The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
The ABA Center on Children and the Law, Generations United, The Annie E. Casey Foundation, and the National Association for Regulatory Administration (NARA) has released the first set of comprehensive model family foster home licensing standards. NARA has taken the added step of adopting them as its standards. Each partner, along with Advocates for Families First, a collaboration between the North American Council on Adoptable Children, the National Foster Parent Association, and Generations United, is promoting the standards to states and counties. The goal is for all states to use them to assess and align their own family foster home licensing standards.
New model family foster home licensing standards make it possible for more relatives and nonrelated applicants to become licensed foster parents. A larger pool of safe and appropriate foster parents, in turn, will allow more children to live in licensed homes with supports, protections and access to the permanency option of guardianship, all of which they do not have in unlicensed homes.
This model addresses state barriers that prevent many suitable relatives and nonrelated applicants from becoming foster parents. Commonsense standards will lead to safe placements, rather than pose artificial barriers based on middle-class notions of what are appropriate homes and families. Gone are the rigid square footage requirements and obligations to own a vehicle. In their place are capacity standards based on home studies and provisions that other transportation methods, including public transportation, may be used.
Each model standard is approached in the same reasonable, clear way. The federal government will now be able to point to sensible requirements that consider community norms and cultural differences. The partners who created this model urge states to align their standards with it, and work with applicants to license safe and appropriate homes around the country.
Federal Law Flexibility on Family Foster Care Licensing
Federal law allows states a great deal of flexibility in creating family foster home licensing standards. The Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. § 671(a)(20)(A) and (B) (Adam Walsh), requires states to conduct child abuse and neglect and criminal background checks on all applicants who seek to become foster parents. The Social Security Act at 42 U.S.C. § 671(a)(10) also tells states that:
[A] State authority or authorities…shall be responsible for establishing and maintaining standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes, including standards related to admission policies, safety, sanitation, and protection of civil rights, provides that the standards so established shall be applied by the State to any foster family home or child care institution receiving funds under this part or part B of this subchapter and provides that a waiver of any such standard may be made only on a case-by-case basis for non-safety standards (as determined by the State) in relative foster family homes for specific children in care.
Aside from these few requirements, the federal government leaves family foster care licensing to the states. Consequently, the standards differ dramatically around the country.
Research on State Licensing Standards
For many years, families have been reporting that state standards are posing unnecessary barriers to becoming licensed, so attorneys at Generations United and the ABA Center on Children in the Law embarked on a year-long project researching family foster care licensing standards in state codes and regulations for each state and the District of Columbia. When both the code and regulations were missing key licensing standards, the state child welfare policy manual was also reviewed. Research confirmed
the families’ stories of barriers by exposing a variety of problematic standards, standards that had more to do with middle class ideals and the result of lawsuits. For example, prohibiting certain types of dogs and/or requiring that foster care applicants be no older than age 65.
Purposes of the Model Licensing Standards
Equipped with the state standards from all 50 states and the District of Columbia, the partners decided to create model licensing standards that:
- Fulfill the public policy intent behind licensing standards, which is to ensure that children in foster care have safe and appropriate placements.
- Fill the previous void in “national standards” by creating clear, practical, common standards that work to ensure that children, regardless of the state in which they live, will be placed in homes that have met the same safety standards.
- Facilitate the licensing of additional relative and nonrelative homes by recognizing and respecting related and nonrelated foster parents as caregivers who are performing an invaluable service.
- Reflect community standards and be flexible so children in out-of-home care are placed in the best homes for them.
Elements of Model Licensing Standards
The partners used model language from the states, while also considering language from the Child Welfare League of America and the Council on Accreditation to create reasonable and achievable safety standards for family foster home licensing.
The model standards cover all requirements necessary to license safe and appropriate family foster homes. They include 14 categories of criteria necessary to become a family foster home—everything from physical and mental health to criminal and abuse and neglect background checks. The standards even include an “assurances” section, which cover areas like weapons safety after child placement, so applicants know the standards to which they will be held and can agree before placement. Other than this assurances section, however, the standards are limited to the standards necessary to become a licensed family foster home and do not include placement or post-placement requirements.
As an example of how the model standards are written, consider the “eligibility” requirements. In many states, applicants must speak English, have high school diplomas, and have enough income and resources to cover the expenses of a foster child. Instead of creating barriers like these to applicants who otherwise might be very appropriate and suitable, the model standards require:
- Functional literacy or the ability to read and write at the level necessary to participate effectively in society. The means, for example, being able to follow written directions from a health care provider or child welfare agency, read street signs and medicine labels. “Society” is where the applicant lives and works. So, for example, if the applicant is in Little Havana in Miami, Spanish could be the language necessary to participate effectively.
- The ability to communicate with the child in his/her own language.
- The ability to speak to service providers and the child welfare agency, but this may occur through the use of family and friends as translators.
- “Income or resources to make timely payments for shelter, food, utility costs, clothing and other household expenses prior to the addition of child in foster care.” This standard addresses the public interest of not promoting applications from those who are only seeking foster children as income supplements, while also not limiting applications from only those wealthy enough to take on a child without monthly financial assistance to help meet the needs of that child.
Living Space Standards
The model standards contain similar common sense approaches to living space. Rather than requiring minimum, specific square footage, the model standards look at community standards and seek to ensure that the foster child has the same type of space as any other child in the home. A foster child cannot live in the dining room, when all the other children have their own bedrooms. But, if other children have similar spaces, a foster child could have a sleeping space that doubles as a sitting area during the day.
Homes will be assessed based on a comprehensive home study that looks at safety, but that does not judge the home based on 21st century building codes. The standards allow for the licensing of appropriate rural, urban, and suburban homes, provided they meet community standards and are safe. For example, if the home was built in the 19th century and is maintained according to community standards, the house will not be automatically excluded from consideration if it has lead paint or small bedrooms. The licensors will use the model standards, along with guidance in an accompanying interpretive guide, to determine suitability.
Criminal Background Standards
Another area that often acts as a barrier for licensing appropriate foster parents is criminal background checks. Felony convictions for child abuse and neglect, other crimes against children, spousal abuse, and crimes involving violence, such as rape and homicide, act as automatic barriers to licensing, as they should, under Adam Walsh.
However, other crimes, such as catching too many fish on a fishing license or writing bad checks, have prevented otherwise suitable relative and nonrelative applicants from becoming foster parents in many states. Consequently, the model standards strictly follow the Adam Walsh law. For other crimes, the model uses language from Illinois at 89 Ill. Adm. Code 402.13, which provides eight specific criteria—including type of crime and the relationship of the crime and the capacity to care for children —to use in assessing whether a crime should act as a barrier to licensure.
The model standards are clear, practical standards that are not case specific or the result of litigation or socioeconomic bias. They are the first step to facilitating the licensing of additional relative and nonrelative homes, so that children live in safe homes with child welfare and court oversight, receive monthly support to help meet their needs, and can access services, such as child care. By living in licensed homes, children who live in the many states and tribes that participate in the federal Guardianship Assistance Program (GAP) may also have access to the permanency option of subsidized guardianship.
The partners who created this model are working towards all states adopting it. Not all states will be able to implement the model in its entirety without any modifications, but the partners challenge states to use the model and an accompanying crosswalk tool to assess and align their standards with the model.
After adopting the standards, states should work with related and nonrelated caregivers and help them become licensed by providing support throughout the process. With improved standards and assistance throughout the process, more relatives and nonrelatives will be able to provide families to the many children around the country needing safe and appropriate homes.
Ana Beltran, JD, is a special advisor to Generations United’s National Center on Grandfamilies. For over 15 years, Ana has worked to support kinship families by advocating for supportive laws and providing training and technical assistance on child welfare, housing, legal relationships, and other issues impacting the families.
Heidi Redlich Epstein, JD, is director of kinship policy and assistant director of state projects at the ABA Center on Children and the Law. She co-manages the Grandfamilies State Law and Policy Resource Center.