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).
20 | FIJ Quarterly | Fall 2022
FIJ Quarterly | Fall 2022 | 21
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