Current law encourages permanency, usually defined in statute as reunification with a parent, permanent guardianship, or adoption. However, studies have also found that tight permanency timelines and a too-narrow view of family were inflexible and culturally inconsistent, particularly for families of color, who are disproportionately represented within the child protection system. Child welfare advocates define permanency more broadly as “safe and nurturing relationships that can be expected to last a lifetime.”
There is also the question of whether permanency for a child can be achieved with a long-term guardianship or if a parent’s rights should be terminated and the child adopted. In either case, many children who cannot live with their parents still ask to have continued, if limited, contact. Kinship placement holds out hope for parents and children to maintain a connection to a greater degree than would placement with strangers. It maintains ethnic and cultural connections and has a lower risk of placement breakdowns.
Modern law is reasonably consistent in form, if not always in application. Federal law generally prioritizes kinship placements over third-party foster care. State child protection agencies are heavily dependent on federal funding, and thus state laws generally follow federal guidelines, though the strength of the statutory preference for relative or kinship placement and its practical use in the field vary widely. Disputes arising over placement between different relatives, third-party foster families and kinship placements are mostly addressed in case law, which is both state specific and fact specific.
On the other hand, as preferences for kinship placements have increased, so have concerns that kinship placements are cost-driven, though this may be alleviated by new federal regulations on licensure payments. Another argument against kinship placement suggests that social justice concerns and an overemphasis on rehabilitating parents is overriding the need for child protection and permanency.
Definitions
In general, state laws use the term “relative” to define a child’s extended family and describe what relationships qualify. Some states include fictive kin within the definition of a “relative,” while other states limit relatives by blood, marriage, or adoption, even the degree of consanguinity to be considered.
“Kin” is a broader concept than “relative.” Advocacy organizations suggest kin be defined as “individuals related to a child by blood, marriage, tribal custom and/or adoption and other individuals who have an emotionally significant relationship with the child or the child’s parents or other family members.” Grandfamilies & Kinship Support Network, Kin-Finding Toolkit (2023).
Defining ethnic communities and fictive kin as family is a relatively new phenomenon in the law, though new federal regulations promulgated in 2023 by the U.S. Administration for Children and Families (ACF) “encourage agencies to define relative and kin in a way that is inclusive of tribal custom and adopt a broad definition of relative and kin for purposes of licensing and approval standards.”
Legal Process
Children removed from their homes by child protective services not only face time in foster care but also are subject to a lengthy and complicated court process. Initially, the focus is on parental reunification, but even early on, the decision of where children are placed is crucial to their well-being. In some cases, a temporary placement becomes permanent.
While emergency situations may require quick placement in an already-licensed foster home, a search for kinship placements should begin as soon as possible. Federal guidelines urge doing so within the first 30 days following removal. Where no suitable kin are identified nearby, CPS is obligated to engage in family-finding efforts.
Placement and parental visitation are guided by the court or by CPS. Details vary by both state statute and practice within a given jurisdiction, but placement hearings can be requested when working with the agency becomes untenable or when different placements disagree with one another. Courts make the final call.
Later, if the children cannot be safely reunified with the parent and are still in out of home care after 15 of the preceding 22 months, then permanent placement elsewhere becomes the priority. Parental rights may be terminated, and this is a requirement for adoption. A permanent guardianship may be established with or without termination.
Sometimes a parent may be estranged from family and state a preference for an outside placement over sending the child to relatives and kin they reject, especially if the parent’s situation is complicated by conflicts with family over issues such as religion, LGBTQ+ status, children with biracial identity, and so on. Other kinship versus non-kin placement challenges may occur because of the need to prioritize parental reunification but extended family lives in another state. Fictive kin can be a helpful option for parents and children, but may also have conflicts with family members, particularly if state statutes give them no standing.
History and Law
Traditionally, children whose parents were unable to care for them were taken in by extended family or ethnic kin. But as urbanization increased, especially in the 19th century, such ties were disrupted. Children without parents were left to beg on the streets or sent to orphanages. Reformers tried to address these problems, and in the United States, the first White House Conference on Children in 1909 supported foster care programs, expanded adoption agencies, and public assistance to poor families. The Children’s Bureau was formed 1913 to investigate and report “upon all matters pertaining to the welfare of children and child life among all classes” and help state and local agencies protect children from abuse and neglect.
During the New Deal era, Title IV of the Social Security Act was enacted to assist needy families and children. Various programs under Title IV and V were expanded throughout the postwar period and under the Great Society reforms of the 1960s, culminating in the Child Abuse Prevention and Treatment Act of 1974 (CAPTA) and the Indian Child Welfare Act of 1978 (ICWA).
In the 1990s a push for change arose from concerns about children languishing in foster care and aging out of the system at age 18 with a high risk of homelessness and other negative outcomes. The Adoption and Safe Families Act of 1997 (ASFA) came into law. Under ASFA, permanency became a priority, favoring termination of parental rights when children were in out of home care for 15 of the preceding 22 months.
Beginning in 2000, regulatory updates to the Social Security Act required that each state establish and apply its licensing or approval standards to both relative and non-relative foster family homes. Since then, there have been multiple amendments to existing statute and rules, reflecting both new data on child welfare and ever-shifting political winds.
Kinship Preferences
The so-called “15 of 22” rule allows an exception to termination of parental rights if children are cared for by a “fit and willing relative.” This also opens the door to long term or permanent guardianship that can negate the need for parents to lose their rights.
Section 105 of CAPTA puts relatives as preferred placement “where such relatives are determined to be capable of providing a safe nurturing environment for the child.” It encourages “developing and using procedures to notify family and relatives when a child enters the child welfare system.” Similarly, section 471 of ASFA declares, “the State shall consider giving preference to an adult relative over a non-related caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards.”
The strongest protections for families in federal law are in the Indian Child Welfare Act, most recently upheld in Haaland v. Brackeen, 599 U.S. 255. ICWA prioritizes placement with extended family and then with Indian families before placement with non-Indian third parties, “in the absence of good cause to the contrary.”
In spite of kinship preferences in statute, many states provide less or no financial support to kin if approved under placement standards different from those applied to non-kin. This problem has been addressed by amendments to Title IV-E of the Social Security Act, issued September 28, 2023. These increase support for kinship placements by explicitly giving child welfare agencies the option to use kin-specific foster care licensing or approval standards and encouraging them to limit those standards to federal safety requirements. This allows licensed or approved kinship foster homes to receive the same maintenance payments as non-kin foster homes.
Putting aside ideological and budgetary considerations, child development research has clearly established that family connections are critical to healthy child development and a sense of belonging. Further, having a stable connection to family after reaching legal adulthood makes identification of kin particularly critical for older youth. Although each family situation is unique and kinship placements are not always appropriate, state and federal laws generally consider them the first place to look when children must be placed outside of their parental home.
