June 01, 2012

Judges’ Roles in Implementing Fostering Connections: Relative Caregiver Provisions

Grandfamilies State Law and Policy Resource Center

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 Fostering Connections to Success and Increasing Adoptions Act, Public Law 110-351 (“Fostering Connections”), is a federal law designed to promote permanent families for children and youth in foster care. This law encourages:

  • maintaining family connections,
  • supporting youth transitioning from foster care,
  • ensuring the health and educational well-being for foster youth, and
  • providing many Native American children important federal protections and support for the first time by allowing Tribes to directly administer their local programs authorized by Title IV-E of the Social Security Act.

This and future articles will present a brief overview of each section of Fostering Connections, outline some general judicial considerations for implementation and provide questions to be asked from the bench to help ensure compliance with the law and best practice.

Title I: Connecting and Supporting Relative Caregivers

Section 101: Kinship Guardianship Assistance Payments for Children

Overview

Fostering Connections gives states the option to use federal Title IV-E funds for kinship guardianship assistance payments (GAP) for Title IV-E eligible children cared for by relative foster parents committed to caring for these children permanently when they leave foster care.

Prior to Fostering Connections, 38 states1 and the District of Columbia had some form of subsidized guardianship supported by state or local funds, TANF or the Title XX Social Service Block Grant. Eleven states2 over time had waivers from HHS allowing them to use Title IV-E funds for subsidized guardianship payments.

When Fostering Connections was enacted, six of the states with waivers were still operating programs under the waiver authority, while the other five continued the program with state dollars for at least those children who had exited to guardianship under the waiver. These subsidized guardianship programs varied dramatically in size and scope. The use of federal funding for subsidized guardianship, as authorized by Fostering Connections, will help free funds previously used for state guardianship programs and will help children placed with relative foster parents achieve permanency. Judges should provide judicial leadership to get their state to pursue this option.

Eligibility - Children

Children eligible for the federal guardianship assistance program must be eligible for Title IV-E federal foster care maintenance payments while in the home of the relative for at least six consecutive months. They must demonstrate a strong attachment to the prospective relative guardian and, if 14 and older, the child must be consulted about the kinship guardianship arrangement.

Siblings of eligible children may be placed in the same home and receive support even if they themselves are not otherwise eligible. As stated in Section 206 – Sibling Placement, children should be placed with their siblings unless it is contrary to the safety or well-being of any of the siblings. Children eligible for these IV-E guardianship payments are also automatically eligible for Medicaid.

Eligibility - Guardians

Guardians are eligible if they are relatives who have assumed legal guardianship of the child and have demonstrated a strong commitment to care for the child permanently. They must have cared for the child for at least six consecutive months as a licensed foster parent (and have undergone criminal record and child abuse registry checks). Kinship caregivers who choose not to adopt should be encouraged to pursue subsidized guardianship and not forced to adopt.

Case Plan Requirements

For each child with a permanency plan of guardianship and for whom the state plans to make federal kinship guardianship assistance payments, the agency must document:

  • the steps taken to determine that return home and adoption are not appropriate options for the child,
  • the reasons for any separation of siblings,
  • the reasons why guardianship is in the child’s best interests,
  • the ways in which the child meets the eligibility requirements,
  • the efforts to discuss adoption with kinship caregivers and the reasons why adoption was not chosen, understanding that the reason that kin choose not to adopt may be cultural, and the efforts to discuss guardianship with the child’s parents or reasons why such efforts were not made.

State Requirements

The state must amend and submit a revised state Title IV-E plan to the Administration for Children and Families, Children’s Bureau, Department of Health and Human Services equesting Title IV-E funds for GAP and must provide the state and/or local dollars required to match federal dollars for the program. The kinship guardianship assistance payment rate must not exceed the foster care payment made to a foster family had the child remained in a foster family home. The state must also share, under the federal match, the total cost of nonrecurring expenses associated with obtaining legal guardianship of a child up to $2,000.

The state must negotiate a written guardianship assistance agreement with prospective guardians. The agreement must specify the amount of payment and manner of adjustment of payment. Note that the child maintains eligibility for adoption assistance in the event that the guardian wants to adopt the child later, if the child was eligible for such assistance when he or she exited to guardianship. Additionally the kinship guardianship agreement remains in effect even if the guardian moves to another state.

Under Fostering Connections, federal kinship guardianship assistance (GAP) payments are only available when the child and guardian meet all of the Title IV-E eligibility requirements and have entered into a guardianship assistance agreement that meets the requirements of the Federal law. To provide the greatest number of children with this important permanency option, states may operate a subsidized guardianship program, which uses Title IV-E, other federal, state, and/or local resources, to support both children who are eligible for IV-E GAP and those who are not.

See: New Help for Children Raised by Grandparents and Other Relatives at
www.grandfamilies.org and the Fostering Connections Kinship Toolkit at
www.fosteringconnections.org for more information.


Judicial Considerations

How does your state define relative, if at all?

  • Does it include “fictive” kin, people who are not related by blood, marriage or adoption to the child, such as Godparents and close family friends, but have a significant relationship to the child or family?
  • Is your definition of relative consistent with the definition used for the identification and notice provisions?
  • The Program Instruction issued on July 9, 2010 gives states discretion to define “relative” as they see fit and encourages states to use the same definition for both the GAP program and the identification and notice provisions. See sections D and H: Program Instruction, ACYF-CB-PI-10-11.

Are lawyers available to represent relatives in your area?

  • Under Fostering Connections, the state must pay nonrecurring costs required to obtain a guardianship up to $2,000, which includes the cost of legal representation for the relative guardian.
  • Under Fostering Connections, increased resources are available to help train judges and attorneys in the event that additional legal resources are needed in your area. See: Section 203 - Short-Term Training for Child Welfare Agencies, Relative Guardians and Court Personnel

Does the court order address the following, if applicable?

  • The case plan requirements for GAP (see below)
  • The contact/visitation plan with the parents, siblings, or other relatives - including whether the visitation is supervised, location, frequency, best interest controls
  • Clarify the rights of guardians vs. rights of parents
  • Identify a successor guardian, or need for a standby guardian if the guardian is chronically or terminally ill or require a court hearing if the guardian is no longer able to care for the child
  • Any other necessary provisions or conditions required under ASFA or state law

Is there a clear process for considering modification of guardianship orders and the underlying assistance agreements, when necessary; i.e., change in custody or visitation terms, change in supports or services needed by the child, success or guardian?

  • This process can be documented in the form of policy, local court rules or state statute

Questions to Ask from the Bench

Does the case plan meet all of the requirements of Fostering Connections?

  • Why is guardianship the most appropriate option for the child?
    - What steps have been taken to determine that reunification and adoption are not appropriate options for the child?

    - Is guardianship in the child’s best interest?
  • If siblings are not going to be placed together in a guardianship, because of contrary to safety or well-being, why not, and what is the plan to keep them connected? See: Section 206 – Sibling Placement.
    - The Program Instruction allows states to define siblings for the purposes of subsidized guardianship. See: Program Instruction, ACYF-CB-PI-10-11.
  • Did the child meet all eligibility requirements of GAP?
    - Is the child eligible for Title IV-E federal foster care maintenance payments?

    - Has the child been living in the home of the licensed, prospective relative guardian for at least six (6) consecutive months?

    - In what ways does the child demonstrate a strong attachment to the prospective relative guardian?
  • What efforts have been made to discuss adoption with kinship caregivers and the reasons why adoption was not chosen?
  • What efforts have been made to discuss guardianship with the child’s parents or reasons why such efforts were not made?

If the child is age 14 and older, how has he or she been consulted about the guardianship? What feedback did the child provide regarding guardianship, if any?

  • When appropriate, consider consulting the child in chambers or allowing the child to testify, if they would like to be heard.
  • The court should also consider consulting with younger children, in a developmentally appropriate manner.

In what ways has the guardian demonstrated a commitment and ability to care for the child permanently?

What is the relationship between the guardian and the parents?

What is the visitation plan, if applicable?

  • Should the visits be supervised?
  • What is the location and frequency of the visits?
  • Should the order contain a clause that the best interest of the child ultimately determines visitation? What is the process to determine the best interests of the child?

Who is the successor or standby guardian?

Are there any other necessary provisions or conditions that should be specified in the court order?

Section 102: Family Connection Grants

Overview

Fostering Connections authorizes a new grant program for activities designed to connect children in foster care (or at risk of entering foster care) with family. Funds can be used for the creation or expansion of:

  1. Kinship navigator programs;
  2. Intensive family-finding efforts to search for relatives or other important individuals in the child’s life and establish family connections;
  3. Family group decision making, team decision making and other similar family group conferencing meetings; or
  4. Residential family substance abuse treatment programs that prevent separation or facilitate reunification while parents receive comprehensive treatment services.

The act guarantees $15 million a year for competitive, matching grants to state, local, or tribal child welfare agencies and nonprofit organizations that have experience working with children in foster care or kinship care. $5 million of these funds are reserved each year for grants for kinship navigator programs.

See: List of FY 2009 Children’s Bureau Discretionary Grant Awards for a list of programs that have been funded to date.

Judicial Considerations

Are there any of these programs in your area?

If there are programs in your area, what are the eligibility requirements?

  • How might they be helpful to families coming before you?

Are there similar programs available to the families before you, such as through the CASA/GAL program or an agency trained by the National Institute for Permanent Family Connectedness (formerly the Center for Family Finding)?

  • Judges should be familiar with local resources and if there are none, be willing to develop them.

If there is not a formalized program, what efforts has the agency made to locate family members, including any missing or unidentified parents, and the use of the Federal and State Parent Locator Service? See: Section 103: Identification of and Notice to Relatives

If there are no programs in the area, are any local agencies or organizations planning to apply for a grant in the future?

  • Judges should be willing to inquire and lead stakeholders in grant applications.

Questions to Ask from the Bench

Were referrals made to relevant programs that could be helpful?

  • If not, should you order the agency to make a referral?


Section 103: Identification of and Notice to Relatives

Overview

Within 30 days after the child is removed from his or her parents’ custody, Fostering Connections requires state agencies to exercise due diligence to identify and provide notice to all adult grandparents and other adult relatives of a child (including any other adult relatives suggested by the parents).

The notice must:

  1. specify that the child was removed from the custody of the parent(s),
  2. explain the options the relative has to participate in the care and/or placement of the child, and any options that may be lost by failing to respond to the notice,
  3. describe the requirements to become foster parents,
  4. outline available services and supports, and
  5. describe the state’s kinship guardianship assistance program (GAP), if one exists.

Further, Fostering Connections makes it very clear that this notice requirement is subject only to exceptions due to family or domestic violence. The law does not allow for any other exceptions to notice.

Although Fostering Connections does not require such notice to be in writing, best practice and the Program Instruction issued by Administration for Children and Families, Children’s Bureau, Department of Health and Human Services encourages the notice to be in writing, recommends early engagement of relatives for children at risk of removal and the use of multiple methods of notice to relatives.

The Act also allows the use of the Federal Parent Locator Service to obtain state and federal child support data to help child welfare agencies carry out their responsibilities. On December 29, 2010, the Office of Child Support Enforcement in the Administration on Children and Families issued a Final Rule expanding the disclosure of information in Federal and State Parent Locator Services to child welfare agencies to assist them in locating relatives of children removed from the custody of their parent(s) to identify potential placements for the child. See: Office of Child Support Enforcement Action Transmittal AT-10-12.

Federal, state and local laws require child welfare agencies to keep certain information confidential. The requirement that states provide notice that a child is entering or has entered foster care supersedes and preempts those provisions. However, only the information necessary to comply with this federal requirement can be shared. The relative should simply be notified of the removal or impending removal and provided the information described above. There is no requirement to share the circumstances leading to the removal in the initial notice. If the child is placed with the relative or the relative becomes involved in the child’s care, additional information may be shared as appropriate. As in most aspects of child welfare practice, a determination of what can be shared will depend upon the individual circumstances, as well as local, state and federal law.

While all state laws and policies may not yet comply with this federal requirement, this notice requirement has been in effect since October 2008. See: Key Considerations for Implementing the Notice Requirement of the Fostering Connections to Success and Increasing Adoption Act and the 50 state and the District of Columbia compilation of data on current state notice statutes at www.grandfamilies.org. See also: Sample Notice Letter at www.childrensdefense.org/child-research-data-publications/data/sample-notice-letter.pdf.

Judicial Considerations

The Program Instruction stresses that the courts can play an important role in relative identification and notification.

Beyond the federal relative identification and notice requirements, what are your state’s relative notice requirements or policies?

  • Will the agency continue to proactively identify and provide notice to family members beyond the 30 day requirement, when appropriate?
  • The Program Instruction encourages engaging relatives for children at risk of removal as well.

How does your state define relative for purposes of notice, if defined?

  • Is your definition of relative consistent with the definition used for your state’s kinship guardianship assistance program (GAP)?
  • The Program Instruction issued on July 9, 2010 gives states discretion to define “relative” as they see fit and encourages states to use the same definition for both the GAP program and the identification and notice provisions. See sections D and H: Program Instruction, ACYF-CB-PI-10-11.

How is due diligence defined in your state? How can the court ensure that due diligence has been exercised?

  • How are identification, location, and engagement of noncustodial parents handled?
  • What documentation should the court require to show that proper due diligence was exercised in identifying and providing notice to all adult relatives?
    - How is the state documenting diligent search efforts and their outcomes, including conversations staff have with relatives about the role they can play in the child’s life?

    - Has notice been written in plain language, easily understood by the general population, available in other languages, and provided with any necessary accommodations for the deaf population, or for those with visual impairments or in need of an interpreter?

    -The Program Instruction encourages the notice to be in writing.


How does your state approach the family or domestic violence exception to notice?

  • Who will be making these family violence exception determinations (e.g., judge, attorney, the department, caseworker, etc.)?
  • What are the criteria and documentation requirements, if any, for the family or domestic violence exception?
  • How does your state take into consideration the court or state’s belief that notice may be dangerous to the family or child?
  • If notice would not be in the best interest of the child due to past or current family or domestic violence; or
  • If notice would put the child or parent at risk of physical, mental, or emotional abuse.
  • Note: the exception may be decided on a case-by-case basis, and then the state is relieved of their diligent efforts to notify those specific relatives only.
  • Federal law does not allow the state to create “other exceptions” to the notice requirement, including parental objection to notice. The only exception is family or domestic violence.

What are the various placement options available in your jurisdiction to relatives, both informal and formal? See: Section 104: Allowing Waivers for Non-Safety Licensing Standards for Relatives.

Has the agency explored ways to keep the relative connected with the child if they are not a placement option?

  • This could include participation in family group decision making conferences, in the child’s school or extracurricular activities, or providing a home for holidays or weekend visits.
  • Continue notifying relatives for all hearings after the initial and jurisdictional/dispositional hearings.

Questions to Ask from the Bench

Which relatives have been identified?

  • Have they all been notified? If not, why not?

How has the agency exercised “due diligence” to identify and notify all relatives (ask at the first hearing and all subsequent hearings, when appropriate)?

  • Has the agency used a combination of good casework and technological resources?
  • Have both paternal and maternal relatives been identified and notified?
  • Has the agency asked the child to identify who is important in his or her life?

Ask parents and the child, in a developmentally appropriate manner, to identify relatives and possible placement and family resources. Judges should speak directly to parents on the record about:

  • What efforts have been made to ensure that parent/s understand the possible benefits to the child if the child is placed with people he or she knows and of continued contact (even if not placed) with people who are important to him or her?
  • What efforts have been made to ensure that parent(s) know that their child/ren may be placed with people they don’t know if the agency cannot locate a suitable relative placement?

Which relatives have come forward as resources for the child? How would they like to be involved?

What is the agency doing to follow up on each of these relative resources?

Is the agency making plans to license the relative/s that are seeking placement?

  • If relatives who have been identified don’t qualify for licensing, has the agency considered licensing waivers?

Has the child been asked what his/her placement preference is?

Are there family or domestic violence issues that warrant making an exception to the identification and notice requirements?

What efforts have been made to ensure that the relative understands the various placement options available to them?

  • What efforts have been made to ensure they understand the options that may be lost by failing to respond to the notice?
  • What efforts have been made to ensure the relative caregivers and the family (parents and child) understand the role of the relative in the process?
  • How were family members made aware of ways that they may stay connected with the child and engaged in the child’s case, even if they are not a viable placement option for the child?

What efforts have been made to ensure that relatives understand the support and services available to them under the various placement options?

Have the efforts to indentify and notify relatives been documented in the court reports?

Section 104: Allowing Waivers for Non-Safety Licensing Standards for Relatives

Overview

Fostering Connections allows states to waive non-safety licensing standards for relatives on a case-by-case basis to eliminate barriers to placing children safely with relatives in licensed foster homes. These standards may include requirements such as mandatory square footage and minimum numbers of bedrooms or bathrooms per person. It also required HHS to submit a report to Congress by October 7, 2010 that examines state licensing standards, states’ use of case-by-case waivers, and the effect of these waivers on children in foster care.

The report was also required to review the reasons relative foster family homes may not be able to be licensed, and recommend administrative or legislative actions to allow more children to be safely placed in relative foster homes and be eligible for federal support.

Generally, when a child is placed in the custody of a state’s child welfare agency, that child must be placed in some form of licensed foster home to receive federal reimbursement under Title IV-E. Licensing requirements and terminology differ from state to state. States have discretion to establish licensing standards and define which standards are considered safety related and which are non-safety related. For a 50 state and the District of Columbia compilation of data on current state waiver laws and policies, visit www.grandfamilies.org. See also Relative Foster Care Licensing Waivers in the States: Policies and Possibilities for an overview of current waiver policies in the states.

Judicial Considerations

What are your state’s licensing requirements? Note that licensing policy may be found in statute, administrative codes, and policies.

What is your state’s policy on waivers of licensing requirements?

What is the state’s philosophy and practice regarding licensing relatives as foster parents?
Does policy differ from actual practice? If so, how?

Which licensing standards are considered safety-related? Non- safety-related?

What are the common reasons why relatives are not licensed? What assistance is available to help relatives who are denied licensing?

Are waivers applied equitably? What is the procedure for decision making regarding waivers?

Questions to Ask from the Bench

Have relatives come forward and/or been identified as placement resources for this child? Have they been licensed?

What barriers, if any, are there to licensing a relative placement for this child?

Have waivers been considered in this case to enable safe placement with a relative? If not, why not?

Does the relative need assistance in advocating for placement?

Stay tuned next month for guidance on implementing provisions addressing youth transitioning from foster care.

The Grandfamilies State Law and Policy Resource Center, a collaboration between Casey Family Programs, the American Bar Association Center on Children and the Law, and Generations United and co-sponsored by the National Council of Juvenile and Family Court Judges and the National Center for State Courts.

This article was adapted from the Judicial Guide to Implementing the Fostering Connections to Success and Increasing Adoptions Act of 2008, by the ABA Grandfamilies State Law and Policy Resource Center.

Endnotes

1. Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island (only for non-relatives), South Dakota, Tennessee, Utah, Virginia, West Virginia, Wisconsin, and Wyoming.

2. Delaware, Illinois, Iowa, Maryland, Minnesota, Montana, New Mexico, North Carolina, Oregon, Tennessee, and Wisconsin.