leave much room for disagreement and for biases toward kinship caregivers to impact decisions. The current legal structure leaves little remedy for family members, parents, or children aggrieved by an agency’s refusal to place children with kinship caregivers. Kinship Foster Care Rates Vary Significantly By Jurisdiction Many CPS agencies might respond by asserting that they would surely never oppose a kinship placement for a frivolous reason, only for a real safety concern. Indeed, the increase in the rate of kinship foster placements shows that many agencies have become more welcoming of kinship placements. But that does not mean agencies that are generally kinship-friendly will show proper deference to potential kinship placements in every case. And it surely does not mean that every agency is kinship friendly. A striking feature of kinship care in the United States is wide variation by jurisdiction in the proportion of foster children that agencies place with kin. When local agencies follow a strong preference for kinship placement, those rates can increase to as high as two-thirds or more. 29 But no statewide rate reaches that high, and most do not come close. In 2020, statewide kinship foster placement rates ranged from seven percent of all foster placements in one state to 54 percent in another (See Figure 1). Such significant variation of kinship care rates has long been a feature of the American foster system. 30 This variation does not reflect that kinship caregivers are more or less safe in one jurisdiction or another. Kinship caregivers in Delaware and Virginia (states with the two lowest rates of kinship placement among the 50 states, DC, and Puerto Rico) are not less safe than kinship caregivers in Maryland (fifth highest). Kinship caregivers in Kentucky (ranked 49th) are not less safe than those in West Virginia (ranked first). Rather, it shows that some CPS agencies use the wide discretion the law grants them to place many more children with kin than others. 31
These dramatic variations in the frequency of kinship care illustrate the central point: despite decades of evidence demonstrating the benefits of kinship care, the law largely does not require agencies and courts to actually use kinship care. We do not have a set of laws that require agencies to value kinship placements consistently. Rather, our laws give agencies power to determine whether to pursue kinship placements, with different agencies doing so at vastly different rates. The result is wide disparities in when children can actually benefit from kinship care, including many jurisdictions where children suffer unnecessary separations from family caregivers. Legal Reforms to Strongly and Consistently Preference Kinship Care If the state must remove a child from the parents’ custody and place the child in the state’s custody, the law should impose a strong kinship placement preference consistent with the benefits of kinship care. The goals of such reforms would be to increase kinship care rates in all jurisdictions and in jurisdictions already using kinship care frequently, to provide families with the ability to challenge agency decisions about kinship care, and for the law to reflect the value of kinship care, especially as compared with placements with strangers. First, state legislatures should require agencies and courts to follow a placement hierarchy whenever a child must be removed from a parent. Other legal parents should have custody when possible, followed by other family members or fictive kin, 33 followed by stranger foster families, followed by congregate care facilities. Whenever an agency (or any other party) seeks to move down that hierarchy, the law should require it to prove why more favored options are impossible, 34 dangerous, or otherwise strongly contrary to a child’s best interest. State legislatures should require any party seeking to overcome a kinship placement preference to ______________ 29 See Judge Leonard Edwards, Relative Placement: The Best Answer for Our Foster Care System, 69 Juv. & Fam. Ct. J. 55, 59 (2018) (describing Allegheny County, Pennsylvania); Edwards supra note 3, at 7 (asserting that “[s]everal model counties have demonstrated that they can place children with relatives in over 80% of their dependency cases”). Allegheny County currently reports that the “majority placement” – “the placement setting in which a child spends greater than 50% of his/ her placement spell in a given year” – was kinship care for 65% of foster children. https://analytics.alleghenycounty. us/2021/01/07/child-welfare-placement-interactive-dashboard/ (“majority placement” tab, last visited July 25, 2022). At any point in time, about 57% of Allegheny County foster children are in kinship care. Id. (“PIT” – point in time – tab). 30 A similar range is evident, for instance, in 2011 data. U.S. Dep’t Of Health and Human Servs., Admin. For Children and Families, Admin. on Children, Youth and Families, Children’s Bureau, Report to Congress on States’ Use of Waivers of Non-Safety Licensing Standards for Relative Foster Family Homes 6-7 (2011), available at http://www.acf.hhs.gov/sites/ default/files/cb/report_ congress_statesuse.pdf. 31 Other variables beyond the scope of this article contribute to the different rates in different states. For instance, states use hidden foster care with different frequencies, and some may have low rates of formal kinship foster care but high rates of kinship care via hidden foster care. See Josh Gupta-Kagan, America’s Hidden Foster Care System, 72 Stan. L. Rev. 841 (2020). For instance, South Carolina has reported more than 2,000 children living in kinship care via the hidden foster care system, id. at 858, but only several hundred in kinship foster care (counting licensed kinship homes and court-ordered unlicensed kinship placements). E.g. S.C. Dep’t of Soc. Servs., Placement Types for Youth in Foster Care on June 30, 2020, https://dss.sc.gov/media/2534/placement-types-for-children-in-foster-care.pdf. 32 Each state’s data is available at https://www.childtrends.org/publications/state-level-data-for-understanding-child- welfare-in-the-united-states. Child Trends has helpfully created state-specific data based on state submissions to the federal government, which the U.S. Children‘s Bureau aggregates into the national AFCARS reports. See Child Trends, State-level Data Trends for Understanding Child Welfare in the United States: Companion Guide (2022), https://www. childtrends.org/wp-content/uploads/2022/02/ChildWelfareDataCompanionGuide_ChildTrends_March2022.pdf. 33 “Fictive kin” refers to individuals with a close family-like relationship to a child or the child’s parents, but who are not related biologically or through marriage or adoption. E.g., 29 D.C.M.R. § 6027.3(b). Fictive kin’s close relationship with the child or child’s parents distinguishes living with them from living with strangers in foster care. As of 2018, the U.S. Children’s Bureau reported that only 28 states defined kinship care to include fictive kin. Placement of Children with Relatives, supra note 1, at 2. States that have not done so should expand definitions of kin to include anyone with a close family-like relationship with the child or the child’s parent that pre-dates agency involvement; those relationships, not biological or legal ties, define kinship care.
Percent of foster children in relative home
Figure 1. Source: AFCARS, Child Trends, March 2022. 32
24 | FIJ Quarterly | Fall 2022
FIJ Quarterly | Fall 2022 | 25
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