to determine where foster children actually live. Absent clear laws preferring kinship care to living with strangers, CPS agencies can decide whether to license kin as kinship foster parents and place children with kinship caregivers, and when to place children with strangers instead. With this discretion, agencies can refuse to place children with kin for a variety of reasons which are subject to biases based on the family member’s race or financial status. Kinship caregivers are disproportionately poor, especially when compared with stranger foster families, 23 so the potential for bias is particularly serious. When seeking a foster care license, kinship caregivers and, in most jurisdictions, 24 all adults in their homes (including their partners, adult children, and other family members) must submit to criminal background and child protection registry checks. Agencies may view any issue, no matter how old or minor, as problematic. The racial and class disparities within the criminal justice system have a disparate impact on families of color and poor families from criminal background checks. Further, the racial and class disparities in the family regulation system—which substantiates hundreds of thousands of disproportionately Black, Indigenous, and poor parents and caregivers for the vaguely defined condition of “neglect”—have a disparate impact on families of color and poor families. These licensing rules also create the potential for unwarranted state intervention in families. Consider a situation in which a kinship caregiver’s adult child has a conviction on their record. Agencies may put the caregiver in an impossible situation, demanding that they kick out their adult child in order to be licensed to become a foster parent to a different relative. Other licensing criteria directly reflect a kinship caregiver’s financial status rather than their ability to care for the child. Such criteria include the number of bedrooms, or factors designed to guard against hypothetical safety risks, such as the presence of smoke detectors and fire extinguishers. 25 The law structures these issues as creating presumptions against agencies approving kinship placements. The default is that kinship caregivers seeking foster care licenses must meet the same licensing standards as strangers seeking to become foster parents. 26 Indeed, meeting “all relevant State child protection standards” is a pre-requisite just to trigger the weak obligation of a state to “consider” preferencing kinship placements. 27 When some negative fact appears in a family member’s licensing file—a marijuana possession conviction, an old substantiation for neglect due to an ex- partner’s violence, a necessity to put multiple children (perhaps of different sexes) in one bedroom, or the like—the agency must decide whether to grant the kinship caregiver a waiver. 28 Under this legal structure, kinship caregivers are judged on whether they meet licensing standards developed in the abstract and, if they do not, whether they deserve an exception to those standards. The law does not require kinship caregivers to be judged based on the strength of their relationship with a child or the child’s parents, nor does it require kinship caregivers be judged in comparison with the likely alternative. And nowhere does the law require agencies to help overcome obstacles to make kinship placements happen or, as Ma’Khia Bryant’s case tragically illustrates, to provide assistance to preserve kinship placements. Beyond licensing rules, once family courts remove children from parents and place them in agency custody, agencies have wide discretion in choosing placement options. And making such decisions leaves room for a range of subjective judgments about particular family members. For instance, their age (whether they be elderly or young adults), their relationship with the child’s parent who is accused of neglect or abuse, or their level of compliance with agency directives. Such decisions ______________ 23 Riehl & Shuman, supra note 3, at 109, 111. 24 The Children’s Bureau reports that 31 states require all adults in a potential kinship foster home to have a criminal background check. Placement of Children with Relatives, supra note 1, at 3. 25 E.g. D.C.M.R. tit. 29 §§ 6005.2-3, 6007.16-22. 26 42 U.S.C. § 671(a)(10)(A). 27 42 U.S.C. § 671(a)(19). 28 42 U.S.C. § 671(a)(10)(D).
Josh Gupta-Kagan
22 | FIJ Quarterly | Fall 2022
FIJ Quarterly | Fall 2022 | 23
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