A Journal for Family Well-Being | Fall 2022
Family Is Best Interest
Family Integrity & Justice W RKS
Fall 2022 | Vol. 1 | Issue 4
A Journal for Family Well-Being
Editor-in-Chief Jerry Milner Director of Family Justice Group _____________________ Editor-in-Chief David Kelly Director of Family Justice Group _____________________
Editorial Board Members Justin Abbasi Co-Founder, Harbor Scholars: A Dwight Hall Program at Yale Zabrina Aleguire, JD Family Defense Practitioner Laura W. Boyd, Ph.D. Owner and CEO, Policy & Performance Consultants, Inc. Melissa D. Carter, J.D. Clinical Professor of Law, Emory Law Kimberly A. Cluff, JD MPA Candidate 2022, Goldman School of Public Policy, Legal Director, California Tribal Families Coalition Kathleen Creamer Managing Attorney, Family Advocacy Unit Community Legal Services of Philadelphia Angelique Day, Ph.D., MSW Associate Professor Faculty Affiliate of the Indigenous Wellness Research Institute Director of Federal Policy for Partners for Our Children School of Social Work, University of Washington Seattle Adjunct Faculty, Evans School of Public Policy and Governance Yven Destin, Ph.D. Educator and Independent Researcher of Race and Ethnic Relations Paul DiLorenzo, ACSW, MLSP National Child Welfare Consultant Carmen Hidalgo Parent Advocate, Family Defense Practitioner J. Bart Klika, MSW, Ph.D. Chief Research Officer, Prevent Child Abuse America Heidi McIntosh Principal, LGC CORE Consulting, LLC Jessica Pryce, Ph.D. Director, Florida Institute for Child Welfare Florida State University Delia Sharpe, Esq. Executive Director, California Tribal Families Coalition Mark Testa Distinguished Professor Emeritus, University of North Carolina, Chapel Hill Elizabeth Wendel, MSW, LSW International Consultant, Family Well-Being and Mental Health Systems _______________________________________________ Advisory Board Members Jamole Callahan Director of Training and Development National Center for Housing and Child Welfare Angelique Day, PhD, MSW Associate Professor Faculty Affiliate of the Indigenous Wellness Research Institute Director of Federal Policy for Partners for Our Children University of Washington Seattle Glenda McMillan, MSW, LMSW Regional Vice President, Public Knowledge® Dr. Melissa T. Merrick President and CEO, Prevent Child Abuse America Stacey Moss, JD, CWLS, PMP President, Public Knowledge® Vivek S. Sankaran Clinical Professor of Law, University of Michigan, Michigan Law Shrounda Selivanoff, BAS Director of Public Policy, Children’s Home Society of Washington Victor E. Sims, MBA BA Management Consultant, Public Knowledge®
Publisher Stacey Moss President Public Knowledge ® _____________________ Managing Editor Christie Matlock Management Consultant Public Knowledge ® _____________________ Editor and Contributing Author Jey Rajaraman Management Consultant Public Knowledge ® _____________________ Copy Editors Kristin Baughman Copywriter Public Knowledge ® Stephanie Meisner-Maggard
Marketing Director Public Knowledge ® _____________________ Design
Janelle Shields Graphic Designer Public Knowledge ®
© 2022 by Family Integrity & Justice Works. All rights reserved. Family Integrity & Justice Quarterly is published quarterly by the Family Integrity & Justice Works (ISSN 2770-6982). For information visit fijworks.com
Paul Vincent, MSW Independent Consultant
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Fall 2022 Issue | Vol. 1 | Issue 4
30 | Kinship Matters: Reflections from the Bench on Preserving Children's Right to Family
50 | Best Interest Determinations: Lessons Learned from Tribal Child Welfare Agency, Court Professionals, and Youths Angelique Day
A Journal for Family Well-Being
Judge Edwina Richardson Mendelson
Claudette Grinnell-Davis Dakota Roundtree-Swain
MY PERSPECTIVE 14 | Liliana Cory
60 | What the System Taught Me Cheri Willams A BETTER WAY 68 | Facilitating Kinship Licensure and Foster Care Exists to Guardianship
6 | Securing and Restoring the Family Is in the Child's Best Interests Jey Rajaraman Alexandra Travis Iesha Hammons FOREWORD 10 | When Best Interests are Not: The Need to Redefine the Best Interest of the Child
17 | On The Cover
Angelique Day Grace Nielson Scout Hartley Charles E. Lewis, Jr.
David Kelly Jerry Milner
REFLECTIONS 76 | A Conversation with Carolyn Tancemore Jey Rajaraman
▶ 38 Smile
An Original Poem Titus Smith ▶ 40 Every Year Since 1984 An Original Poem Diane Redleaf
FEATURES 18 | Creating a Strong Legal
Preference for Kinship Care Josh Gupta-Kagan
42 | Family Is in a Child's Best Interest Amelia S. Watson
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FOREWORD Securing and Restoring the Family Is in the Child's Best Interests Jey Rajaraman with Alexandra Travis and Iesha Hammons, Impacted Parents within the Child Welfare System
I grew up in foster care, and my rights to my mother were terminated. I never fully understood my mother’s case until I faced my own allegations, which in turn led to my children being taken from me. During my years in foster care, I was abused, and no one cared. I was told my mother picked drugs over me, but that was not true. I reconnected with mom in my twenties – we became inseparable until the day she died in 2018. In 2013, I was walking down a block in my old neighborhood when the father of my children’s sister started pushing and shoving me. Police were called to break up the fight, and we were both arrested, even though I was the victim. Five days after my arrest and release, my children, ages 2, 4, and 10, were taken by the State. The charges against me were dropped, but I still had to convince a judge and a caseworker that I was able to care for my children. I completed psychiatric evaluations, supervised visits, parenting classes, and more. It took nearly five years to get my kids back, a lifetime to a small child. I often wondered . . . did it need to be so hard? Did the child welfare system see a Black, poor mother and a victim of domestic violence and just assume I was an unfit parent? My kids still have nightmares to this day about being taken from me. I still jump up every time the doorbell rings. I believe that best interest would have been the DCPP never taking my children The separation, the court process, and the pain caused by it all was not in the best interest of The removal rate of children is devastatingly high — most of them being completely preventable. It is important to bring awareness of how having a parent ally and pre-prevention work can positively impact the outcomes for families. I had two child welfare agency cases. The first tragically ended in the removal and ultimate adoption of my two eldest children to strangers, and the second case was a triumphant and rare reunification! our children. It was the opposite. Alexandra’s Story Let’s start with the most common misconception: that substance abuse, poverty, or race must mean you are an abusive or
Living in poverty and struggling with securing stable housing and appropriate treatments has definitely been difficult for Jack and his mom. However, the alternative—the removal and separation of Jack from his mother—would likely be much more devastating and traumatic for both of them. In addition to losing her son to the system, “Jen” would no longer be able to access services and supports only available to families with children. Once Jack aged out of the system, he would need extensive supports and services. How would he be able to support himself without his mother and other family? Removing a child from his or her parents is one of the, if not most, traumatic events that can occur during childhood. Data, research, and the stories of those with lived experience, like Iesha and Alexandra, bear this out. Here are their thoughts on best interests from personal experience. Iesha’s Story In 2018, LSNJ introduced a new project in conjunction with the New Jersey Division of Child Protection and Permanency (DCPP). Receiving client referrals directly from DCPP allowed us to quickly identify and assist with critical legal issues and help prevent the loss of housing, thereby preventing unnecessary removals and ultimately keeping families together. I am proud to be LSNJ’s first “parent ally.” In this role, I work with LSNJ’s Family Representation Project to help prevent unnecessary child removals. I have assisted in over 20 of these prevention cases. In this role, I speak with parents and families and use my perspective and experience to provide support. As someone who experienced the child welfare system as both a child and a mother, I believe I possess a unique perspective that has driven my passion for helping other struggling parents.
What I Know as a Family Defender
The child welfare system needs to commit to the basic and simple principle that securing and supporting families is in the child’s best interest. Family disruption should be avoided and only exercised under the most egregious circumstances. When I worked at Legal Services of New Jersey (LSNJ), I represented a mom named “Jen.” She struggled with drug addiction and housing instability. Her 17-year-old son, Jack, was diagnosed with Down Syndrome. During the day, they moved from park to park. In the evenings, they sought help from friends and family for a place to sleep. Jack lived with his mother his whole life. Although they lived in extreme poverty, Jack consistently attended school while in his mother’s care. They received food stamps and were able to get food and other forms of assistance from friends and family. They were best friends who held onto each tightly. At the time that I represented “Jen,” the agency was seeking to remove Jack from her rather than provide financial support for her to secure shelter so that they could remain together. A child like Jack is difficult to place in a long- term foster placement. If he was removed, it was likely he would either move from foster home to foster home or be placed in an out- of-state residential treatment center. The latter would make regular visitation with his mother and kin virtually impossible. He would likely age out of the system. The alternative to the agency plan predicated on removal was to support Jen and Jack as a family unit, place them together in a shelter or hotel, and assist them with housing and welfare benefits.
Alexandra Travis and Jey Rajaraman
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neglectful parent. I am here to tell you that those do not go hand in hand. Good people make mistakes. We all do. I am a survivor of childhood trauma and abuse. I thought I healed those wounds, but they were always there. As an adult, the trauma resurfaced, and I found myself in the grips of alcoholism, something that runs rampant in my family and something that I hoped would never affect me. All I ever dreamt of was breaking the cycle of my family, but even though I had a loving and supportive spouse and two beautiful children at home, it wasn’t enough. After landing a prestigious job at a five-star restaurant, and having to work with a wine sommelier, my alcoholism was triggered, and I started to abuse alcohol. It happened fast and I found myself arrested and incarcerated. When I was going through this trauma, I didn’t have anyone to talk to who could understand what I was going through. I could have really used someone like myself, a parent ally. I was labeled and deemed a child abuser and an unfit parent, something that will stay on my record and name forever! I was forced out of our family home and into homelessness. All the while, my unfailing husband was complying with every task, jumping through every hoop, and trying to hold the family together; his only fault was being married to me. The system forced my husband to choose between our children and me. After 12 years together, we even came to the sad idea of the resolution being divorce, if that’s what it took. We had so many questions and no one to answer them; we were lost. I wish I had known about LSNJ sooner than I did. In the meantime, because our children were removed, we lost our welfare benefits causing us to lose our home and all the precious memories in it; we even lost our beloved pets. With no help, support or resources provided, and eventually seeing myself as the problem, I fled the state. My husband was seen as incapable of parenting his children by himself because we lost our housing. Our children were adopted out to total strangers, and we were just left on our knees in the dust of what was our lives. We needed support, not punishment.
Tell me, if you knew our story, would you still advocate so fiercely for adoption and termination? Would you permanently separate us as a family and prevent five siblings from having a life and future together? Would you allow these traumatic actions that caused a seven-year-old to consider suicide and a young boy to pluck out his own eyelashes, eyebrows, and hair? That’s what separation does. Was that in the best interest of my children? Was I so invaluable as a human being I wasn’t worth the time, empathy, or support? What do you see when you look at me now? The hurt and trauma we are causing by removing children and terminating rights are incomprehensible and monumental. The impact of these actions can span generations! I know our children would have wanted us during our time of struggle! Even now, after all these years, they still want us, but we will forever be terminated from each other. Is that in their best interest? Now What? After removal, children and parents continue to be physically separated for most of the duration of the case. Parents and children have different case plans and are on distinct and separate service tracks. For example, in most places, stranger foster parents neither meet the child’s parents nor assist with visitation or family time. After removal, and while a child is in foster care, parents are not typically included in their children's medical matters nor involved in their children's education, despite retaining the legal right to do both. Parents are not included in their child's daily activities nor involved in any decision-making. Parental input is neither considered nor deemed relevant. The current system is engineered to separate families and not to unify and support families. This is not in a child’s best interest. In making a shift, we must transition from a surveillance agency narrative to a secure and restorative narrative for both parents and children. Children should not be removed from their homes, families, and communities because they are poor. Children should not be
separated from their parents while the parent is expected to resolve the traumatic impact and shrapnel of multigenerational poverty on their own. Yet, the current agency surveillance system often lacks the tools to address the root causes of poverty and instead treats those causes as neglect. The current system needs to help treat conditions of poverty with individualized services and benefits and
eliminate the risk of separation that poor children and families currently face simply because they are poor. Agencies have an affirmative duty to secure concrete services for families, such as services to address housing instability, mental health concerns, and substance use issues.
© Jey Rajaraman
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When Best Interests are Not: The Need to Redefine the Best Interest of the Child David Kelly and Jerry Milner
The phrase best interest(s) of the child is prevalent in child welfare law and practice. It is a legal standard on which attorneys root arguments and a basis of judicial determinations. It is used to guide social work practice and expert recommendations for what should happen to a child. They are words that are commonly spoken in justifying a decision to remove a child from their parents and place him/her/they in foster care. They are words utilized to sever permanently a parent’s rights and promote adoption. They are words used to describe the opinions formed by lay volunteers or attorneys that advocate for what they think will benefit a child instead of a child’s wishes. And they are words that are used too often as something distinct from a child’s parents. They can be weaponized to punish parents. Best interest(s) are utilized in our current system so often to justify so many things that they fail to carry true meaning, which can and does cause harm to children and their parents. We must reexamine this longstanding feature of the child welfare system and define its meaning more explicitly and completely or jettison it altogether. This is the focus of this issue of the Family Integrity & Justice Quarterly and one that is closely linked to other critical aspects of the child welfare system, including how the family’s interests are understood and addressed. As a legal standard, best interest is anything but standard. There is no federal definition of best interest(s), and state definitions vary widely. As multiple authors point out in this issue of the journal, best interest is among the most ambiguous standards in child welfare law, and this ambiguity increases the likelihood of subjective decision- making that can reflect harmful bias. The lack of clarity on what constitutes best interests, and whose judgment prevails, in making those decisions is described adeptly in Cheri Williams’ article in this issue. She notes that the local child welfare culture and subjectivity in decision-making trump the actual law. She notes further that courts can become “rodeos” of subjective arguments over what constitutes the best interests of a child.
© filadendron | iStock.com
The danger of subjectivity and bias extends to the bench, where judges and judicial officers receive arguments or reports of what is in a child’s best interests and often insufficient information about the details of important family dynamics and relationships or child- specific needs and desires. Rather, making a determination of “best interest of the child” when removing a child is inextricably linked to the child’s ongoing eligibility for federal
reimbursements to states for the cost of the child’s foster care maintenance. Therefore, we must ask in whose best interests are those decisions made — the child’s or the agency’s — and whose judgment decides what is in a child’s best interests? And absent a termination of parental rights, why wouldn’t a parent’s wishes —which are constitutionally protected — continue to carry the most weight in what is best for their own child?
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The standard and determination beg a litany of questions. What do we truly mean by best interests? What does it require or entail? Who should make those decisions? How do we safeguard against implicit and explicit biases, cultural misunderstanding, and racism? Some state statutes include attempts to flesh out the standard by including specific components of what should be considered in a best interest determination. However, we have yet to see a definition that is as wholistic and accounts for critical continued family connection. The need to redefine best interest was underscored further in a recent conversation with members of the National Association of Counsel for Children’s National Advisory Committee on Legal Representation, a group composed entirely of people who have or are experiencing out-of-home placement. When the Advisory Committee was asked to share what best interest meant to them, love, connection, and belonging were centerpieces of their expert opinion. Advisory Committee members spoke about the importance of their familial relationships—especially with parents and siblings. Their desire for those relationships to be strong and continue in the ways that best suited them when they were in foster care and how those relationships helped or would have benefited them. Best interest and well-being were intertwined and not viewed as something separate from their parents or family but as something deeply tied to their parents and loved ones. We do not often see recognition of the fact that what is in the parents’ best interest is almost always in the child’s best interests, and we continue to see parents vilified for non-compliance with case plans that are ill- matched to their strengths and needs or patently unreasonable. We see a fleet of lay volunteers in court who, at least in our perception, are represented by mostly white, middle-class individuals who may have no real-life connection to the cultures, the struggles, and the historical trauma experienced by the families and children whose very lives hang in the balance, yet who are called upon to say what is in the child’s “best interests.”
We see guardians ad litem, required for children in foster care proceedings by federal law, whose job it is to represent the child’s best interests, often when they have not really known the child or the family or had or could take the time to get to know them and understand what might really be in their “best interests.” And they may or may not actually be lawyers. Less frequently, we see children having independent legal representation, bound to represent the child’s expressed interests and desires for their futures rather than substituting the lawyers’ judgments for the child’s wishes. In fact, we see alarmingly little attention paid to relying upon parents’ and children’s voices about what is in their best interests in making the determinations. And so, we ask ourselves again, whose best interests are at stake? In their article, Angelique Day, Claudette Grinnell-Davis, and Dakota Roundtree-Swain further this discussion by noting that there are no concrete guidelines for determining best interests, and provide insight into the concept of someone else determining a child’s best interests as opposed to permitting the child or youth to express directly what they believe to be in their interests. Day, Grinnell-Davis, and Roundtree-Swain offer compelling insights into the practice of many tribal courts that, as a matter of culture and respect for children, always consult with the children on their expressed interests. Best interest determinations affect literally every aspect of a child’s experience in foster care, from whether or not they enter foster care to when and if they return home or leave for another reason. Perhaps no other aspect of the foster care experience is as continually affected by these judgments as where and with whom a child is placed—more specifically, the extent to which children remain with known family members or enter the homes of strangers. Gupta-Kagan’s article notes clearly that our laws do not actually favor placement of children with relatives, owing to the flexibility and subjectivity permitted by States and local agencies to decide where a child goes. He and
Day, et al (in A Better Way) note the freedom that agencies have to regard any background information on relatives as undesirable and to forego relative placement. This is true even if the background information is on someone else living in the home and not the relative caregivers themselves. We believe these aspects of our child welfare system are often a reflection of our values and how we regard families involved in child welfare. For much of child welfare’s history, there has been the myth of the “apple not falling from the tree,” as noted in Williams’ description of myths in the child welfare system. Yet, nonetheless, the judgments we make about relatives of families involved in the child welfare system reinforce this concept over and over again. In Reflections, Mrs. Carolyn Tancemore provides a resounding description of this ongoing practice through the story of her grandson who was removed from his parents’ care at birth. She wanted to care for him and made the offer, only to be told she could not meet licensure standards for adoption and because she had low income and was defensive of the child’s father, her son, despite the fact that she was a nurse who loved her grandson and wanted to care for him. Unfortunately, we do not see this story as an outlier or exceptional. While some jurisdictions have moved to a much greater reliance upon kinship care, others have not. At times, it appears that we try to screen families out rather than looking for opportunities to screen them in, all in the name of best interests. This is broadly reflected in the application of background checks and licensing standards that may be impossible for some families to meet but should not preclude them from caring for their own. We acknowledge that families can be complicated at times and that competing dynamics may steer us away from seeing a family member as a safe and secure placement option for a child. Yet, we agree with Amelia Watson’s perspective that “family is in a child’s best interests.” She notes that “family” is also in the parents’ best interests since kinship placements often permit parents the relative comfort of knowing who their children are with
and that they are being cared for so that the parents can focus on what they need to do. Liliana Cory notes that even when relative placements are complicated, they can bring community and support to a person that remains with them throughout their lives. If we truly believe (and not everyone does) that children should remain with their families, we should at the very least substitute a “best efforts” standard for a best interest concept and amend federal statutes to require evidence of best efforts in monitoring and improvement efforts related to eligibility for federal funding. The “best interests” standard and determination should be either done away with, since it is practically meaningless, or linked specifically to the family’s best interest. Also, it should require substantial and objective evidence of what is in the best interests of a child and family for the court determinations and for state and federal monitoring efforts. And it should certainly not be in the hands of individuals with little understanding or knowledge of the child’s and parents’ circumstances to make recommendations as to what is in their best interests. Thanks to all our authors who have gone to the core of this incredibly important part of our work with families. _________________________ Jerry Milner is Co-Director of the Family Justice Group, a child welfare consulting firm devoted to transforming child welfare to a community-based, prevention-oriented, family- strengthening approach to achieving family well-being. He began his career as a front- line social worker in child welfare in Alabama, working primarily with teenagers in foster care and in prevention services for families. David P. Kelly, JD, MA, is Co-Director of the Family Justice Group. For over a decade he served in the United States Children’s Bureau, holding leadership positions as Special Assistant to the Associate Commissioner, Senior Policy Advisor on Courts and Justice and overseeing the Children’s Bureau’s work with the legal and judicial community.
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My Perspective Liliana Cory
suffered from a series of strokes that made it impossible for her to work. That combination changed her emotional stability and her ability to provide financially; the home environment became hostile. The only thing that made a difference was the community that I still gained from being adopted by my aunt. Her larger family and her children became my saving grace. My sister especially got me through my senior year into college, an achievement I thought I would never achieve. This larger family continues to support me to this day. Through my undergraduate degree, my master’s degree, my career, my homeownership, and, more recently, the death of my adoptive mother, this larger family continues to hold me in profound and vulnerable ways. Although my family story had many ups and downs, I want to make one thing very clear; families are complex. I would like to say after my adoption I lived happily ever after, however, I did not. It was a struggle, but a struggle I would continue to choose over the other options I was presented with as a child. I would choose this family over the system any day. My family is full of nuance, just as other families are full of nuance. Families, regardless of how deserving or functional we think they are, deserve dignity, humanity, and support. My parents struggled with drug addiction, but that didn’t mean they did not love me. My aunt and my mother did not get along, but that didn’t mean there wasn’t good reason. My aunt was a supportive person but was homophobic. Families are complex; this includes kinship families. Systems are designed with such a black-and-white mentality that the people who experience those systems lose their nuance and humanity by having to be a certain way. I have hope that it doesn’t have to be this way. I think states have the opportunity to learn from lived experts who come through their systems. For me, these are the key lessons I take away:
work. The community came in the form of her larger family; 12 brothers and sisters and her mother. That family quickly became my family. Even though my brother and I wanted to be placed back with our biological parents, it was comforting being a part of something bigger than our nuclear family we grew up with. Tragically, my biological mother died three months before my 13th birthday, and we were faced with a life-changing choice. My biological father decided to terminate his rights, and the state began the conversation of adoption. My aunt and my brother were thrilled with this idea. I was more hesitant for a couple of reasons: 1. I already had a mother. (One that I was grieving and didn’t get a chance to say goodbye to). 2. I didn’t have the words for it, but I knew I wasn’t exactly straight, that I was attracted to a multitude of people as my sexuality began to develop. To be clear, I love Jesus. The people in the church gave me safe sanction and offered me a profound sense of community that mourned, cried, and celebrated with me during that especially hard time of my life, but the thought always lingered in the back of my mind; what if this community knew? What if they knew I was the person they were talking about as “sinful” or as someone who was not “Christ-like.” So when I was presented with the option of being adopted or going to a group home, I chose to be adopted. I chose to hide. I had already experienced homelessness and did not want to even entertain the risk that came with “coming out” or, arguably worse, being separated from my brother. After we were adopted, that’s when a multitude of things turned for the worse. The support my brother and I received from the state decreased and was eventually halted to a stop. In addition to this, my now adoptive mother
The day I went into foster care for my third and final time was like any other. I was sitting in gym class waiting to watch the “Bill Nye the Science Guy” video on water safety when my gym teacher came over to me and said I needed to go to the principal's office. This immediately threw me off, considering I never got in trouble at school. School was my safe place, the place where I was smart, well-mannered, and had a community of people who cared about me. When I entered the principal's office, my heart completely sank when I saw the social worker. After an hour of silence and me fighting back tears, the social worker asked, “Do you have any family in the area?” I wasn’t answering the questions the social worker was asking; I was only thinking about my brother, demanding to know where he was. Finally, the social worker leveled with me and said, “The sooner I can find placement, the sooner I can get you to your brother.” With that, I caved, “Well, I have an aunt.” Being placed with my aunt was a big risk in my mind. She and my biological mother did not get along and have had a lot of tension in the past. I knew my parents would not be happy with us being placed with her. It was a complicated transition. I was fairly independent as a child, and suddenly the world that I knew before completely changed. However, one thing became very clear, my aunt cared deeply about my brother and me; she held us at night when we cried, supported us when we felt hopeless and disappointed in my parents, and most of all, she kept us even though it was difficult. She was a single mom of two, working daycare making next to peanuts, and she took on two additional children when her biological kids were leaving the house. She needed financial support and a community to help raise us. Thankfully, the state did support us. They helped with items like summer camp and childcare so she could
1. Kinship families need financial support. 2. Kinship families should be systematically respected to the same degree that foster parents are. 3. Kinship families bring community that carries through life. 4. We cannot rely on youth’s silence to keep them housed in homes that are not affirming to LGBTQ+ youth. _________________________ Liliana Cory (she/they) is passionately dedicated to the voices of those impacted by state systems. Lily is the Adolescent Programs Co-Design Manager at the Washington State Department of Children, Youth, and Families. As a foster alumna, Lily has worked directly with young people through her volunteer work as GAL in Pierce County and as a caseworker for BRS and ICWA cases.
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On The Cover Tiffany Enos, cover artist, is from Sacaton, Arizona and is a tribal member of the Gila River Indian Community. Her desire to create started when she was just a little girl. Over the years that desire started to bloom into what we see today. Her work represents her culture and desire to push the boundaries in order to grow her skills in the art field. She works full-time as a Multimedia Specialist for her community and is a mother of a beautiful girl.
Public Knowledge Joins National Campaign to Address the Harms Caused by the Adoption and Safe Families Act November 19, 2022 marked 25 years since the Adoption and Safe Families Act (ASFA) was enacted. In its lifetime, ASFA has contributed to the destruction and devaluation of hundreds of thousands of families, disproportionately Black and Indigenous families. Family Integrity & Justice Work (FIJW) at Public Knowledge ® and Children’s Rights, in partnership with the Center for the Study of Social Policy (CSSP), National Association of Counsel for Children (NACC), the Family Justice Group, and United Family Advocates (UFA), hosted events to spotlight and address the harms of ASFA. In addition, recent articles have been shared on the topic. Events • On November 2, Family Integrity & Justice Works at Public Knowledge presented a webinar entitled, "The Harm of ASFA." During the event, the speakers, panelists, and impacted families shared thoughts, replacement approaches, and real stories, respectively, to help bring awareness to the injustice and trauma that families experience under ASFA's policies. Help us continue our assault against ASFA by sharing the link to the webinar with your colleagues, peers, and networks: The Harm of ASFA • On November 15, Children’s Rights hosted a panel discussion entitled, “Terminating Parental Rights Harms Children Too. 25 Years of ASFA: Looking Back and Moving Forward.” The panel was led by advocates who personally were harmed by ASFA, the panel discussion explored how requirements under ASFA imposed ongoing harms on children and families—and strategies to move us forward in addressing them. Watch and share the event found here: Terminating Parental Rights Harms Children Too Articles • Center for the Study of Social Policy: “ASFA 25 Years Later: Time for Repeal” • Prof. Sarah Katz: “A Federal Law Has Been Destroying Families for 25 Years. Let’s Get Rid of It.” • Reason: The Adoption and Safe Families Act Takes Kids Away From Loving Parents • Josie Pickens and Alan Dettlaff: Opinion: “Repeal the Adoption and Safe Families Act” • Mical Raz: “Our Adoption Policies Have Harmed Families and Children” • Diane Redleaf: “The Adoption and Safe Families Act Takes Kids Away From Loving Parents” • Dorothy Roberts: “The Clinton-Era Adoption Law That Still Devastates Black Families Today” • Richard Wexler: “This Law Was Supposed to Protect Kids from Abuse. It Hasn't.”
“Star Child” by Artist Akil Roper, akilroperart.com
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Creating a Strong Legal Preference for Kinship Care Josh Gupta-Kagan One new to our field would be forgiven for thinking that the law must favor placing foster children with kin rather than with strangers. After all, individuals and organizations from across the ideological spectrum endorse kinship care, government publications describe kinship care as “the preferred resource” for placing children who cannot live at home with a parent 1 and, after steady increases over multiple decades, authorities now place more than one-third of all foster children with kin. 2 And decades of evidence establish that kinship care is generally more stable and serves children’s health and well-being better than living with strangers, 3 a point so well accepted that it needs no further elaboration here. 4 So, one should expect the law to strongly favor kinship care over stranger foster care. But it largely does not. Instead, the law grants child protective services (CPS) agencies wide discretion to determine whether to place foster children with kinship caregivers. As a result, any meaningful preference for kinship care over stranger foster care varies significantly by jurisdiction. Putting any preference into practice is subject to the whims of CPS agencies and the judgment of individual caseworkers and family court judges regarding specific kinship caregivers. Absent laws requiring such a meaningful preference, not every state and not every county has seen relatively higher rates of kinship placements over recent years. Even where such increases have happened, the law does not prevent a change in agency administration or agency policy from significantly impacting the kinship care rates (and our field is certainly susceptible to dramatic changes in practice following high-profile cases, even if they are outliers). And individual children, parents, and kinship caregivers who would prefer kinship care to stranger foster care are left without the powerful legal remedies they deserve when agencies use their discretion to keep children away from kinship caregivers unnecessarily. This state of the law can lead to significant harm. Consider the death of Ma’Khia Bryant, a Black foster child in Ohio shot to death by police during an incident outside her non-kinship foster home. 5 After ______________ 1 U.S. Dep’t of Health and Human Servs., Administration for Children and Families, Administration on Children, Youth, and Families, Children’s Bureau, Placement of Children with Relatives 1 (2018), https://www.childwelfare.gov/pubPDFs/ placement.pdf. 2 The federal government reports that 35 percent of all foster children on September 30, 2020 lived in a “foster family home (relative).” U.S. Dep’t of Health & Human Servs, Admin. for Children and Families, Admin. On Children, Youth and Families, Children’s Bureau, The AFCARS Report: Preliminary FY 2020 Estimates as of October 4, 2021 - No. 28 (2021), https:// www.acf.hhs.gov/sites/default/files/documents/cb/afcarsreport28.pdf. That compares, for instance, with 24 percent on September 30, 2005. U.S. Dep’t of Health & Human Servs, Admin. for Children and Families, Admin. On Children, Youth and Families, Children’s Bureau, The AFCARS Report: Preliminary FY 2005 Estimates as of September 2006 (13) (2006), https://www.acf.hhs.gov/sites/default/files/documents/cb/afcarsreport13.pdf . 3 For recent summaries of this research, see Christina McClurg Riehl & Tara Shuman, Children Placed in Kinship Care: Recommended Policy Changes to Provide Adequate Support for Kinship Families , 39 Child Legal Rts. J. 101, 104-08 (2019). 4 The point does, however, need a caveat: Those defending the widespread family separations caused by the present child protection system can rhetorically point to frequent use of kinship care as a way distract from those family separations. It is essential to recognize that when the state separates a parent and child and places the child with a kinship caregiver, it is still imposing a harmful family separation. In this context, the value of kinship care is that it is generally better than the alternative – living with strangers or in institutions – and that is the comparison on which this article focuses. 5 The facts in this paragraph are taken from the New York Times’ exhaustive account of her case. Nicholas Bogel-Burroughs, Ellen Barry & Will Wright, Ma’Khia Bryant’s Journey Through Foster Care Ended with an Officer’s Bullet , N.Y. Times (May 8, 2021), https://www.nytimes.com/2021/05/08/us/columbus-makhia-bryant-foster-care.html. For a critique of the handling of kinship care in this case and argument to “exhaust all other options” before placing a child with strangers, see Vivek Sankaran, Ma’Khia Bryant’s Story Reveals Flaws in Foster Care System, The Imprint (May 31, 2021 7:00 PM), https:// imprintnews.org/opinion/makhia-bryants-story-reveals-flaws-in-foster-care-system/54943.
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18 | FIJ Quarterly | Fall 2022
FIJ Quarterly | Fall 2022 | 19
the CPS agency removed Ma’Khia from her mother it placed her with her grandmother, where she stayed for the next 16 months. But when her grandmother’s landlord discovered Ma’Khia was there, he evicted the family. Rather than help the grandmother defend against the eviction, or help her obtain alternative family housing, or even permit the grandmother to take the children into a hotel temporarily while she sought alternative housing on her own—all steps the law might have required if it contained a strong kinship placement preference—the agency took Ma’Khia away from her grandmother and placed her with strangers. A series of short-term placements followed, ultimately leading to the turbulent final placement and Ma’Khia’s death at the hands of the police. The case did not need a deadly end to illustrate the point that the law and legal system failed to keep Ma’Khia living with her grandmother rather than a succession of strangers. Other cases appear to raise serious questions about whether all agencies truly treat kinship placements as the “preferred resource.” 6 Consider a few headlines from this past summer. In one Hawaii case, authorities chose to place a child with strangers over the child’s grandmother, who clamored for custody for shifting reasons—a desire to keep the child from living with someone who was mourning the loss of her daughter (the child’s mother), and disparaging (and subsequently retracted) statements from the grandmother’s former partner. 7 Multiple Florida families accuse agencies there of avoiding potential kinship placement, including in pending litigation. 8 A California agency's alleged failure to identify and seriously consider kinship placements has also become the subject of litigation. 9 In an Oregon case, the agency decided to move a child to kinship caregivers— but not until three years after the kin initially sought custody, with no explanation for the delay. 10 The Law Gives Agencies and Courts Wide Discretion to Decide Whether to Use Kinship Care While there is now a consensus that kinship care is generally better for children, the law in most states does not generally impose a strong preference for kinship care. Instead, agency and judicial practice has warmed to using kinship care more in some jurisdictions, without much change in the underlying law. This leaves agencies and courts with wide discretion on whether to use kinship care in individual cases and what steps—if any—to take to overcome obstacles to initiating or maintaining kinship placements. When family courts order children removed from their parents, little law governs where courts may order them placed. Federal law disfavors congregate care, 11 but there is no federal substantive ______________ 6 I thank Richard Wexler and the National Coalition for Child Protection Reform blog, which compiled news stories about the cases in this paragraph. 7 John Hill, She Took Her Fight for her Grandson Public. A Hawaii Judge Said She Went Too Far , Honolulu Civil Beat, June 23, 2022, https://www.civilbeat.org/2022/06/she-took-her-fight-for-her-grandson-public-a-hawaii-judge-said-she- went-too-far. 8 Florida now faces federal litigation over repeated alleged failure to meet existing, minimal legal requirements regarding kinship care, including by pointing to a variety of flimsy reasons for refusing to place children with particular relatives. Complaint, ABCD v. DeSantis , Case No. 4:22-cv-00222-AW-MAF (N.D. Fla. June 15, 2022), available at https://www. abcactionnews.com/news/local-news/i-team-investigates/lawsuit-dcf-accused-of-keeping-kids-from-relatives- adopting-them-to-system-connected-strangers. For a summary of some such claims, see Katie LaGrone, More families accuse DCF of keeping relatives from getting custody of young family members , ABC-WFTS (July 14, 2022), https:// www.abcactionnews.com/news/state/more-families-accuse-dcf-of-keeping-relatives-from-getting-custody-of-young- family-members. 9 See, e.g. Ishani Desai, Maternal grandfather of Cal City toddlers files claims against CPS , June 19, 2022, https://www. bakersfield.com/news/maternal-grandfather-of-cal-city-toddlers-files-claims-against-cps/article_0ca7bdfa-ef38- 11ec-af45-bb71ceaa98dc.html (describing case in which grandparent alleged county CPS agency failed to explore kinship placement before placing young siblings with strangers who allegedly murdered the children). 10 Colby Enebrad, Biological relatives of foster child speak out after protests , Central Oregon Daily News, Aug. 25, 2022, https://centraloregondaily.com/%E2%96%B6%EF%B8%8F-biological-relatives-foster-child-speak-out-after-protests/. 11 Federal funding rules now limit reimbursement for congregate care facilities by imposing a set of requirements on such facilities and procedures for placement in them. 42 U.S.C. § 672(k)(2) - (4).
provision that makes it difficult for states to place a foster child with strangers when kinship caregivers are available. Federal law requires state agencies to identify adult family members that a child is in foster care and inform them that they can seek custody, 12 a nudge in the direction of a kinship placement preference. That requirement is not always followed, 13 and even when it is, it does not actually create such a preference. Instead, federal law only requires states to “consider” giving preference to kin when determining where to place children that they separate from their parents. Even that “consideration” is further qualified—the kinship caregiver must “meet all relevant State child protection standards,” without defining what is relevant. 14 Federal law does not require states to actually place children with these family members, nor does it require states to consider such family placements before placements with strangers, nor does it require CPS agencies to work to remove obstacles to such family placements, nor does it provide for meaningful remedies if states violate the modest requirements that do exist. Some states’ statutes and case law do explicitly preference kinship placements. 15 But even where placement hierarchies exist, agencies and courts can divert from kinship preferences by asserting vague substantive standards exist, such as “good cause” 16 or “best interests,” which functionally give agencies discretion to determine whether to trigger kinship placement preferences. 17 Multiple state statutes create a kinship placement preference but only for kinship caregivers approved by the agency—effectively giving the agency power to determine whether to approve a family. 18 State laws generally do not impose any specific obligation on agencies to overcome obstacles to preserving or maintaining a kinship placement. 19 And many states simply list possible placement options with no hierarchy among them. 20 (Ohio, where the state agency removed Ma’Khia Bryant rather than help her remain with her grandmother, is among the states without a kinship placement preference.) 21 The result of these laws is to give tremendous power and discretion to CPS agencies. Judges use statutory provisions to place children in agency custody, 22 leaving agencies with wide discretion ______________ 12 42 U.S.C. 671(a)(29). 13 See, e.g., In the Matter of Richard HH. V. Saratoga county dep’t of Soc. Servs., 163 A.D.3d 1082, 1082-85 (N.Y. App. Div. 3d Dep’t 2018) (describing and admonishing family court and agency for failure to comply with this requirement). 14 The full text provides that “the State shall consider giving preference to an adult relative over a non-related caregiver when determining a placement for a child, provided that that the relative caregiver meets all relevant State child protection standards.” 42 U.S.C. § 671(a)(19). 15 E.g. Ariz. Rev. Stat. § 8-514(B) (creating “order for placement preference”); Fla. Stat. Ann. § 39.521(3) (creating placement hierarchy of parents, other kin, and agency custody); Miss. Code Ann. § 43-21-609(b) (same); Or. Rev. Stat. § 419B.192(1) (preference for kinship placement); S.C. Code § 63-7-1680(E)(1) (requiring agency placement plan to give “preference” to a kinship placement absent “good cause to the contrary”); W. Va. §49-4-604(c) (providing “sequence” of dispositional options to consider); In re J.W., 226 P.3d 873, 881 (Wyo. 2010) (finding “a compelling preference” for “placement with nuclear or extended family members”); Rev. Code of Wash. § 13.34.130(3) (requiring placement with a relative absent a risk to the “health, safety, or welfare of the child”). 16 S.C. Code § 63-7-1680(E)(1). 17 For instance, Arizona courts have ruled that family courts need not even make a best interest finding in diverting from placement hierarchies; the court need only “include placement preference in its analysis of what is in the child’s best interest.” In re Antonio P., 187 P.3d 1115, 1118 (Ariz. Ct. App. 2008). 18 For an example of weak statutory language, see Ala. Code § 38-12-2, which directs the agency to ”attempt to place the child with a relative for kinship care,” but then in the very next sentence, clarifies that such placement is contingent on the agency’s decision to grant a foster care license or not consistent with the agency’s own policies. See also Ark. Ann. Code § 9-27-303 (providing that a kinship caregiver “shall be given preferential consideration for placement,” but only if the agency determines that the kin ”meets all relevant protective standards and it is in the best interest of the child to be placed with the relative or fictive kin”); N.Y. Fam. Ct. Act § 1017(2)(a)(ii)-(iii) (creating a preference for placement with kin unless their “home . . . is found unqualified”). 19 Agencies, of course, have an obligation to make reasonable efforts to achieve a child’s permanency plan, and in some cases, that could include an obligation to overcome obstacles to make or maintain a kinship placement. 20 See, e.g., D.C. Code § 16-2320(a)(3)(A) (disposition statute which does not preference kinship placements); GA. Code Ann. § 15-11-212(a)(2) (same); Me. Rev. Stat. tit. 22 § 4036 (1) (same); Mo. Rev. Stat. § 211.181.1 (same); Mont. Code Ann. § 41-3-438(3) (same); Ohio Rev. Code Ann. § 2151.353(A) (same); Pa. Cons. Stat. § 6351(a) (same). 21 Id. 22 E.g., D.C. Code § 16-2320(a)(3)(A); Ga. Code Ann. § 15-11-212(a)(2)(B); Mo. Rev. Stat. § 211.181.1(2).
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