As National Foster Care Month kicks off, a request for foster care maintenance payments from a kinship care provider in Kentucky may be headed to the United States Supreme Court.
Previously, the Supreme Court held that foster care payments must be made to all foster care providers, regardless whether they are “regular” or kinship foster homes. It appears that many states nonetheless refuse to make these payments to kinship providers. The legal issue in the case is whether the kinship provider has a right to sue the state for the payments.
Reviewing the Kentucky case reminded me how important Pennsylvania’s compliance with federal laws regarding foster care and adoption assistance is. In Pennsylvania, the law provides that foster care payments must be made to all resource families, and does not make any distinction between kinship and other foster care providers. While the foster care rate may vary among the counties and based upon the nature of the child’s needs, the same rate is paid to all resource families.
A resource family provides foster or kinship care when a child is removed from birth parents in a dependency proceeding. Resource family placement occurs only when the child is adjudicated dependent. Extended family members as well as friends of the birth family are considered kinship resources. When placement is made voluntarily with a kinship resource, the placement may not be deemed a resource family placement because the state does not take legal custody. Children may come to live with these kinship resources for a variety of reasons that can be summarized in three broad categories.
First, alternative care arrangements can be made informally in response to a family need.
These needs range from military deployment to domestic violence and other family issues, to illness or death of the parent. Kinship caregivers may wish or need to pursue a custody order to ensure that the child has access to insurance coverage, and to assist the caretaker in exercising authority over educational and other medical decision making in a timely manner.
Second, birth parents can make advance decisions and arrangements for the care of children if they become unable to do so in the future.
This can be done through estate planning by identifying a guardian for children in their wills. That provision will only go into effect if both parents are dead, or if the remaining parent is unknown or unavailable. Parents can also identify a Standby Guardian, which authorizes the Standby Guardian to care for the children following a “triggering event” such as an illness, incapacity, or lengthy absence from home. If the other parent is unavailable, the Standby Guardian can act for up to 60 days, allowing time for a court to review a petition for formal guardianship appointment.
Third, kinship caregivers may be identified by the county child welfare agency through its family finding process.
The law requires dependent children to be placed in kinship care with familiar individuals whenever possible. Kinship resource families must complete specialized training and complete background checks just as any other foster family does.
Some state-sponsored financial resources may be available to kinship resources whether or not dependency occurs. However, there is no entitlement to foster care maintenance payments when the county child welfare agency is not involved and does not approve the home as a resource family.
Should you have any questions on this issue, or legal issues relating to your family, please consult with your legal counsel or one of the attorneys in KingSpry’s Adoption/ART Law Practice Group.
heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.
