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
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