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The New Permanency ______* JOSH GUPTA-KAGAN

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The New Permanency ______* JOSH GUPTA-KAGAN The New Permanency ____________________________________________________________ * JOSH GUPTA-KAGAN Permanency is a pillar of child welfare law. Historically, when foster children cannot reunify with their parents, states have sought to terminate parental rights and find adoptive families. But recent legal reforms have created a continuum of permanency options, many of which permit ongoing legal relationships with biological parents and do not require termination of biological parents’ rights. Research has demonstrated that such options are as lasting as adoption, and can help more children leave foster care to legally permanent caretakers. This continuum promises to empower families rather than the state to determine the best legal status for their particular situation, and does not rely on terminations of parental rights as the default tool to achieve permanency. This is the new permanency. A milestone in the development of this new permanency was the 2008 Fostering Connections to Success and Increasing Adoptions Act (“Fostering Connections”), which provided federal funds for kinship guardianship subsidies. Yet six years after Fostering Connections, the number of guardianships nationally has not increased, and just as many children grow up in foster care as before. This article is the first to explore Fostering Connections’ failure to spark major change. The fault lies in its failure to challenge guardianship’s cultural and legal subordination to adoption and the state’s power to steer families away from guardianship without significant court oversight. This article also explores a jurisdiction in which the new permanency is close to reality. The District of Columbia has seen the number of guardianships surpass the number of adoptions, with more children reaching permanency, and fewer unnecessary terminations. The District thus represents an extreme version of what the new permanency could do nationally—although it also illustrates the problems with overly wide agency discretion regarding kinship placements. This article proposes a set of reforms that would help fully implement the new permanency nationwide. These reforms would rid the law of a hierarchy among permanency options, establish a stronger and more consistent preference for kinship placements, and empower families, not the state, to select the permanency option that best fits their situation, through more rigorous procedures and better provision of quality counsel than current law provides. *Assistant Professor of Law, University of South Carolina School of Law. I would like to thank Avni Gupta-Kagan, Sarah Katz, Colin Miller, and Claire Raj for their thoughtful comments on earlier drafts, and David Kershaw for excellent research assistance. 1 CONTENTS I. The New Permanency: A Continuum of Permanency Options, with an Emphasis on Kinship Care, and with a Relatively Limited Need for Terminations of Parental Rights . 7 A. The Permanency Continuum ................................... 8 1. Permanency Without Termination: Expansion of Kinship and Non-kinship Guardianship........... 10 a. Kinship and Non-kinship Guardianship .... 16 2. A Permanency Continuum Even Within Adoption 19 B. Expansion and Establishment of Kinship Care ..... 22 II. Guardianship’s Continued Subordination to Adoption25 A. Legal Structure Creates a Hierarchy .................... 27 B. A “Binding” Ideology ........................................... 31 C. Adoption’s Ideological and Cultural Primacy ...... 33 D. Procedural Differences Reinforce the Hierarchy . 35 E. Child Welfare Agencies Maintain (Retain?) Tremendous Authority at Key Junctures, with Only Weak Court Oversight ............................................................... 37 1. Child Welfare Agency Power over Whether to Make a Kinship Foster Home Placement ..................... 37 2. Child Welfare Agency Discretion over Whether to Offer Guardianship .......................................... 41 3. Children and Families Should Have a Greater Say 43 III. District of Columbia: A Case Study Illustrating the New Permanency ................................................................ 44 A. District of Columbia Permanency Options and Outcomes 46 B. The District’s Agency-focused Kinship Placement Procedures ............................................................ 52 C. The Inability to Resolve Kinship Placement Issues Early Leads to Difficult Permanency Litigation ............. 55 IV. Implications of the New Permanency and Areas for Legislative and Practice Reform .............................. 59 A. The Permanency Hierarchy Is Obsolete, and All Families Should Have Equal Access to the Full Continuum of Permanency Options ............................................. 60 B. Procedural Protections Before Establishing Guardianships Should Be on Par with Their Permanency ............ 62 C. Establish Stronger and More Enforceable Kinship 2 Placement Preferences .......................................... 64 D. Record Data to Study New Permanency Options.. 66 E. More Rigorous Permanency Hearing Procedures to Better Choose Between Permanency Options .................. 68 F. Legal Services for Parents, Children and, When Reunification Is Ruled Out, Caregivers ................ 70 V. Conclusion ........................................................................ 74 Permanency is a pillar of child welfare law. It has long been agreed that children generally do better with legally permanent caretakers, rather than in foster care, which is by definition a temporary legal status. For the past several decades, permanency options have mostly been assumed to be limited to reunification with biological parents or adoption by new parents. Adoption has been understood to require termination of biological parental rights and of all legal relationships between biological parent and child. That binary—reunify or terminate and adopt—has faced significant criticism for overly relying on terminations, creating legal orphans,1 and unnecessarily excluding permanency options which maintain a legal relationship between parent and child or seek to place children permanently with caretakers who did not want to adopt. Assuming permanency required terminating parental rights, many states terminated many thousands of parents’ rights, but failed to find adoptive families for all children whose legal relations with their parents were severed. This created legal orphans, and critics complained that states served these children poorly – states raise these children in foster care, then “emancipate” them when they reach majority, and these children fare poorly on important life outcomes.2 Critics explained how child welfare law subordinated permanency options such as guardianship to adoption and demonstrated empirically that guardianships are just as stable and lasting as adoptions. Simultaneously, child welfare agencies began placing increasing numbers of children with extended family members, 1 A legal orphan is a child whose biological parents remain alive, but who has no legal parents because state action has terminated their biological parents’ rights and the state has not formed a new parent-child relationship via adoption. Martin Guggenheim coined the term. Martin Guggenheim, The Effects of Recent Trends to Accelerate the Termination of Parental Rights of Children in Foster Care—An Empirical Analysis in Two States, 29 FAM. L.Q. 121, 122 (1995). 2 See, e.g., MARK E. COURTNEY, ET AL., MIDWEST EVALUATION OF THE ADULT FUNCTIONING OF FORMER FOSTER YOUTH: OUTCOMES AT AGE 26, 6 (2011) (summarizing the “disquieting” conclusion that youth who emancipate from foster care are “faring poorly . [a]cross a wide range of outcome measures, including postsecondary educational attainment, employment, housing stability, public assistance receipt, and criminal justice system involvement . .”), available at http://www.chapinhall.org/sites/default/files/Midwest%20Evaluation_Report_4_10_12.p df. 3 many of whom did not want to terminate their relative’s parental rights, even if the kinship caregivers would raise them to adulthood. And research demonstrated that kinship care provided foster children with more stable placements and facilitated better permanency outcomes. The result has been significant changes in permanency policies and, less significantly, in practice. Today, when foster children cannot reunify with parents, their permanency choices fall along a continuum: children can be adopted and have their legal relationships with birth parents terminated; children can be adopted and have court-enforceable rights to visit with birth parents; children in one state can be adopted without terminating birth parents’ rights (non-exclusive adoption); children can live with a permanent guardian—either a family member or close family friend (“kinship guardianship” in child welfare jargon) or with others (non-kinship guardianship). This continuum represents a dramatic shift in permanency law and should lead to dramatic shifts in practice. Many options along this continuum do not require terminations of parental rights and so this continuum challenges reliance on terminations. Choosing among those options requires delicate decision- making, and should empower families—especially children and their new permanent caregivers—to determine the best legal status for their particular situation. This is the new permanency. A milestone in the development of this new permanency was the 2008 Fostering Connections to Success and Increasing Adoptions Act (“Fostering Connections”). Through Fostering
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