices on an expedited schedule. way. Spreading the model statewide and The project places greater em- Changing Child Welfare’s Image. expanding to other states is possible in phasis on social workers locating and Judge Nash believes that doing a bet- the future. “There’s no magic to this,” attempting to place children with rela- ter job of engaging and supporting said Judge Nash. “It’s really a mat- tives at the front end. Social workers relatives will help change the face of ter of truly making this a priority,” he are given tools and resources to foster child welfare. “I think the public per- said. “There’s nothing about this that relative placements. For example, ception of child welfare will change every agency in the country couldn’t DCFS is providing resources to as- because it will begin to be viewed as do.” sist potential relative caregivers with a family-friendly system,” he said. A criminal records who are eligible for spillover effect of this change is that Claire Chiamulera, legal editor at the exemptions so they can be considered more people will be encouraged to be- ABA Center on Children and the Law, as resources for children; with support, come foster parents because they will Washington, DC, is CLP’s editor. many can be good caregivers. Social see the process as friendlier. “The lack of a user-friendly process and a lack of Funding for this article was provided by the workers also have access to family- U.S. Department of Justice Office of Juvenile finding technology to widen their overall support has probably been one of the main factors in the decline in Justice and Delinquency Prevention through search for potential relatives early in Award #2015-CT-BX-K001 to the National the process. When relatives are not people who want to be foster parents,” Council of Juvenile and Family Court Judges. immediately available, family-finding he said. “To the extent that we can in- Points of view or opinions expressed are those crease the number of relative caregiv- of the report contributors and do not necessar- kicks in and helps place about 50% ily represent the official position or policies of of children with relatives, said Judge ers that will go a long way to address- ing this foster care shortage.” the funder or the National Council of Juvenile Nash. and Family Court Judges.
Vol. 36 No. 4 ecuring CLP Online—www.childlawpractice.org 99 TRENDS & TIPS Grandparents Raising the Children of the Opioid Epidemic by Ana Beltran “For my 50th birthday, I got a two year old. My story isn’t unique. of 1985 to 468,000 in 1994. During The [opioid] epidemic has devastated communities all over the this same time, there was a 40 percent increase in the number of children country. It doesn’t discriminate against age, race, or gender. It living with their grandparents or other affects all of us.”—Grandparent Pamela Livengood relatives.4 One of the best ways to ensure Opioid Crisis Impacts Generations United responded by re- large numbers of children are not leasing its 2016 State of Grandfamilies removed from their parents again is Relative Caregivers by providing preventative services. After years of decline, the overall Report focused on this crisis: Raising the Children of the Opioid Epidemic: This includes ensuring parents get the number of children in foster care is on treatment they want, relatives get the the rise. From state to state, experts Solutions and Supports for Grandfami- lies. The report addresses grandfami- support they need, and children are say the current opioid and heroin epi- safe and stable in their own homes. demic is the reason. With this increase, lies both in and outside the foster care system. It provides background on One primary recommendation in the the foster care system is relying more Generations United report is to reform and more on relatives like Ms. Liven- the epidemic, highlights personal stories and programs that help federal child welfare financing to en- good to care for children. Since 2008, courage a continuum of preventative the percentage of children in foster tailored services and supports for chil- care with relatives has gone up from Relatives are coming to the dren, parents, and caregivers in grand- 1 24 to 30 percent. rescue and raising these families—services such as kinship Simultaneous with this increase, children whose parents are navigator programs, substance abuse the number of children placed in group treatment and prevention services, homes and nonrelated foster homes unable to parent due to heroin mental health services and in-home has gone down. Relatives are coming and other opioid use or supports. Well-supported families will to the rescue and raising these children treatment, incarceration or prevent children from entering foster whose parents are unable to parent due care. to heroin and other opioid use or treat- overdose death. ment, incarceration, or overdose death. Ensure Health Care Access In some parts of the country, the grow- Additional key recommendations that grandfamilies, and features concrete ing reliance on relatives is even more will help families both inside and policy and program recommendations dramatic. In Ohio, which is one of the outside the foster care system include that can be implemented to help sup- states hardest hit by this epidemic, protecting the Social Services Block port all grandfamilies. Recommenda- the number of children in foster care Grant (SSBG) and ensuring that tions include: placed with relatives has gone up 62 Medicaid is protected as the essential 2 percent since 2010. Provide Preventative Services health care coverage it is for many Although the child welfare system Children have been unable to be raised grandfamilies. Legislative efforts must relies heavily on relatives, there are by their parents due to other devastat- do no harm to the ability of the chil- many more children outside the foster ing drug epidemics, including crack dren and caregivers in grandfamilies care system in the care of relatives. In cocaine and methamphetamine. We to access quality health care or to the fact, for every one child in foster care must learn from those experiences and ability of parents to obtain substance with a relative, there are 20 children be ready to act to better support the abuse treatment. Other essential safety outside of foster care in the care of impacted children and families. Con- net programs, such as Temporary As- 3 relatives. Compelling data is lacking sider what happened during the crack sistance for Needy Families (TANF), on how the opioid epidemic is also cocaine epidemic. At the beginning of Social Security, and tax credits must causing these numbers of children to that crisis, the number of children in be protected and improved through a increase, but anecdotally we know foster care had increased slightly. By number of concrete policy and pro- they are. the time the epidemic was ending, the gram steps, including preserving the numbers of children in the foster care ability of grandfamilies to qualify for Policy and Practice Tips system had gone up by almost 70 per- the Earned Income Tax Credit. In light of these staggering statistics, cent, from 276,000 children at the end
100 CLP Online —www.childlawpractice.org Vol. 36 No. 4 Ensure Relative Supports by states’ own licensing standards. implement these recommendations to Are in Place Generations United, in partnership the better support the children, parents, The National Family Caregiver ABA Center on Children and the Law and caregivers in grandfamilies. Gen- Support Program is also an essen- and the National Association for Regu- erations United’s report has provided tial resource for many grandparents latory Administration, with support the background and inspiration for a and other relatives age 55 and over. from the Annie E. Casey Foundation, Senate Aging Committee hearing in Although all states and Area Agen- created Model Standards to eliminate March 2017 and motivated members cies on Aging can provide supportive these unnecessary barriers. Genera- of Congress and others to support the services, such as respite, counseling, tions United encourages states to adopt children and caregivers in these fami- and support groups to these caregiv- those standards. lies. Working together, we can ensure ers, many do not. Generations United the opioid epidemic does not devastate recommends that states use the full Coordinate Services at the more families and communities. 10 percent of their funding to serve State and National Levels grandfamilies. All agencies serving gandfamilies— Ana Beltran, JD, is a special advisor at child welfare, aging, and economic Generations United, Washington, DC. Address Foster Care security—must coordinate services Endnotes Licensing Barriers and supports at both the federal and 1. U.S. Dep’t of Health & Human Servs., Admin. For relatives caring for children in state levels so more children and care- givers can be served. For example, in for Children & Families. Preliminary Estimates the foster care system, Generations for Fiscal Year 2008 and Preliminary Estimates for United urges states to address barriers Washington State, key staff from each Fiscal Year 2015. Washiington, DC: Adoption and to licensing grandparents and other of the state child welfare, aging and Foster Care Analysis Reporting System (AFCARS), relatives as foster parents. Although 30 economic security agencies meet regu- no. 16 (October 2009) and no. 23 (October 2016), percent of children in foster care are larly to coordinate efforts on behalf of available at acf.hhs.gov. placed with relatives, many of those grandfamilies. That type of coordina- 2. Public Children Services Associates – Ohio relatives are not licensed and therefore tion helps agency leaders understand (PSCAO). The Opiod Epidemic’s Impact on and address barriers across systems Children’s Services in Ohio, 2017 (PowerPoint are not given the financial and other presentation), available at ipacohio.org. supports that go to licensed foster fam- and improve access to services and supports for grandfamilies. 3. State of Grandfamilies 2016 - Raising the ilies. Generations United recommends Children of the Opioid Epidemic. Washington, D.C.: that states work on addressing this Generations United, 2016, available at www.gu.org inequity in part by addressing licens- Generations United is working to or www.grandfamilies.org. ing barriers, many of which are caused help the field learn from the past and 4. Ibid.
American Bar Association Center on Children and the Law 1050 Connecticut Ave., NW, Suite 400 Washington, DC 20036
Vol. 36 No. 4 ecuring CLP Online—www.childlawpractice.org 101