FIJ Quarterly - Fall 2022 Edition

meet a significant burden of proof to ensure that a kinship placement preference is meaningful. Current law largely puts the burden on the kinship caregiver—they must show that they meet state licensing standards, or at least grants CPS agencies the discretion to determine whether to waive such standards. 35 That is, the law asks, “Why should the state place this child with this kinship caregiver?” To strengthen kinship placement preferences, the law must frame the question differently: “Why should this child not have the right to live with family members?” This burden begins with agencies’ obligations to find relatives promptly after a child enters foster care and inform them that they can seek custody. If an agency claims that no potential kinship caregivers have been identified, it should establish the efforts it made to identify such individuals. When agency efforts are lacking, courts should not hesitate to order agencies to take such steps. 36 If an agency wants to place a child with strangers rather than with a proposed kinship caregiver, the agency must prove more than some risks may exist with that kinship placement and more than simply that the agency’s licensing process did not approve the placement. No arrangement is risk- free, and the risks of any particular kinship placement must be balanced with the risks of placing children with strangers. The agency instead should have to provide some compelling evidence that the kinship placement presented an unacceptable risk to the child’s safety or emotional well-being and one that is significantly greater than placing a child with strangers. A standard like this ensures a real kinship preference, not merely a kinship preference, if agencies decide to support a kinship placement. A standard like this focuses on the essential questions of safety—not only in the abstract but in comparison with the real-world alternatives to kinship care. The Washington Supreme Court’s recent decision in In re K.W. 37 provides an example of what a meaningful kinship placement preference ought to mean and what other state courts should follow and other state legislatures should seek to codify. 38 The court recognized a preference for placing children with kinship caregivers, and made clear that agency predictions of a family member’s likelihood of passing an agency home study, or past CPS agency involvement does not suffice for overcoming a kinship placement preference. 39 That essential holding flips the current legal structure in many cases. Currently, kinship caregivers seeking foster care licenses must frequently convince agencies why they deserve a waiver from licensing standards. The meaningful kinship preference required by In re K.W. instead requires an agency or any party opposing a kinship placement to prove why any perceived problem with kinship caregivers renders living with strangers better for a child. The agency would have to establish what threat a criminal conviction for a misdemeanor or a relatively minor neglect substantiation poses to the specific child at issue. The Washington Supreme Court continued by admonishing agencies and family courts to be wary of discretionary decisions based on such factors because they will have a disproportionate impact on low-income families and families of color, 40 and family courts must review agency denials of kinship placements to ensure they are not based on factors which could serve as “proxies for race.” 41 Indeed, establishing a stronger kinship preference and a clearer standard for when agencies may place children with strangers can serve to limit the potential for racial or class bias to infect decisions. ______________ 34 Such proof should include why any possible kinship placement is impossible, not simply that one potential placement is. 35 E.g. 42 U.S.C. § 671(a)(10) & (19). 36 For a description of where the legal process failed to accomplish this at the outset of a case – leaving the matter to be corrected years later on appeal – see Matter of Richard HH, 163 A.D.3d at 1084-85. 37 504 P.3d 207 (2022). 38 In fact, the Washington legislature did recently codify a similar rule, requiring kinship placements unless a risk to the ”health, safety, or welfare of the child” existed. Rev. Code of Wash. § 13.34.130(3). 39 Id. at 221. 40 Id. at 220, 221. 41 Id. at 222.

Second, the law should further require CPS agencies to make active efforts to facilitate and maintain placements higher on the hierarchy. This includes strong efforts to identify and explore all potential kinship caregivers and to aid them in making a placement work. When obstacles arise—such as when a child’s kinship foster parent faces eviction, and thus the child faces losing a preferred placement— agencies should have to help preserve that kinship placement, as agencies failed to do in Ma’Khia Bryant’s case. Both state legislatures and Congress can enact these reforms. Some state legislatures have already enacted kinship placement preferences, 42 and other states should follow and include provisions to ensure such preferences are meaningful and difficult to overcome. Congress should remove the mushy statutory language that states must “consider” a kinship placement preference 43 and require states to impose such a preference, along with provisions to enforce it. One recently introduced federal bill illustrates modest steps towards these goals. H.R. 7416, the Promoting Permanency Through Kinship Families Act 44 includes several provisions to enforce a meaningful kinship placement preference. Agencies declining to use kinship placements in individual cases would have to “document the basis for that determination with clear and convincing evidence.” 45 Criminal and child protective registry records could not prevent licensing of kinship caregivers “in the absence of particularized information demonstrating that the caregiver poses a current safety threat to the child” or some comparable evidence. 46 States would be prohibited against discriminating against kinship caregivers on the basis of their age. 47 Agencies would be required to make reasonable efforts to maintain kinship placements unless they were either reunifying children with their parents or establish “clear and convincing evidence that remaining in the kinship placement is contrary to the welfare of the child.” 48 Third, to enforce these laws, all states must ensure a strong right to effective counsel for all parties. Note that this does not require providing counsel or standing to kin; at the placement stage, such steps would inappropriately undermine the parent-child relationship and reunification efforts. But vigorous and effective advocacy for parents and children 49 will help identify kinship caregivers and enforce these reformed laws preferencing placement with them. The federal government can further enforce such changes by making the adequacy of agency efforts a part of Child and Family Services Reviews. State agencies that fail to identify kinship resources effectively or place children with available kinship caregivers should lose federal funding; the federal government should not fund placement with strangers or in institutions when kinship caregivers are available. 50 Conclusion The law should better reflect the social science evidence showing the benefits of kinship care and the consensus within our field that kinship care is strongly preferable to stranger foster care. Current

______________ 42 Supra note 15. 43 42 U.S.C. § 671(a)(19).

44 H.R. 7416 was introduced by Rep. Karen Bass and co-sponsored by Reps. Mary Gay Scanlon, Sheila Cherfilus-McCormick, Jahana Hayes, and Brenda L. Lawrence. The full text of H.R. 7416 is available at BILLS-117hr7416ih. 45 H.R. 7416, § 3(c)(3) (2022).

46 Id. At § 4. 47 Id. At § 5. 48 Id. at § 3(c)(3) (2022).

49 The proper scope and role of lawyers for children is a topic beyond the scope of this article. For present purposes, I will note that children’s lawyers should represent what children want – which will more often be living with family members than strangers – or, for young children unable to voice a desire, their right to live with kin whenever possible. 50 Child and Family Services Reviews (CFSRs) are described in 45 C.F.R. §§ 1355.31-37 and permit the federal government to impose consequences on state agencies which fail to meet federal standards. See also Vivek S. Sankaran & Christopher Church, Easy Come, Easy Go: The Plight of Children Who Spend Less than Thirty Days in Foster Care, 19 U. PA. J.L. & SOC. CHANGE 207, 234 (2016) (describing the history, process, and function of CFSRs).

26 | FIJ Quarterly | Fall 2022

FIJ Quarterly | Fall 2022 | 27

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