FIJ Quarterly - Fall 2022 Edition

Kinship Matters: Reflections from the Bench on Preserving Children’s Right to Family Judge Edwina Richardson Mendelson

The New York State court system’s celebration of Reunification Month this June served as a great reminder to us that family preservation is, in fact, the law and that removing a child from their parent or primary caregiver must be reserved for the most extreme and egregious of threats to a child’s safety and wellbeing. We know, however, that there are times when a parent is unable to safely care for a child, even with supportive resources. In those instances, every effort should be made to have the child live with relatives and keep them connected with their family. What is Kinship Care? Many of us have engaged in some form of kinship care in our lives; having a close friend or family member care for your child when you are not able to, such as for a hospital stay or military deployment, is kinship care. “Kinship care is commonly defined as ‘the full- time care, nurturing, and protection of a child by relatives, members of their Tribe or clan, godparents, stepparents, or other adults who have a family relationship to a child.’” 1 While the formal foster care system has only in recent times focused on ensuring that children taken from their parents are placed with relatives, 2 communal childcare within an extended family unit has long been a cultural marker of family composition amongst Black and Indigenous communities in the United States. As former foster youth Marcia Hopkins explains: “[I]nformal ‘kinship’ care has been a strength for many cultures, including communities of color, throughout history. In Native American culture, kinship is broadly defined so that everyone within the

band, clan, and tribe is considered a relative and plays a supportive role in caring for community members. For Black families, child rearing by relatives has been a long- standing tradition and protective factor that was especially beneficial for Black families during slavery and often elderly relatives cared for children whose parents were sold into slavery.” 3 Kinship care was introduced as a formal part of the nationwide child welfare system only in 1978, and it wasn’t until the 1990s that kinship care was considered a specific program within foster care. 4 Even so, for states to receive federal payments for foster care and adoption assistance, federal law under title IV-E of the Social Security Act requires only that states “consider giving preference to an adult relative over a nonrelated caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant state child protection standards.” 5 Most kinship caregivers ______________ 1 Child Welfare Information Gateway, https://www., accessed August 9, 2022. 2 Mabry, Salendria, Kinship Care: The Way it Was vs. The Way it Is, Foster Care Newsletter, 2016, http://foster- the-way-it-is/#.Y0AmA3bMLrc, accessed October 5, 2022. 3 Hopkins, Marcia, Family Preservation Matters: Why Kinship Care for Black Families, Native American Families, and Other Families of Color is Critical to Preserve Culture and Restore Family Bonds, September 24, 2020, Juvenile Law Center Blog, family-preservation-matters-why-kinship-care-black- families-native-american-families-and-other, accessed on October 5, 2022. 4 Mabry, Kinship Care, supra note 2. 5 Children’s Bureau, “Placement of Children With Relatives,” Child Welfare Information Gateway, 2018, accessed on October 6, 2022 at pubPDFs/placement.pdf.

Judge Edwina Richardson Mendelson

30 | FIJ Quarterly | Fall 2022

FIJ Quarterly | Fall 2022 | 31

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