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FEDERAL JUDICIAL ACCOUNTABILITY INTEGRITY LEGISLATION
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Kinship Care
The American Bar Association
Approved, February 1999
RESOLVED, That the American Bar Association encourages states and territories to
establish guidelines for courts, child welfare service agencies, and
participating attorneys to follow when abused, neglected, and abandoned children
are placed in kinship care, and for use in the provision of services to kinship
providers for such children, based upon the following:
1. Conducting an aggressive search for maternal and paternal kin and consider
kinship placements as early as possible after the child becomes known to the
child welfare agency and/or the court;
2. Carefully screening potential kinship providers before any kinship placement,
just as agencies do with potential foster parents;
3. Thoroughly educating kinship providers regarding current and future social
and custodial expectations, and the legal permanency possibilities of the
placement which include subsidized adoption and subsidized legal guardianship;
4. Providing notice to and the opportunity for kinship providers to participate
in the legal/judicial process, and help them to obtain legal representation;
5. Providing financial support, child health and mental health care coverage,
other government assistance, and other resources to kinship providers throughout
the term of the placement, including aid and services after a permanent
placement is legally finalized; and
6. Encouraging state, local, and territorial governments to enact medical
consent, standby guardianship, subsidized permanent guardianship, and open
(cooperative) adoption laws.
FURTHER RESOLVED, That the American Bar Association encourages state, local and
territorial bar associations to develop and support pro bono and low-cost legal
services projects for kinship care providers, whether the providers have been
involved with a child welfare agency or have otherwise assumed care of the
child.
REPORT
1. KINSHIP CARE - A DEFINITION AND DESCRIPTION OF THE NEED FOR GUIDELINES
As used in this report, the terms "Kinship Care" or "Kinship Placement" refer to
an abused, neglected or abandoned child's placement with relatives or, when
appropriate, with close family friends or household members. In child protection
cases, kinship placements are made directly by court order and/or through a
child welfare or social service agency. The number of children in kinship care
is consistently increasing.
A 1990 report determined that up to 50% of all children in out-of-home
family-based care in some regions of the country are living in kinship care, and
that approximately 878,000 children were living with their grandparents. A 1992
report indicated the number of foster children living with kin in California,
Illinois, Maryland and New York had risen from 18% to more than 31% during the
preceding five years.
Removing children from their parent's home and custody, even in the face of
abuse and neglect, is often traumatic for children. Appropriate placements that
reduce the trauma of separation from parents, siblings and extended family
members should be explored first.
Placements with kinship caretakers with whom children have an established
supportive, caring relationship and with whom they will be protected and
provided for are beneficial in many ways. Kinship placements have the potential
to provide neglected, abused and abandoned children much needed continuity and
familiarity during a period of extreme loss and instability.
Other benefits also exist:
Kinship caretakers are more likely to be familiar with the child, parents or
family, as well as the issues and needs of the children and parents; . Children
and parents are more likely to be familiar and comfortable with kinship
caretakers; . It is more likely that there already exists a bonded relationship
and sense of commitment to the health and well being of the child by the kinship
caretakers;
There is less stigma in living with kin than with foster parents and less stigma
attached to both caretaker and child in a kinship care situation; and . With
appropriate and safe kinship placements, courts and agencies often can continue
to have children's care provided by adults who have the same cultural and ethnic
heritage as the children themselves.
Although kinship placements appear preferable on their face, there can be risks
or drawbacks for children if the placements are not made carefully. When kinship
care providers are not carefully screened, educated about their
responsibilities, or properly supported, there exists the potential to compound
the abuse, neglect or other trauma the children have already faced. Some of the
risks and drawbacks exist because of incomplete background review, incomplete
information sharing or caretaker education, and sparse provision of legal,
financial and social support resources.
When courts or social services agencies do not receive or share all the
necessary information about the child, or when the kinship provider does not
have necessary resources, the child can be further traumatized in their kinship
placement because they lack any real sense of permanency.
For example, children can be harmed in poorly screened or supervised kinship
placements when:
Kin allow parents to have unauthorized and inappropriate access to the child;
Kin themselves are abusive to or neglectful of the child;
Kin and parents are hostile towards each other, the social services agency, and
the court;
Kin accept care of a child as a result of pressure or guilt -- when they don't
really want such a placement; . Kin are not provided sufficient economic and/or
social resources or assistance to allow them to provide for the child properly;
and . Kin are not provided specialized training and ongoing support services
that
would enable them to care for the child properly.
II. PROPOSED GUIDELINES FOR JUVENILE OR FAMILY COURT PERSONNEL AND CHILD WELFARE
AGENCY STAFF TO FOLLOW IN MAKING KINSHIP PLACEMENTS
A PRIORITY AND TO ENSURE PROPER, SAFE, SECURE AND ADEQUATELY SUPPORTED KINSHIP
PLACEMENTS
1. Conduct an aggressive search for relatives or kin and consider possible
kinship placements as early as possible after the child becomes known to the
child welfare agency and/or the court.
Children placed in kinship care have similar physical, mental health, behavioral
and education problems as children placed with unrelated foster parents. Recent
studies have found that kinship caregivers have more positive perceptions about
the children placed in their homes than do non-related family foster care
providers.
In addition, studies show that kinship providers are more likely to recognize
the importance of dealing with children's physical, mental health, behavioral
and educational problems than unrelated foster care providers.
Furthermore, abused and neglected children placed with kin may be less likely to
experience multiple placements than children placed with unrelated foster
parents. Notably, children in kinship homes were more likely to be placed with
siblings than those in non-kinship foster care. Thus, aggressively searching for
possible kinship care providers should be a priority for child welfare agencies
and juvenile or family court personnel.
2. Carefully screen potential kinship providers before placement.
Many questions can and should be asked before a kinship placement is made.
Experts suggest several preconditions for placing children with kin:
The kinship caretaker has no history of abusive or neglectful behavior towards
other children, or behavior that would present a danger to this child;
The child is comfortable with the kinship caretaker;
The kinship caretaker recognizes the parent's history of abuse or neglect and
is committed to protecting the child's health and safety interests first and
foremost;
The kinship caretaker is capable of denying unauthorized requests by the parent
for access to the child; . The kinship caretaker is able to get along with the
child's parent (regardless of whether the goal is reunification of the child and
parent); . The kinship caretaker is committed to caring for the child as long as
needed;
Ideally, the kinship caretaker knows the child well;
Ideally, the kinship caretaker lives in the child's neighborhood and community;
and . The kinship caretaker is willing to make sacrifices for the child and does
not demand compensation that is not needed.
Some additional questions that are helpful in considering kinship placement and
analyzing the home's suitability include:
Did the proposed caregiver volunteer to provide care, rather than having to be
asked? Why or why not?;
Do the parent, the child, and other family members favor choosing this person?
Why or why not?; . How strong is the relationship between the relative and the
parents?; . Are the parent and relative in agreement with the conditions,
duration and responsibilities of the planned arrangement?; . Is the proposed
caregiver healthy enough to care for the child?; . If there is a sibling group,
will siblings be able to remain together, in close proximity to each other, or
in regular contact?; . Does the planned arrangement permit the child to stay in
a familiar neighborhood, school or family community?; . Does the proposed
kinship home meet basic safety and privacy standards?; . Is the relative aware
of, and interested in, the needs and best interests of the child?;
Can the relative, with or without assistance, provide a healthy, safe and
wholesome living environment for the child?; . What is the proposed caregiver's
attitude toward the child and his or her needs?;
Will this kinship placement ease the child's trauma of being separated from the
parents?;
Will the relative provide needed emotional, physical, social and other support
to the child?; . Can and will the relative protect the child from: a) further
abuse or neglect by the original perpetrator or another; b) retaliation for
disclosing the maltreatment; and c) pressure to recant?;
Does the relative recognize the need for the child not to be placed with the
parent at this time?;
Will the relative follow any prescribed rules for visitation or care?; and .
Will the relationship between the parent and the relative reduce or contribute
to the child's distress?
Asking all of the right questions is the first step towards successful kinship
placements.
3. Thoroughly educate kinship providers regarding the current and future social
and custodial expectations, and the legal permanency possibilities of the
placement.
There is often a wealth of information about the child and the situation that
the kinship provider should have access to at the outset of placement. A kinship
provider must first be educated on what the child's special emotional, mental
and physical needs are and, where necessary, trained in handling any special
needs of the child. The kinship provider must understand the need not to second
guess or overrule the agency's and court's decision by allowing unauthorized
contact between the child and the parent and must be able to understand why it
would be detrimental to allow the parent unsafe access to the child.
The kinship provider must be told about specific requirements of the child
welfare agency and court, including but not limited to financial requirements
and obligations. The kinship provider must first be fully informed about the
requirements of the initial placement and informed that options after initial
placement may include guardianship, adoption, full legal custody or another
permanency plan. Before the placement, the kinship provider must understand the
importance of pursuing such options.
It is particularly important to educate kinship caregivers about the option to
adopt, as it is the most permanent placement for a child who is unable to live
with his or her birth parents. All too often, adoption is not explored because
of a desire to preserve pre-existing family relationships. These relationships
may become strained if a caregiver attempts to terminate a birth parents'
parental rights, a necessary precursor to adoption. Those who support and
counsel kinship caregivers should present adoption as an available option, since
it may be appropriate in many permanent kinship care situations.
Child welfare agencies also should be encouraged to explore subsidized legal
guardianship as a permanency planning option for children in kinship foster
care. Generally, subsidized legal guardianship involves transferring legal
custody of a child to his or her current kinship caregiver, continuing to
provide a subsidy to the legal custodian, and closing the child welfare case.
The amount of the subsidy, the age of eligible children, and the length of time
children must be in state custody vary from state to state.
Before considering the option, efforts at reunification and adoption should
generally have been attempted.
States presently utilizing subsidized legal guardianship have noted that
children in guardianships experience more stability than those in foster care,
that caregivers' financial needs are met without unnecessary social service
intervention, and that millions of dollars in administrative costs are saved
each year. Where reunification or adoption is not feasible, this is a permanency
option that should be explored. For states that do not currently offer this
option, administrative and legislative action should be taken to remedy this.
4. Provide notice to and the opportunity for kinship providers to participate in
the legal/judicial process, and help them to obtain legal representation.
Kinship providers must deal with a variety of law-related problems. This is
especially true for the overwhelming number of kinship caregivers who are not
involved in the child welfare system. Kinship caregivers outside of the system
face a myriad of legal issues including issues of custody, adoption, financial
entitlements, estate planning, wills, special education, and landlord-tenant
law.
When child welfare-related court proceedings are required, sometimes those
hearings can result in drastic changes in the child's legal relationship with
his or her parents and substitute care providers. Kinship caregivers, therefore,
need access to quality legal representation so they can meaningfully participate
in these proceedings.
Unfortunately, legal services are not easily accessible for many low and
moderate-income kinship caregivers.
Many cannot afford private legal assistance or are unaware of existing legal
resources available to them.
Also, legal services through publicly funded or pro bono programs are scarce and
often under-funded.
Exacerbating this is the lack of legal service providers with expertise in these
areas.
Generations United's 1988 Report, Grandparents and Other Relatives Raising
Children:
An Intergenerational Action Agenda, suggests five ways courts and bar
associations can enhance kinship care provider access to legal services:
Improve and increase grandparents' and other relative caregivers' access to
legal services through community agencies;
. Educate legal service providers about the legal interests of families in which
grandparents and relatives are raising children and the related custodial
issues; . Develop creative pro bono partnerships to increase the number of
attorneys with special expertise in issues facing grandparents and other
relative caregivers; Encourage private law firms to take an active role in
expanding representation to children and kinship caregivers; and . Train
students in law school clinics to handle grandparent and other kinship
caretaker cases.
5. Provide financial support, child health and mental health care coverage,
other government assistance, and other resources to kinship providers throughout
the term of the placement, including aid and services after a permanent
placement is legally finalized.
Studies show that kinship providers of abused, neglected, and abandoned children
tend to be of middle age or older (the majority being grandmothers and aunts
with an average age of about fifty). Only about half are employed outside the
home and many are single and poor. Studies also show that kinship providers
receive fewer services and less monitoring than unrelated foster care homes.
The reduced level of services is often attributed to the fact that caseworkers
believe the families do not require or are not entitled to as much supervision
and assistance as unrelated foster care providers.
In an overburdened child welfare system, children placed with kin are often
thought to be more "settled," thereby needing fewer services. One study found
that 86% of grandparents who had parental responsibilities towards their
grandchildren reported feeling "depressed or anxious most of the time" and also
reported increased economic or financial struggles. Many younger kinship
caregivers are forced to quit their jobs, cut back on work hours, or make other
job-related sacrifices which can negatively affect their future economic
well-being as well as their physical and emotional stability.
Kinship providers who are either retired or non-working frequently end-up
depleting life savings, selling belongings, and spending their retirement income
to care for the child. Because of their increased age or poor financial
situation, kinship providers often experience serious physical health problems
themselves.
The stress of caring for young children, accompanied by their own health
difficulties, can be overwhelming for many older grandparents and relatives,
often resulting in a variety of stress-related illnesses.
Social isolation is also a problem. Many grandparent and relative caregivers are
raising children alone, without the support of extended family and community
networks. They sometimes minimize the severity of their needs or leave problems
untreated because of their care-giving responsibilities or because there is
nowhere to turn.
Although there are a number of federal and state programs designed to help
children living in poverty, few of these programs specifically accommodate the
unique needs of kinship care providers.
The current government programs that fail to adequately assist many kinship
providers are:
Temporary Assistance to Needy Families (TANF); Medicaid; food stamp programs;
state child support enforcement programs; the Earned Income Tax Credit; and
public housing and rent subsidies. Many caregivers could utilize legal
assistance to aid them in obtaining such public benefits, if such representation
were available.
Other resources that can help address the physical, emotional and social support
needs of kinship providers include, support groups, resource and information
centers, informational lunches and fairs, employee assistance programs, on-site
child care, child care subsidies, medical leave, flex-time, and dependent care
accounts.
6. Encourage state legislatures to enact medical consent, standby guardianship,
subsidized permanent guardianship, and open (cooperative) adoption laws.
Since most kinship caregivers are providing care to children informally, with no
child welfare agency involvement or a lack of a legal guardianship or custody
order, they often face obstacles accessing medical and mental health treatment
for their relative children. If the parents have abandoned the children, have an
unknown address, or only visit sporadically, getting consents for such care may
be a serious problem. State medical consent legislation can provide for birth
parents to execute a simple form providing medical decision authority for the
kinship caregiver, similar to a power of attorney.
Another important legal issue in kinship caregiving situations involves birth
parents who are terminally or chronically ill. Many dying parents, and parents
with severe recurring mental health or medical problems that interfere with
parenting abilities, leave children in the care of kinship caregivers. Parents
can be aided in making legal decisions, prior to death or hospitalization, by
state laws that provide authority for choosing an individual to become the
child's guardian immediately upon incapacity or death.
Such laws are able to help prevent orphaned children and children with
hospitalized parents from unnecessarily entering the public child welfare
system. These laws can create legally-recognized standby guardianships or
standby adoptions under which a court can approve a permanent kinship caretaker
prior to the parent's death or incapacity.
Financial constraints commonly inhibit many potential kinship caregivers from
providing permanent homes to children of their relatives. The U.S. Department of
Health and Human Services has been given congressional approval to authorize,
and many states have developed special programs for, subsidized permanent
guardianship. Government-subsidized guardianship is similar to adoption
subsidies often provided to those adopting children with special needs who were
in the foster care system.
Federal law now provides waivers for states that, among other reforms, use
permanent guardianships as an option for securing permanent care for abused,
neglected, or abandoned children, and Congress has provided authority for state
experimentation in using federal funding for subsidized legal guardianship as an
alternative to subsidized adoption. Most states, however, lack laws specifying
guardianships as permanent and legally secure living arrangements for children
in foster care.
Finally, as an aid to securing the adoption of children in the foster care
system, including adoption by kin, there should be legal authority for courts to
approve -- in appropriate cases -- specified post-adoption contact between
birth parent(s) and the child.
This is often referred to as "open"or "cooperative" adoption. State laws should
authorize courts terminating parental rights or granting adoption of foster
children to approve agreements made by the adopting parent(s) that would allow a
birth parent, biological family members, or other significant persons in the
child's life to maintain some degree of contact with the child after the
adoption is granted. State law should also provide for the legal enforcement of
such post-adoption contact agreements when in the best interests of the child.
CONCLUSION
As the number of children living with kin continues to rise, states must assure
that kinship placements for abused, neglected, and abandoned children are a
positive response to a child's maltreatment. Kinship placements can be
beneficial in many ways and, when in the best interests of the child, should be
preferred over placements with those who are essentially "strangers" to the
child.
However, all the implications of kinship placements must be understood and
guidelines should be followed to assist social workers, children's attorneys,
judges and others with properly assessing kinship care placement on a
case-by-case basis.
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