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The Challenges Faced by Kinship Providers: Supporting Children’s Safety, Permanency and Well-Being Through Familial Caregivers

Hon. Robert LowenbachHon. J. Robert Lowenbach, Colorado District Court Judge (retired)

Summary: The author describes the challenges faced by kinship providers and the tools judges can use to actualize the kinship preference. 

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“The nut doesn’t fall far from the tree. We know that Mom is messed up so why would we think it is all right for this child to be placed with the person who raised her?” Although not necessarily in these disrespectful words, that is how many child welfare agency and court-attached stakeholders thought about kinship care providers during much of the time that I sat as a judge hearing dependency cases. This view rests on the assumption that it must have been the parenting of the grandparent that caused the dysfunction of the parent. While this assumption may be true, it is just as likely that another cause intervened to prevent the parent from providing a safe home for the child.

On the other hand, science tells us that a child’s relationships and the quality of those relationships will, in large measure, determine whether the child has positive or negative life outcomes. For this reason, at least 46 states express some preference for kinship placements. In addition, the Indian Child Welfare Act, the Adoption and Safe Families Act (ASFA) and, most recently, the Fostering Connections Act of 2008, provide increasingly stronger preferences for kinship care. While many reasons for the preferences can be listed, these expressions of public policy are based upon the belief that children are generally better off with kinship providers because they are able to maintain positive established relationships with siblings and other family members, as well as their community. Further, children placed with relatives are much more likely to maintain the cultural practices and connections with which they have become familiar during their childhood. (For a comprehensive treatment of this subject see Judge Leonard Edwards’ article, "Relative Placement in Child Protection Cases" (222 KB PDF), Juvenile and Family Court Journal, Spring 2010.)

While there is a myriad reasons why—and an expectation that—children placed in kinship care are more likely to achieve safety, permanency and well-being, this result is not assured. It is axiomatic that just because there is a preference for kinship care, the agency, the professionals and the judge do not abdicate their responsibility to consider and hold paramount the child’s safety in making all placement decisions as required by ASFA.

Judicial Leadership

It falls upon the judge to provide the leadership that is required to ensure that decisions about all placements are made on a child-centered, case-by-case basis. It is also critical that judges adopt policies and practices that encourage stakeholders to explore all options that may enhance the likelihood that children will achieve safety, permanency and well-being throughout their contact with the child welfare system.

Effective leadership in this area is often demonstrated through the judge’s work with collaborative best-practice teams of stakeholders who develop procedures and practices that respect the statutory preference in favor of kinship care but always keep safety as the primary consideration. Further, judicial leadership is not fully actualized unless the judge sets clear expectations for the child welfare agency and its caseworkers, as well as the legal professionals and helping agencies such as CASA programs.

Identifying Resources

One area where judicial leadership is critical is in identifying supportive services of all kinds, including supports that relatives can provide. In Colorado when a case is filed, parents are required by statute to complete an affidavit listing relatives for the potential placement of their child. This statute also requires that parents be advised of the consequences to themselves and to the child’s development if the information is not provided. Frequently, parents are reluctant to provide this information as they are often embarrassed, angry or scared at this early stage of the court process. Because of this reticence, it is essential that judges explain in easily understood words and with a problem-solving demeanor that the parent must provide the information not only for purposes of exploring possible placement but also because the information provides a means of enlisting the assistance of relatives as part of a plan that might allow the child to remain in the home. Presented in this manner, parents are less likely to withhold important information.

Other states may not have a statutory requirement or a form for collecting information about relatives. However, judges or state court improvement programs should consider the construction of such a form and should implement a procedure to ensure that the information is collected and utilized so that all available resources are identified and utilized.

Even if the parents are uncooperative, courts should ensure that the agency and other stakeholders make efforts to identify and locate relatives through programs such as family finding. Further, the child who is being placed should not be overlooked as a source of information about close connections, family or otherwise. Although it may take some time to develop the trust necessary to cause a child to share the information, children should be consulted about which connections are most important to them and which ones they view as potentially dangerous.

Providing Support for Kinship Placement

In part because the Adoption and Safe Families Act (ASFA) does not allow states to be reimbursed for payments made to kin who are not licensed under the same standards as non-relative foster homes, kinship providers are often left to support the child on the significantly less generous payments made through a TANF child-only grant. Further, studies have shown that kinship foster parents receive fewer services in general. As one might expect, these factors cause some potential kinship providers to choose not to be considered as a placement resource.

Other studies show that caseworkers supervise kinship providers less closely than children in traditional foster homes. This lack of supervision may result in concerns about safety. The judge— as the authority who oversees the process, approves placements and case plans, and makes various findings concerning reasonable efforts—is in a unique position to emphasize the need for supervision and enrich placement options for the children they see. It is therefore incumbent upon the judge to require supervision of the placement as the law requires.

Although judges often do not come into face-to-face contact with a child’s extended relatives at critical stages, by setting the tone and setting clear expectations, judges can ensure that prosecuting attorneys, caseworkers, guardians ad litem, respondent parent counsel and CASA volunteers engage in best practices that expand supportive services for children and ensure appropriate supervision. For example, at periodic reviews, judges should ask caseworkers about their contact with children who have been placed in kinship care to ensure that these homes are receiving appropriate oversight. In addition, judges should ask the professionals listed above whether potential kin providers have been contacted and whether they have been informed of the financial and other support to which they are entitled if they agree to care for their kin.

In Colorado, child welfare regulations provide specific instruction on the actions that caseworkers must take with respect to possible kinship providers when placement is being considered (12 CCR 2509-4-7.304.21). Understanding the state’s regulatory framework can assist judges in holding the agency accountable to its own rules and can result in enhanced options for children.

Summary

Children who must be removed from their parents deserve to have the child welfare agency and all stakeholders fully consider the effect that the removal has on them. The removal, while sometimes necessary, is always traumatic. There are solid reasons for the preference that states and the federal government have given to kinship care, but the full value of this preference for our children will only be realized if judges provide leadership to ensure accountability by all stakeholders. Without such leadership the promise that these preferences provide may remain just words on a page.

Editor's note: Judge Robert Lowenbach is a retired judge and is currently the judge in residence for the Colorado Court Improvement Program. In addition, he is a Child Trauma Fellow with the Child Trauma Academy,

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