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GOVERNMENT LAW CENTER OF ALBANY LAW SCHOOL

GOVERNMENT LAW ONLINE

SUBSIDIZED GUARDIANSHIP AS A KINSHIP CARE OPTION

APRIL 2005

80 New Scotland Avenue Albany, NY 12208 www.als.edu

© Copyright 2005 Albany Law School

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SUBSIDIZED GUARDIANSHIP AS A KINSHIP CARE OPTION

Janet Kealy 2002 Edgar and Margaret Sandman Fellow

APRIL 2005

© Copyright 2005 Albany Law School

These materials are copyright by Albany Law School (ALS) on behalf of its Government Law Center or ALS licensors and may not be reproduced in whole or in part in or on any media or used for any purpose without the express, prior written permission of Albany Law School or the licensor. Neither Albany Law School, the Government Law Center or any licensor is engaged in providing legal advice by making these materials available and the materials should, therefore, not be taken as providing legal advice. All readers or users of these materials are further advised that the statutes, regulations and case law discussed or referred to in these materials are subject to and can change at any time and that these materials may not, in any event, be applicable to a specific situation under consideration. The information provided in these materials is for informational purposes only and is not intended to be, nor should it be considered to be, a substitute for legal advice rendered by a competent licensed attorney or other qualified professional. If you have any questions regarding the application of any information provided in these materials to a particular situation, you should consult a qualified attorney or seek advice from the government entity or agency responsible for administering the law applicable to the particular situation in question.

Acknowledgments I thank the trustees and the advisory board of the Government Law Center for their support of the Edgar and Margaret Sandman Fellowship Program. It was a privilege to be a Sandman Fellow. I relished the unique opportunity to spend a year in the pursuit of research and analysis of a singular legal issue that could potentially affect the lives of thousands of children and their caregivers. This fellowship also provided me with the challenge of learning policy analysis, and its counterpart, political analysis, and for this I am grateful. I thank the trustees of Albany Law School for their continued support of the Fellowship, and also Marty Silverman, Esq. =36 for founding the Fellowship. I extend my sincere appreciation to Patricia Salkin, Associate Dean and Director of the Government Law Center, for her encouragement, and to Rose Mary Bailly, Esq., Special Consultant to the Government Law Center, for her guidance and keen insight. I also thank Virginia Battige, Cathy Cournoyer, and all of the Government Law Center staff for their friendship. I would like to thank all those who graciously provided their expertise during my research on this paper. They include:

H Susan Antos, Greater Upstate Law Project, Inc. H Judith Ashton, New York State Citizens= Coalition for Children, Inc. H Ana Beltran, Generations United H Mary Bissell, The Children=s Defense Fund H Steve Christian, National Conference of State Legislatures H Judy Gallo, New York State Office of Children & Family Services H William T. Graham, New York State Office for the Aging H Jamie Greenberg, New York State Office of Children & Family Services H Professor Kathryn Katz, Albany Law School H Jennifer Miller, Cornerstone Consulting H Karen Schimke, Schuyler Center for Analysis and Advocacy H Susan B. Somers, New York State Office of Children & Family Services H Gerard Wallace, Esq. =97, Sandman Fellow 1996, Brookdale Center on

Aging H Lori Weintraub-Pferr, Staff of New York State Senator George D. Maziarz

In support of my research on this paper I worked as a legal intern at the New York State Office of Children & Family Services during the Spring of 2002. I would like to thank the following at NY OCFS for making this opportunity possible:

H Bill Baccaglini, Director, Strategic Planning and Policy Development H Janice Bibb-Jones Coordinator of Community Affairs, Office of Strategic

Planning and Policy Development H Susan B. Somers, Assistant Commissioner, Bureau of Adult Services, who

graciously served as my supervisor

During the Fall 2002 and Spring 2003 semesters I was a judicial intern in the chambers of the Hon. Paul Czajka, Columbia County Court, Surrogate=s & Family Court. I thank

Judge Czajka, and Court Attorney John C. Couch for providing me with the opportunity to observe family court week after week, because it added a deep human resonance to the policy reports that I had been immersed in during the prior months. I presented an earlier draft of this paper at a Roundtable on January 10, 2003 at the Government Law Center of Albany Law School. I would like to thank those who attended for their participation and insightful comments:

H Susan Antos, Staff Attorney, Greater Upstate Law Project, Inc. H Rose Mary Bailly, Government Law Center H DiAnn Baxley, Center on Intellectual Disabilities, State University of New York H Deborah Benson, Director of Policy, Planning & Research, New York State

Council on Children and Families H Mary Bissell, Senior Staff Attorney, Child Welfare and Mental Health Division,

The Children=s Defense Fund H Gregory Campbell, Assistant Policy Director, Federation of Protestant Welfare

Agencies H John P. Cochran, Legislative Representative, Malkin & Ross H Joseph Connors, Director, AIDS Law Project, Albany Law School H Carmen Cunningham, New York State Office for the Aging H Anne Furman, New York State Office of Children & Family Services H William T. Graham, Assistant Counsel, New York State Office for the Aging H Jamie Greenberg, Family and Children Services Specialist, New York State

Office of Children & Family Services H Jacqui Green, New York State Assembly, Program and Counsel H Thomas F. Guernsey, Dean, Albany Law School H Marty Haase, Caregiver Respite Program, Catholic Charities, Albany NY H Bobbi Hull, Special Programs Director, Orange County Office for the Aging H Kathy Kavanaugh, Caregivers Respite, Albany NY H Bettina Marlow, Staff of NY State Senator Stephen M. Saland H Lorretta C. Marshall, Program Manager, Kinship Care Resource Network,

Rochester, NY H Jennifer Miller, Cornerstone Consulting Group H Rolanda Pyle, Director, Grandparent Resource Center, NYC Department for

the Aging H William E. Redmond, Esq., Trustee/Advisory Board, Government Law Center H Brenda Reynolds, RAPP Coordinator, Cornell Cooperative Ext., Orange County H Patricia Salkin, Assistant Dean, Director, Government Law Center H Denise A. Variano, Extension Resource Educator, Cornell Cooperative Ext.,

Orange County H Gerard Wallace, Esq., Director, Grandparent Caregiver Law Center, Brookdale

Center on Aging, Hunter College H Judi West, Legislative Analyst, New York State Assembly, Program and

Counsel

I also want to thank Robyn Ginsburg =02, Sandman Fellow 2001, for her support during preparation for the roundtable, and Professor Karleen Karlson, Albany Law School, for her assistance as facilitator during the roundtable.

Government Law Center of Albany Law School

1

Executive Summary

Subsidized guardianship is a relatively new and rapidly evolving permanency

option that is being offered by 36 states. This policy seeks to provide a legal framework

and financial assistance to children being raised by non-parental caregivers who are

usually extended family members. The children =s parents are unable to raise the

children due to factors such as illness, death, abuse, neglect, alcohol and substance

abuse, or teenage pregnancy. In 2002 it was reported that the percentage of children in

the United States being raised by non-parental caregivers rose to 3.5 percent, or 2.3

million children, in 1999, from approximately 3.1 percent, or 1.8 million children, in 1997.

Often these caregivers do not wish to terminate the parental rights of the child=s

biological parents, and adoption is therefore not possible. Sometimes the kin step in to

prevent the child from becoming a ward of the state, yet the kin do not have the financial

resources to raise the child.

Subsidized guardianship is a policy that does not terminate parental rights, yet

provides a permanent living arrangement for children, and provides financial assistance,

and often supplemental social services or support services. As of April 2003, there

were 40 subsidized guardianship type programs in 36 states, including the District of

Columbia; this report includes Washington and Wisconsin, whose cash subsidy

programs resemble subsidized guardianship programs, although they are not officially

designated as such. No one state interprets subsidized guardianship the same as

another. Some states have passed legislation to define and authorize their programs,

other states have not. Subsidized guardianship programs range in size from caring

from as few as 4 children (Idaho) to as many as 13,983 (Florida). Each state has


2

drafted its own description of what subsidized guardianship is, with specific program

guidelines, utilizing specific funding streams. Each program reflects the needs and

vision of each state=s citizens and lawmakers.

Most subsidized guardianship programs prioritize placement for foster children.

After a child has been in a foster care placement for 18 months and has not been

adopted, the child can be moved by the state to another foster home, even if the original

foster home was with kin, resulting in a possible lack of stability for the child. Data,

though limited, indicates that many kinship foster care families face a variety of unique

challenges in their roles as caregivers, because unlike non-kin foster parents, kin

usually receive little if any advance preparation prior to assuming their role as

caregivers. Research has also documented that kin foster parents are on average

older, more likely to be single, more likely to have less education and lower incomes

than non-kin foster parents. They are also less likely to report being in good health. A

child leaving foster care for subsidized guardianship would no longer be a ward of the

state, yet would be provided with the legal protection of guardianship, as well as a

financial subsidy, often equal to the foster care rate.

Identifying a viable funding stream for a subsidized guardianship program is an

essential step in analyzing its feasibility. Generally, the federal government does not

reimburse states for payments states make to guardians as part of a subsidized

guardianship program. The states opting to share the cost of subsidized guardianship

have had two main options, the TANF Block grant and Title IV-E waivers. Ten states

currently utilize TANF funds for subsidized guardianship programs: California, Florida,


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Georgia, Indiana, Kentucky, Louisiana, Nevada, New Jersey, Oklahoma, and

Wisconsin.

At least six states currently have subsidized guardianship programs using the

waiver: Illinois, Maryland, Montana, New Mexico, North Carolina, and Oregon.

However, the application period for IV-E demonstration projects is now closed.

Utilizing state or local funds for subsidized guardianship is the most common funding

stream. Twenty-one states and the District of Columbia have gone this route: Alaska,

Arizona, Connecticut, Delaware, the District of Columbia, Hawaii, Idaho, Iowa, Kansas,

Massachusetts, Minnesota, Missouri, Montana, Nebraska, North Dakota, Pennsylvania,

Rhode Island, South Dakota, Utah, Washington, West Virginia, and Wyoming.

Because of the dynamic nature of subsidized guardianship policy, evolving every

day across the nation, states that have not as yet created a policy have the advantage

of reviewing their own needs against the models created by the rest of the country.

Whether a state can afford, through its budget, to create a subsidized guardianship

policy, is a matter for review; part of that review might include whether a state can afford

not to address the need for creating such a policy.


4

Introduction


option that is being offered by an increasing number of states. As of this writing,1 36

states offer some form of subsidized guardianship, up from 25 states in 1999.2

Subsidized guardianship seeks to provide a legal framework and financial assistance to

children being raised by non-parental caregivers who are usually extended family

members. In these cases the children=s parents are not able to raise their children due

to factors such as illness, death, abuse, neglect, or alcohol and substance abuse, or

teenage pregnancy.3 In 2002 it was reported that the percentage of children in the

United States being raised by caregivers who are not their parents rose to 3.5 percent,

or 2.3 million children, in 1999, form approximately 3.1 percent, or 1.8 million children, in

1997.4 Often the children are being raised by other kin, or by close family friends.

Sometimes the caregivers do not wish to terminate the parental rights of the child=s

biological parents, and, therefore, adoption is not possible. Sometimes the kin step in

to prevent the child from becoming a ward of the state, yet do not have the financial

resources necessary to raise the child.

Subsidized guardianship is a policy that does not terminate parental rights, yet

provides a permanent living arrangement for children, and provides financial assistance,

1 This paper was authored in April 2003. 2 See Amy Jantz, et al., Assessing the New Federalism, Discussion Paper No. 02-11, AThe Continuing Evolution of State Kinship Care Policies,@ at 33, The Urban Institute (Dec. 20, 2002) available at http://www.urban.org/url.cfm?ID=31057. 3 Nina Bernstein, Side Effect of Welfare Law: The NonParent Family, N.Y. TIMES, July 29, 2002, at A1. (reporting on findings of researchers that indicate that an increasing number of children are living in no parent households due to the restrictions of the new welfare law.) 4 Id. (reporting the findings of The Urban Institute.)

http://www.urban.org/url.cfm?ID=31057


5

and often supplemental social services and support services. Subsidized guardianship

is therefore a kinship care option, and one that is of particular importance to older kin

caregivers. Many kin caregivers are grandparents, often without financial resources,

and sometimes not in robust health.

This report attempts to address the concept of Subsidized Guardianship as a

kinship care option. Part I presents an overview of Kinship Care; Part II presents a

closer look at Foster Care; Part III presents an Overview of Welfare and Child Welfare

Policies including the origins of American welfare law; Part IV focuses on How

Subsidized Guardianship Fits into the Picture; Part V presents a Summary of

Subsidized Guardianship Programs Across the United States; and Part VI presents a

Conclusion to the issues presented.


6

I: Overview of Kinship Care

A look at kinship care helps to put subsidized guardianship in perspective.

Kinship care, in its broadest sense, is any living arrangement in which an adult relative

or someone else close to a child, such as a friend, neighbor, or godparent, takes

primary responsibility for rearing that child. Kinship care is not necessarily a legal

category, because it can be carried out informally, without benefit of legal sanction or

protection, or it can be carried out formally, with legal designations such as legal

custody, guardianship and adoption. Most kinship care arrangements are private, with

kin supporting the children from their private means, and without involvement from the

child welfare system.5

Kin caregivers often jump in to help children whose parents can no longer take

care of them, whether because of the challenges presented by illness, teen pregnancy,

homelessness, death, incarceration, neglect or abuse. Kin caregivers frequently help

without being asked, and often without knowing the legal or financial ramifications of

their decision to help.

A. Kinship Care is a Growing Phenomenon

While the phenomenon of relatives other than birth parents raising children is

nothing new, over the last 25 years the number of children raised by someone other

than a parent has sharply increased. ASince 1990, the greatest increase has been in

5 Jacob Leos-Urbel, et al., State Policies for Assessing and Supporting Kinship Foster Parents, The Urban Institute (1999) available at http://www.urban.org/url.cfm?ID=409609; see also Rob Geen, et al., On Their Own Terms: Supporting Kinship Care Outside of TANF and Foster Care, prepared for Asst. Sec=y For Planning and Evaluations (ASPE), U.S. Dept. of Health and Human Services (HHS), The Urban Institute (Sept. 2001) available at http://aspe.hhs.gov/hsp/kincare01/index.htm.


7

grandparentnheaded households without either parent present. The number of these

families increased by 53 percent between 1990 and 1998 (U.S. Bureau of the Census,

1998 Current Population Survey).@6 The 2000 U.S. Census reveals that there are

currently 6 million children in the United States today who are living in grandparent, or

other relativenmaintained households, with or without parents present. That translates

into 1 in 12 children. As of January 2002, Ait had not yet been determined how many of

those children are being cared for without parents present in the home.@ However, the

March 2000 Current Population Survey revealed that of 5.5 million children living in

grandparentn or other relativenmaintained households, 2.1 million were being raised

solely by their grandparents or other relatives with no parents present.7

In New York State 412,000 grandparents are living in households with one or

more of their own grandchildren under the age of 18. 143,014 of these grandparents

are the primary caregivers of these grandchildren.8

The average cost of raising a child is the United States is $785 a month. Most

grandparents raising grandchildren have not planned for this expense. 9

1. Characteristics of Kinship Care in the United States10

6 Introduction to Issue of Grandparents and Other Relatives Raising Children, Generations United, available at http://www.gu.org/projg&ointro.htm (last modified Jan.17, 2002, visited Mar.1, 2002); see also National Center for Resource Family Support, http://research.aarp.org/general/kinship_care.html (visited Feb. 9, 2003) summaries on each state's relative caregiver data). 7 Ana Beltran, Generations United; see also State Fact Sheet (Aug. 2002) Child Welfare League of America, available at http://www.cwla.org/advocacy/statefactsheets/statefactsheets02.htm (based on 2000 U.S. Census Bureau Table DP-2). 8 State Fact Sheet, supra note 7. 9 Patricia Sabga, Grandparents Take Over For Parents, NBC Nightly News, Aug. 5, 2002. 10 See Jim Mayfield, et al., Kinship Care in Washington State: Prevalence, Policy, and Needs, at 12, Washington State Institute for Public Policy, (June 2002) available at http://www.wsipp.wa.gov/childfamily/pdf/KinshipCareWA.pdf (visited Dec. 30, 2003) (citing Harden,


8

_ Approximately 2/3 of kinship caregivers are grandparents.11_ Over 75% of

kinship caregivers are women.12_ Kinship caregivers tend to be older than

the average parent: approximately one-quarter are over the age of 60.13

As a result, kinship caregivers are more likely to have health-related

problems than most parents.

_ Nearly 40% of kinship families live below the federal poverty level

compared with 20% of families overall.14

_ 42% of kinship caregivers have not completed high school, compared with

15% of parents.15

_ Children usually enter kinship care because of the parents= alcohol or drug

abuse, physical abuse, neglect, or a combination of the three.

Consequently, children in kinship care tend to experience more emotional

and behavioral difficulties than most children.16

AFormal and Informal Kinship Care@, available at http://aspe.hhs.gov/hsp/cyp/kincare/toc.htm.); Kathleen M. Roe and Meredith Minkler, Grandparents Raising Grandchildren: Challenges and Responses, Generations 26 (Winter 1998-1999); U.S. Department of Health and Human Services, AReport to Congress@ 33n35; Harden, Formal and Informal Kinship Care, available at http://aspe.hhs.gov/hsp/cyp/kincare/toc.htm; Amy Billing, et al., Children Cared for by Relatives: What Do We Know About Their Well-Being?, The Urban Institute, (May 2002) available at http://www.urban.org/url.cfm?ID=310486. 11 See GrandsPlace web site, available at http://www.grandsplace.com (2000 U.S. census figures on grandparents raising grandchildren) (visited Apr. 6, 2003); see also National Committee of Grandparents for Children's Rights, Inc., available at http://www.grandparentsforchildren.org/logo.htm (visited Feb. 8, 2003)(information on grandparents as caregivers, from the stakeholders' point of view). 12 Kathleen Rowe and Meredith Minkler, Grandparents Raising Grandchildren: Challenges and Responses, Generations 26 (Winter 1998-1999). 13 Report to Congress on Kinship Foster Care, U.S. Department of Health and Human Services, Administration for Children and Families, Children=s Bureau, June 2000 at 35, available at http://aspe.hhs.gov/hsp/kinr2c00/ (visited Dec. 30, 2003). 14 Harden, supra note 10, at http://aspe.hhs.gov/hsp/cyp/kincare/t1-5.htm (visited Dec. 31, 2003). 15 Harden, supra note 10, at http://aspe.hhs.gov/hsp/cyp/kincare/fig1_9.gif (visited Dec. 31, 2003). 16 Billing, supra note 10.


9

_ Kinship care is most common among African-American families:

approximately 7% of African-American children in the United States live

with relatives compared with nearly 3% of children overall. Native

Americans have the second highest rate, with over 5 percent living with

kin.17

17 Mayfield, supra note 10 (citing U.S. Census Survey of Income and Program Participation, AInternet Table 1. detailed Living Arrangements of Children by Race and Hispanic Origin, 1996@ available at http://www.census.gov/population/socdemo/child/p70-74/tab01.pdf (visited Jan. 30, 2004)).


10

2. Overview of the Children in Kinship Care18

_ 44% are teens

_ 35% are school age

_ 21% are age 5 or younger

_ 44% are black non-Hispanic

_ 38% are white non-Hispanic

_ 15% are Hispanic

_ 3% are another ethnicity

_ 48% are female

_ 46% live with a caregiver over age 50

_ 90% live with a caregiver who is female

_ 57% of children are cared for by a grandparent

_ 22% are cared for by aunts and uncles

_ 36% of children live in low-income working families

_ 45% live with a caregiver who has a condition limiting their mental or

physical abilities or is in poor health

_ 20% of the children in kinship care either has a limiting condition or is in

poor health

_ 11% of 6 to 17 year old children in kinship care show high levels of

behavioral or emotional problems.


11

Often when kin step in to help a child in need, the kin are not aware of the range of

care options available, and how these categories will impact their caregiving role. The

two main areas where caregivers need information and support are Financial

Information and Legal Information.

1) Financial. Most kin caregivers are already stretched thin financially, they since

tend to be older, and many are retired and living on fixed incomes. Additionally,

the children who come to them often arrive with financial need.

2) Legal. Many kin caregivers, even those without financial need, are not aware of

the legal implications of various caregiving designations.

B. Impact of Poverty

Since most children in kinship care live in families experiencing financial

hardship, statistics from the Census Bureau, reported on September 24, 2002,

concerning the poverty level in the U.S. are of interest. The Census Bureau reported

that Athe proportion of Americans living in poverty rose significantly@ in 2001 Aincreasing

for the first time in eight yearsY.At the same time, the bureau said that the income of

middle-class households fell for the first time since the last recession ended, in 1991.@19

1.3 million people joined the ranks of the poor in 2001. In 2001 a family of four was

classified as poor if it had cash income less than $18,104; a family of three $14,128;

$11,569 for a married couple; $9,039 for an individual.20 In 2001, of the 32.9 million

18 Jennifer Ehrle and Rob Geen, Children Cared for by Relatives: What Services Do They Need?, New Federalism: National Survey of America=s Families, The Urban Institute, Series B, No. B-47 (June 2002). 19 Robert Pear, Number of People Living in Poverty Increases in U.S.: Census Bureau Finding, N.Y. TIMES, Sept. 25, 2002, at A1; see also The Children's Defense Fund, available at http://www.childrensdefense.org/data/childreninthestates/default.asp (a state by state breakdown of information relating to child poverty, hunger child care, education, child welfare, child health, and youth at risk) (visited Feb. 8, 2003). 20 Pear, supra note 19, at A1.


12

poor people in the United States, 11.7 million were under 18, and 3.4 million were 65 or

older. Poverty rates for children, 16.3 percent, and the elderly, 10.1 percent, were

virtually unchanged from 2000. The poverty rate for people 18 to 64 rose a half

percentage point, to 10.1 percent.21 In New York the gap between rich and poor grew

during the 1990=s, according to an analysis of data released by the Census Bureau in

August 2002. The disparity grew by 5.2 percent between 1989 and 1999. Some of the

greatest disparities statewide were in the New York City metropolitan area. The drop in

median income in New York City appears to be traceable in large part to immigration,

according to census data.22The poverty rate for the suburbs rose to 8.2 percent in 2001,

from 7.8 percent in 2000. That translates to 12 million poor in suburbs, an increase of

700,000 people. There was virtually no change in the rates in central cities (16.5

percent) and outside metropolitan areas (14.2 percent). This increase in the poverty

rate will most probably have an effect on kinship care.

C. Overview of Kinship Care Options

A brief discussion of kinship care options is helpful in understanding the challenges

of these caregivers.

1. Informal Care

Informal kinship care is a living situation where kin simply have the child live with

her or him, without benefit of a legal relationship. Problems arise when the kin attempt

21 Id. at A19. 22 Janny Scott, Immigration Cut Into Income In New York, Census Finds, N.Y. TIMES, Aug. 6, 2002, at A1; see also The Associated Press, Gap Between Rich and Poor Grows Statewide, REGISTER-STAR, Aug. 6, 2002, at A5.


13

to obtain the child=s birth certificate, or register the child for school, or add the child to

the kin=s health insurance. Without securing a legal designation such as custody,

guardianship, foster care or adoption, these mundane tasks become major challenges.

Some kin are hesitant to pursue formal care because of unfamiliarity with the legal

establishment, expense of legal fees, or concern that the parents of the child will be

resentful. Some kin believe that a legal designation is unnecessary because they are

family.

2. Formal Care

Formal care, brought about when a court order is obtained for the care being

provided to the child, can be arranged with the help of a private attorney, a family court

judge, or the county child welfare agency, depending upon the circumstances.

3. Custody

Custody of a child includes both physical and legal custody.

a. Physical Custody

A caregiver who is caring for a child in his or her home has physical custody.

b. Legal Custody

Unless the relative who is caring for the child also has legal custody, the parents

can reclaim physical custody of the child at any time, with or without the court=s

knowledge. A judge may grant legal custody of a child to a relative or other party. An

order of custody may be granted either when the parents consent to the arrangement,

or when a family court judge finds that extraordinary circumstances exist and the

custody arrangement is in the best interests of the child. Examples of extraordinary

circumstances are abandonment, neglect or other circumstances harmful to the well


14

being of the child. Once legal custody is granted, the child=s parents must go to court if

they wish to have their children returned to them.

4. Guardianship

Guardianship is a term used to describe a legal relationship between a child and

an adult other than a child=s parents. Legal guardians have a duty to care for and

protect the children in their care, while parents retain a duty to support their children and

may have visitation rights. Establishing guardianship does not require termination of

parental rights, and can be granted with or without the parent=s consent.

5. Foster Care

Foster care refers to those situations in which a child is separated from his or her

parents because the parents cannot take care of the child or have maltreated the child;

in New York, legal custody of the child is granted to the county social services

commissioner. The child is placed in a licensed foster home, group home, or residential

treatment facility. In foster care, each child is assigned a caseworker who monitors the

child=s care and who plans with family members to reunite the child with the child=s

parents or to arrange for a permanent home for the child outside of the foster care

system. In foster care the child=s providers receive payment for the food, clothing and

shelter of the child. A child=s eligibility ends at age 21.

6. Kinship Foster Care

In New York State, a relative of a child placed in foster care may sometimes become

the foster parent of the child, if the relative is within three degrees of separation from the

minor, such as grandparents, brothers and sisters, aunts and uncles. Generally, the

county social services commissioner may place a child in a kinship foster home if the


15

relative is identified when the placement becomes necessary. A child not placed in a

relative foster home can be moved to a relative foster home at a later point, but only if

such movement is determined to be in the child=s best interests.

Children in kinship foster homes receive ongoing casework supervision and

planning, much as any child placed in foster care would. Kinship foster parents are

responsible for providing the foster children in their care with food, clothing, and shelter.

The kinship foster parent receives a stipend to cover the board and maintenance costs

of caring for the child as long as he or she remains in foster care.

7. Adoption

Adoption is the most permanent alternative for children who cannot return home. In

order for an adoption to take place, all parental rights must be terminated, which is

usually done through family court. Adoptive parents have the right to make all decisions

on behalf of the child. Most foster children who exit the system through adoption

receive ongoing maintenance subsidies and medical assistance. Adoption subsidies

are available for special needs foster children. Adoption also secures access to

benefits such as health insurance, social security benefits and inheritance, through the

adoptive parents.

A disadvantage to adoption is the potential loss of some forms of financial

assistance. For example, if the caregiver has been receiving a Temporary Assistance

for Needy Families (TANF) or "child-only" grant on behalf of the child, that payment will

cease because the caregiver has become the "parent" and cannot qualify for this type of

grant.23

23 Legal Options, Generations United, available at http://www.gu.org/projg&olegal.htm. (last visited on July


16

II: Foster Care

Foster Care is an important part of the kinship care discussion and a closer look

at this permanency option is helpful in understanding the role of subsidized

guardianship.24

A. Number of Children in Foster Care

� In 1985, 276,000 children were in foster care across the United States,

according to the American Bar Association=s 2001 report America=s

Children: Still at Risk

� By 1996 that number had climbed to 502,000. 25

� By April 2001 that number had moved up to 588,000 children, according

to the U.S. Department of Health & Human Services.

B. Cost of Federal Foster Care

The federal foster care system is costly--expenditures continue to rise: up 610 %

between 1984 and 1996.26 In Fiscal Y ear 1999, the federal government estimates that

it spent approximately $4 billion for the Foster Care Maintenance Program.27

22, 2002). 24 Judith Areen, Intervention Between Parent and Child: A Reappraisal of the State's Role in Child Neglect and Abuse Cases, 63 Geo. L.J. 887, 903, (1975). Areen refers to R. McCrea, THE HUMAN MOVEMENT 135 (1910)(commenting that in 1874 the first state intervention to protect a child from parental abuse occurred when Mary Ellen Wilson, an eight year old girl, was rescued through the efforts of the newly formed New York Society for the Prevention of Cruelty to Animals which argued that children were members of the animal kingdom. Months later the first Society for the Prevention of Cruelty to Children was formed in New York City, by Elbridge Gerry, the lawyer who had argued for Mary Wilson); see also Nina Bernstein, THE LOST CHILDREN OF WILDER: THE EPIC STRUGGLE TO CHANGE FOSTER CARE (2001) (providing an inndepth and fascinating account of foster care in New York City that is relevant to a discussion of foster care in other geographic areas); Foster Care Report Cards, available at http://www.childwelfare.com/fostercare_report_cards.htm (a state by state analysis of foster care across the United States) (visited June 6, 2002). 25 America=s Children: Still at Risk, American Bar Association Steering Committee on the Unmet Legal Needs of Children 225 (2001). 26 Id.


17

C. The Growth of Kinship Foster Care

Of the 588,000 children in formal foster care in the United States as of April

2001, approximately 145,150 of these children were in kinship foster care, that is, in

placements with grandparents and other relatives.28

Several factors have contributed to the growth in kinship foster care:29

a. The number of children requiring placement outside the home has increased,

yet the number of non-kin foster parents has declined.

b. Also, child welfare agencies have developed a more positive attitude toward

the use of kin as foster parents and a number of federal and state court rulings have

recognized the rights of relatives to acts as foster parents and to be compensated

financially for doing so.30

The U.S. Supreme Court, in Miller v. Youakim (1979) found that relatives are

entitled to receive the same federal foster care benefits as those received by non-

relative foster parents providing that the kinship placements are eligible for federal

reimbursement under the AFDC-Foster Care Program which is Title IV-E of the Social

Security Act. The Child must be in the legal custody of the state.31

27 Rutledge Q. Hutson, Red Flags: Research Raises Concerns About the Impact of AWelfare Reform@ on Child Maltreatment@ at vii-viii, Appendix II, Center for Law and Social Policy, Oct. 2001 (citing Committee on Ways and Means, U.S. House of Representatives, 2000 Green Book). 28 See Report to the Congress on Kinship Foster Care, U.S. Department of Health & Human Services, Administration for Children and Families, Administration on Children, Youth and Families Children's Bureau, June 2000, available at http://aspe.hhs.gov/hsp/kinr2c00/index.htm (visited Feb. 20, 2002). 29 Id. 30 Jacob Leos-Urbel, et al., State Policies for Assessing and Supporting Kinship Foster Parents 2-3, The Urban Institute (1999). 31 440 U.S. 125 (1979).


18

The extended family has long played a role in caring for children whose parents

were unable to do so, however child welfare agencies= reliance on kin to act as foster

parents is relatively new.

This increase, in addition to the high cost of foster care, averaging $6,000 per

child in 1996 according to the Urban Institute, motivated policymakers to look closely at

kinship care.32 The 1996 welfare reform act officially encouraged states to give first

priority to relatives, in providing care for foster children.

D. Kinship Foster Caregivers

Data, though limited, indicates that many kinship foster care families face a

variety of unique challenges in their roles as caregivers. AUnlike non-kin foster parents,

kin usually receive little if any advance preparation in assuming their role as caregivers.

Research has also documented that kin foster parents are on average older, more

likely to be single, and more likely to have less education and lower incomes than non-

kin foster parents. They are also less likely to report being in good health.@33

32 Shelley Waters Boots and Rob Geen, Family Care or Foster Care? How State Policies Affect Kinship Caregivers, Number A-34 in Series, ANew Federalism: Issues and Options for States,@ The Urban Institute (1999) (citing Rob Geen, et al., THE COST OF PROTECTING VULNERABLE CHILDREN: UNDERSTANDING THE COMPLEXITIES OF FEDERAL, STATE, AND LOCAL CHILD WELFARE SPENDING (1999)). 33 Jacob Leos-Urbel, et al., State Policies for Assessing and Supporting Kinship Foster Parents 5-6, The Urban Institute (1999), available at http://www.urban.org/url.cfm?ID=409609.


19

Additionally, when the child is first being removed from the parents, not all kin are

told that kin are entitled to apply for foster status for the children. Kin often take in the

children out of love, and are unaware that foster care subsidies could have been made

available. Of course, being foster certified is not a simple matter. Kin often do not want

the intrusion into their lives of case workers measuring bedrooms, and asking detailed

personal information. And, of course, as a foster kin child, the child is still a ward of the

state, and the kin must have interaction with social services for many mundane tasks of

childcareCguardian permission slips for school trips, birth certificates to sign up for

school, permission slips for health care, etc. As a foster kin child, the child can still be

removed from the kin placement, as the child is a ward of the state. The state can

arrange for an adoption of the child and remove the child from the kin foster placement.

Why bother to place a child who is in need of permanency in a foster kinship

situation? Despite the imperfections of the situation, foster kinship can provide a

continued link with family, and less emotional upset. AMany experts suggest that these

placements are less traumatic and disruptive for children than placements with non-kin.

In addition, kinship care children may maintain a stronger connection with siblings, birth

parents, and their community. Prior research has also shown that children in kinship

foster care are much less likely than children in non-kin foster care to experience

multiple placements. However, while kinship foster care placements are very stable,

children remain in them for relatively long periods of time, are less likely to be reunified

with their parents and are less likely to be adopted by their caregivers, compared with

children in non-kin foster care placements.@34

34 Id.


20

III: Overview of Welfare and Child Welfare Policies

Because the type of financial assistance available to kinship caregivers is

regulated by federal policy, a brief overview of federal welfare policy and child welfare

policy is necessary.

A. Origins: Elizabethan Poor Laws

In the United States the beginning of federal welfare law dates back only to

1935, when the Social Security Act was passed35, but that is not the date of the origin of

government support of the poor. Before 1935 states followed their own policies which

had evolved from the English Poor Laws of the sixteenth and seventeenth centuries,

brought to these shores by the colonists.36

These laws provided for almshouses and indentured servitude for the poor,

including children.37 A child who was indentured was said to be Abound out,@ and

impoverished children who were too young to be bound out were either maintained in

their own homes at public expense, or boarded out to private families, also at public

expense, in a system called Aoutdoor relief.@38 The reasoning behind removal of a child

from impoverished parents was not based on maltreatment, but based on the fact that

the family was simply poor.39 Thrifty New Englanders created a variation on boarding

35 Martha R. Burt, et al., The Social Safety Net at the Beginning of Federal Welfare Reform: Organization of and Access to Social Services for Low-Income Families, Assessing the New Federalism Occasional Paper No. 34, The Urban Institute (2000) available at http://www.urban.org (last visited Dec. 18, 2003). 36 Judith Areen, Baby M. Reconsidered, 76 Geo. L.J. 1741,1743 (June 1988). 37 Brief History of Child Welfare in America, available at http://www.childabuse.net/usachildwelfarehistory.html. 38 Judith Areen, Intervention Between Parent and Child: A Reappraisal of the State=s Role in Child Neglect and Abuse Cases, 63 Geo. L.J. at 902. 39 Id. at 899 (citing H. Folks, THE CARE OF DESTITUTE, NEGLECTED AND DELINQUENT CHILDREN 167-68 (reprint) 1970).


21

out called Avendue@, where town authorities auctioned off local poor to the lowest

bidders. The winning bid represented what the bidder would charge the state for

boarding the poor.40 Indenture was a widely used method of caring for neglected

children prior to and during the nineteenth century, with terms supposedly lasting from

three to five years, yet often lasting far longer, especially if the child was placed in

infancy.41 Over time, the minimum age for binding out increased, due perhaps either to

a growing recognition of the needs of children or increasing availability of adults for

labor due to the spread of slavery.42

At the beginning of the nineteenth century the outdoor relief system came under

attack, with legislators in Massachusetts complaining of parents who were chiselers and

loafers; outdoor relief was gradually replaced by almshouses, which were thought to be

more economical especially if they provided work opportunities.43 In 1824, New York

established the first system of county poorhouses in the United States44 and within ten

years fifty counties had built poorhouses in New York.45 However, as children and

adults commingled in the almshouses, the children picked up Abad attitudes@ from the

adults, thereby stymieing the goals of the reformers.46 Criticisms of the almshouses

resulted in another reform, the establishment of separate facilities for children. One of

40 Id. at 902 (citing A. Marvin, HISTORY OF WINCHENDON MASSACHUSETTS 267-68 (1868) (Avendue@ literally means Asale@ in French, and the practice was sometimes referred to as Aselling the poor.@). 41 Id. at 902 (citing 1 CHILDREN AND YOUTH IN AMERICA 103, 104 (R. Bremmer ed. 1970)). 42 Id. at 902. 43 Id. at 904(citing Report of the Massachusetts Committee on the Pauper Laws (1821), reprinted in Public Welfare Administration of the United States 34 (S. Breckenridge ed. 1970)). 44 Id. at 904 (citing ch. 331, [1824] N.Y. Laws 47th Sess. 384). 45 Id. at 904 (citing M. Branscombe, THE COURT AND THE POOR LAWS IN NEW YORK STATE 1784-1929, at 30-31, 35-36 (1943)). 46 Id. at 905 (citing Letchworth, REPORT ON PAUPER AND DESTITUTE CHILDREN, as quoted in 2 G. Abbott, 1 THE CHILD AND THE STATE at 70-71 (1938)). ALetchworth described one group of adults with whom children were intermingled as follows: >Here was an insane woman raving and uttering gibberings, a half crazy man was sardonically grinning, and an overgrown idiotic boy of malicious disposition was teasing, I might


22

the first states to respond was New York with its creation of a children=s facility on

Randall=s Island in 1848.47 Charles Loring Brace, an early critic of institutional care

created the Children=s Aid Society in 1830 in New York to place children in need with

families out West, believing that life in the West, with an intact family, was better

preparation for life than a childhood in the slums of New York with a needy family.48

However, the geographic distance of the placements created a barrier to family

reunification, the society provided no supervision after placement, and the society did

not guarantee that the children and the new families were matched by religion; the

placements were controversial and some states passed laws barring unapproved

interstate placements.49

say torturing, one of the little boys. There were several others adults of low types of humanity.=@ Id. 47 Id. at 905. 48 Id. at 906 (citing PROCEEDINGS OF THE CONFERENCE OF CHARITIES HELD IN CONNECTION WITH THE GENERAL MEETING OF THE AMERICAN SOCIAL SCIENCE ASSOCIATION (1875), reprinted in 2 G. Abbott at 371-78). 49 Id. at 906.


23

In 1875 New York codified its opposition to the almshouse care of children, and

authorized local communities to either subsidize private childcare agencies or to

develop a new system of public institutions.50 The subsidy system was widely

preferred, leading to the establishment of many flourishing private institutions. Other

states made variations on the New York planCOhio established orphanages, Michigan

established a state school for dependent children which was given the power to bind out

children, and a local option to establish separate institutions for children.51

Massachusetts instead authorized local officials, and if they did not succeed, state

officials, to place out children in the first scaled foster care program.52 However, as late

as 1923, Massachusetts had more children still in almshouses than did any other

state.53

B. 1935: Aid to Families with Dependent Children

When the Great Depression began in 1929, most Americans experienced hardship.

The poor faced greater deprivations, as sources of public and private assistance dried

up. In the face of such need, Congress passed the 1935 Social Security Act. The

program known today as Social Security was just one of several programs included in

the Act; the other programs provided for funds for the States to assist persons who were

children, or destitute elderly, or blind. Although many states had such programs, often

the descendents of outdoor relief, they usually required local governments to provide

50 Id. at 907 (citing ch. 173 '' 1, 2 [1875] N.Y. Laws 150). 51 Id. at 907-908 (citing H. Folks, THE CARE OF DESTITUTE, NEGLECTED AND DELINQUENT CHILDREN at 82-102 (reprint 1970) and 2 G. Abbott at 12-14). 52 Id. at 907-908 (citing H. Folks, THE CARE OF DESTITUTE, NEGLECTED AND DELINQUENT CHILDREN at 73-74 (reprint 1970)). 53 Id. at 908 (noting that AIn 1923 Massachusetts still had 367 children in almshouses; New York, by contrast, had only 16.@ ) U.S. Bureau of the Census, Paupers in Almshouses Table 61, at 50 (1923), reprinted in 2. Abbott at 12 n.2.


24

relief and the local governments, in turn, relied on local property taxes to fund the relief.

However, during the depression, many banks failed, mortgages were lost, and property

taxes went unpaid. Consequently, local resources to aid the poor were stretched thin.54

Federal assistance to the states to help states provide support for children was

contained in Title IV of the Social Security Act. Participation by any state was voluntary

and to participate, a state had to submit a plan for approval by federal administrators.

Most states had great need and by 1939 only eight states did not participate.55 The

original title of the program was Aid to Dependent Children; the stated purpose of Title

IV was to provide financial assistance to needy dependent children who must live with a

parent or other close relative to be eligible for federal aid. By 1950 the federal

government began to share in the maintenance costs of a caretaker relative; in 1962 the

name of the program was changed to Aid to Families with Dependent Children.56

The program was structured with an open-ended appropriation, that is, instead of

appropriating a fixed amount of money for each year to be divided among the states,

Congress authorized reimbursement of a portion of state expenditures without a ceiling

on the total amount. This structure stayed in place until passage of the Temporary

Assistance to Needy Families Act (TANF) in August 1996.57

Payments for foster care for AFDC-eligible children were authorized by Congress in

1962 in response to the HEW Secretary=s ruling that states could no longer deny AFDC

to a needy child based on a determination of Aunsuitable@ home conditions. Instead the

54 A Brief History of the AFDC Program, Aid to Families with Dependent Children: The Baseline, Human Services Policy, June 1998, Office of the Assistant Secretary for Planning & Evaluation, Dept. of Health & Human Services USA, at 1, available at http://aspe.hhs.gov/hsp/afdc/baseline/1history.pdf (last visited July 25, 2002). 55 Id. at 1.


25

state was to Acontinue aid to the child while making arrangements for the child to live

elsewhere.@58

C. 1980: The Adoption Assistance and Child Welfare Act of 1980

The Adoption Assistance and Child Welfare Act of 198059, an amendment of the

Social Security Act, created with Title IV-E was intended to create a comprehensive

structure for foster care that would protect children in foster care and prevent Afoster

care drift.@60 AFoster care drift@ occurs when a child in foster care moves from

placement to placement without finding permanency either through reunification with his

or her parents or through adoption. 61 Permanency, a cornerstone of American child

welfare policy, means that a Achild has a safe, stable custodial environment in which to

grow up, and a life-long relationship with a nurturing caregiver.@62

The Child Welfare Act introduced the concept of permanency planning and was the

first Federal statute to discourage excessive reliance on foster care placement. The act

promoted Agreater use of services to assist and rehabilitate families, preventing out of

home placements,@ and also Aincorporated specified time frames for decision-making for

children and families.@63

56 Id. at 4. 57 Id. at 5. 58 Id. at 8. 59 Pub. L. No. 96-272, 94 Stat. 500 (codified as amended in scattered sections of 42 U.S.C.) 60 Barbara L. Atwell, A Lost Generation: The Battle for Private Enforcement of the Adoption Assistance and Child Welfare Act of 1980, 60 U. Cin. L. Rev. 593, 596 (1992). 61 Foster Care Review: Past and Present, Helping Systems Work for Children, available at http://www.Nafcr.org/docs/foster_care_review.pdf. 62 Permanency for Children, Adoption 2002: Guidelines for Public Policy and State Legislation Governing Permanence for Children, New York State Citizens Coalition for Children, Inc., available at http://www.nysccc.org/linkfamily/legal/Permansupports.htm (last visited July 29, 2002). 63 Id.


26

Prior to this act, Title IV-A of the Social Security Act provided states with AFDC

funds to children in foster care, but not for adoption.64 ABecause of this financial

disincentive for states to take children out of foster care and place them for adoption,

children often lingered in foster care.@65

D. 1993: The Family Preservation and Family Support Services Program

Established in 1993 and amended in 1997, The Family Preservation and Family

Support Services Program focused mainly on the front-end of the child welfare system

by providing additional funding for preventive services and crisis services for children

and families at risk. 66 AThe law also created the Court Improvement Program, and

provided resources to state courts for the first time, to ensure that courts were

responding to the needs of children in foster care. In effect, this legislation highlighted

family services and prevention as a national priority, and provided opportunities for state

agencies and courts to plan child welfare reforms.@67

E. 1994: Multiethnic Placement Act

1996: Interethnic Placement Provisions

The Multiethnic Placement Act (MEPA),68 enacted in 1994, outlawed discriminatory

practices by forbidding the delay or denial of a foster or adoptive placement solely on

the basis of the race, color or national origin of the prospective foster parent, adoptive

parent or child. MEPA also compels states to make diligent efforts to recruit and keep

64Brief History of Federal Child Welfare Financing Legislation, Child Welfare League of America, available at http://www.cwla.org/advocacy/ (last visited Dec. 18, 2003). 65 See Atwell at 598-599 (citing 42 U.S.C.A. Sections 601-617 (West 1988 & Supp. 1991))(ATitle IV-A sets forth requirements for Aid to Families with Dependent Children."). 66 P.L. 103-66. 67 Permanency for Children, supra note 62. 68 P.L. 103-382.


27

foster and adoptive families reflective of the racial and ethnic diversity of the children

needing homes. The Interethnic Placement Provisions (IEP),69 enacted in 1996,

clarified MEPA and created sanctions for states and agencies failing to comply with the

act. These statutes Afacilitate more timely placement of children into foster and adoptive

homes.@70

F. 1996: Personal Responsibility and Work Opportunity Reconciliation Act of

1996

On August 22, 1996 President Clinton transformed Awelfare as we know it,@71 when

he signed the Personal Responsibility and Work Opportunity Reconciliation Act

(PRWORA) of 1996..72 PRWORA repealed the Aid to Families with Dependent Children

program that had been in existence since 1935, replacing it with the Block Grant

Temporary Assistance for Needy Families (TANF). PRWORA turned over

administration of TANF to the States.73

Under TANF, states receive a lump sum of money to provide for a Awide range of

services to needy families, including child care, transportation assistance, job training,

mental health and substance abuse services, family planning and teen pregnancy

prevention programs, parenting education, domestic violence services, and a variety of

other family strengthening services.@74 States also have flexibility in the families they

69 P.L. 104-188. 70 Permanency for Children, supra note 62. 71 Peter T. Kilborn and Sam Howe Verhovek, The Clinton Record: Welfare Shift Reflects New Democrat, N.Y. TIMES, Aug. 2, 1996. 72 P.L. 104-193, 42 U.S.C. 601 et seq. 73 A Brief History of the AFDC Program, supra note 54. 74 See Rutledge Q. Hutson, Red Flags: Research Raises Concerns About the Impact of AWelfare Reform@ on Child Maltreatment, at 2-3 (Center for Law and Social Policy, Oct. 2001).


28

can serve because states Aneed not limit their aid to families receiving cash assistance,

but can assist a broader population of the working poor.@75

Under PWORA, federal cash assistance is now available for no more than five

years, except for limited exceptions, and it is no longer an entitlement.76 States are

under no federal obligation to provide assistance to any child or family. AUnder TANF,

adults who do receive such assistance face work and other >personal responsibility=

requirements and confront sanctions for failure to comply with these requirements.@77

TANF also provides@ child-only@ grants that provide support to eligible children; there

are no work requirements or time limitations on child-only grants.78

Under the PRWOR, states are to Aconsider giving preference to an adult relative

over a non-related caregiver when determining a placement for a child, provided that

the relative caregiver meets all relevant state child protection standards.@ 79 Advocates

of welfare reform were concerned that child-only grants, which do not have the work

requirements and time limits of family grants, would be used to subsidize kinship

caregivers. There was concern that parents might leave their children with relatives to

avoid the new welfare requirements, while still getting assistance with child-only grants.

There was also concern that that informal kinship care providers Awould seek

assistance from the child welfare system if forced to meet welfare requirements.@80

75 Id. 76 Id. at 2. 77 Id. at 2-3. 78 Id. at 2. 79 104 P.L. 193, '505(3). 80 Boots and Geen, supra note 32, at 2.


29

In fact, A[i]n more than a third of welfare households, the only recipients are

children.@81 In 1988 the share of child-only cases was10 percent nationally. In 2000

more than a million children across the U.S. were receiving child-only grants.82 In New

York City alone there were 58,137 childen as of August 2002. Fifty-four percent of

these one million children receiving child-only grants live apart from their parents,

reared by relatives who have no legal responsibility to support them. Often they are

with grandparents.83

In New York, child-only cases have been edging up every year since 1998 and

are now nearly 37 percent of the caseload. The most recent national welfare figures,

released to Congress in May, show child-only cases accounted for 35 percent of the

caseload in 2000.84

It is estimated that Aa quarter of all the nation=s welfare cases involve caretakers

who are relatives and collect welfare benefits themselves or on behalf of the children.@

But the rest, 75% are children living without their parents, in households headed by

relatives who receive no public cash aid, though virtually all of the children are eligible.85

According to Rob Geen of the Urban Institute, this is because some relatives do not

want welfare because of the stigma attached, some are unaware that help is available,

and some have been wrongly denied help.86

81 Nina Bernstein, Child-Only Cases Grow in Welfare, N.Y. TIMES, Aug. 14, 2002, at A1. 82 Id. at A14. 83 Id. at A1. 84 Id. 85 Id. 86 Id. at B3.


30

TANF authorization expired September 30, 2002, and has been extended by

Congress, but not reauthorized.

G. 1997: Adoption and Safe Families Act of 1997

At the same time that Congress and President Clinton ended welfare as we knew it,

by creating PWORA, the child welfare system was also being revamped. In 1997, the

Adoption and Safe Families Act (ASFA) 87 was enacted as an amendment to titles IV-B

and IV-E of the Social Security Act. ASFA, a bipartisan approach ensuring that the all

child welfare decision making was driven by the concern for children=s safety, also

promoted adoption and other permanent placements for children Awho cannot return

safely to their own homes.@88 The ASFA regulations emphasize the importance of

safety for children with relatives.89 In January 2000, the U.S. Department of Health and

Human Services (HHS) released a final rule to guide state implementation of ASFA,

including requirements for state licensing of kinship care homes.90

H. 2000: Older Americans Act

A piece of legislation important when discussing grandparent kinship care is the

Older

American Act (OAA) of 2000.

The National Family Caregiver Support Program (NFCSP), established by the

reauthorization of the Older American Act (OAA) of 2000, provides funds to states for

87 P.L. 105-89. 88 Permanency for Children, supra note 62; see also Debra Ratterman Baker, The New Adoption and Safe Families Act Federal Regulations, ABA Center on Children and the Law (June 2000) at http://abanet.org/child/tom.html (last visited July 30, 2002). 89 The Adoption and Safe Families Acts (ASFA) Regulations and Kinship Care Families B Frequently Asked Questions, The Children=s Defense Fund (Spring 2000) at http://www.childrensdefense.org/childwelfare/adoption/asfa_basics.asp (last visited July 30, 2002). 90 Jacob Leos-Urbel, et al., The Urban Institute, State Policies for Assessing and Supporting Kinship Foster


31

their Area Agencies on Aging (AAAs). Approximately $113 million had been allocated to

states= AAAs as of May 2001.91 The money is used to support relatives and other

unpaid caregivers who care for the elderly as well as relatives over the age of 60 caring

for children. However, only 10% of the NFCSP funds can be allocated to relatives over

the age of 60 caring for children under that age of 19.92

Parents, 7-8, (1999). 91 U.S. Department of Health and Human Services, The Many Faces of Aging: Family Caregiving, Administration on Aging (May 17, 2001); see also Jim Mayfield, et al., Kinship Care in Washington State: Prevalence, Policy, and Needs at 9, Washington State Institute for Public Policy (June 2002). 92 U.S. Department of Health and Human Services, State Guidance to Implement Title III, Part E: National Family Caregiver Support Program@, AoA-Pl-01-02, Administration on Aging (Jan. 8, 2001) at http://www.aoa.gov/prof/agingnet/PI/PI-01-02.asp.


32

IV: How Subsidized Guardianship Fits Into the Picture

Subsidized guardianship is a new and rapidly evolving policy that seeks to provide

permanency for children, usually in a kinship arrangement, while at the same time

providing financial support to assist the care and support of the child. Subsidized

guardianship differs from foster care in that parental rights are not terminated, and the

child is not a ward of the state, providing greater privacy and flexibility in the living

arrangement.

Subsidized guardianship policies and programs are developing every day, and, as of

April 2003, 36 states have implemented such a policy. The policies integrate federal

welfare and child welfare policies, and aging law, and are imbued with each state=s

public policy and budget.

Because of the open-ended nature of this dynamic policy, states that have not as yet

created a policy have the advantage of reviewing their own needs against the models

created by the rest of the country.

A. Factors to Consider in Developing Subsidized Guardianship Policy93

1. Define Subsidized Guardianship

Not all of the states with subsidized guardianship programs use the term

Aguardianship@ as a formal legal designation. While some states do require legal

guardianship, other states refer to informal kinship care as guardianship. Some states

require that the guardian be a relative, others do not.

2. Utilize Guardianship Laws.

93 See Mary Lee Allen, et al., Expanding Permanency Options for Children: A Guide to Subsidized Guardianship Programs, Children=s Defense Fund, Cornerstone Consulting Group (2003) (an in-depth discussion of factors to consider in developing subsidized guardianship policy).


33

If a state has existing guardianship laws, the framework for guardianship exists,

and the option of a subsidy can be amended to existing legislation.

3. Utilize Existing Kinship Practice.

States that recognize kinship caregivers within three degrees of separation could

use this designation as the basis for a Asubsidized guardianship@ program.

B. Review Choices

Subsidized guardianship presents a placement choice for review by:

1. The Courts: Subsidized guardianship can be reviewed as one of the options

for consideration by the courts in permanency hearing and disposition

procedures.

2. Social Services: Notification of relatives by Social Services of the options of

relative foster care, guardianship, and of subsidized guardianship, can be made

before a child is placed with non-kin.

3. Parents: Consideration and determination of the appropriateness of

reunification with the parents should be made before considering other

permanency options.

4. Child if Older: Older children could be given a choice in the election of a

subsidized guardianship placement.

5. Guardians: Guardians need to be educated and informed about all placement

options, in order to make well-informed decisions as to which permanency option

is in the best interests of the child.

C. Advantages and Disadvantages of Subsidized Guardianship


34

1. Permanency

Advantages

Greater Permanency. Because the child will have a home with a guardian,

not threatened by removal for adoption or placement in another foster home, greater

permanency can result. Permanency can be the basis for greater emotional, physical

and academic success.

Disadvantages

Competing Interest. Subsidized guardianship could compete with adoption as

a

permanency solution.

2. Healthier Environment. As a result of permanency, the child=s home is

potentially more stable, providing emotional support, adequate food and medical care,

with supervision of space allocated to child, and basic living standards, as well as

support systems, such as, special needs and psychological care.

Advantages

a. Healthier Child. Increased permanency with adequate emotional,

nutritional and physical care results in a healthier child, in need of fewer

support services in future years.

b. School Environment. Greater permanency resulting in a healthier living

environment can result in a more stable and productive school

environment for the child, resulting in a higher level of skills attainment,

deeper ties to the community, opportunity for academic achievement,


35

higher education, leading to adult employment, leading to adult self-

sufficiency.

c. Adult Self-Sufficiency. A self-sufficient adult provides support to the

social services system, as a taxpayer, using fewer, if any, social services.

Disadvantages

a. Reliance on Government. However, an example of government

providing a solution could be viewed as encouraging a lack of self-

sufficiency in the children. Opponents of subsidized guardianship suggest

that it provides a bonus, at taxpayer expense, to dysfunctional families

and to those unwilling to take responsibility for their actions, providing a

new type of Awelfare@.

3. Reduced Stress on Caregivers

Advantages

a. Financial Subsidy. Many caregivers are older, many are the

grandparents of the children who did not plan for this new financial

responsibility, and so do not have the necessary additional resources. A

subsidy could remove or alleviate the financial stress added by

guardianship.

b. Follow-Up Service. Services such as respite care could ease some of

the burdens of older caregivers who often have health issues. The

demands of childcare for an older adult can be stressful.

c. Reduced Stress Means a More Stable Environment. A stable

environment is good for the children as well as the adults.


36

4. Relief for Foster Care System

Advantages

Foster Care System Overburdened

The foster care system is in heavy use

Number of available foster care beds is decreasing in some states94

Child, if from foster population, would no longer be ward of the state

Subsidized guardianship, if utilized to aid children not in the current foster

care system, has the potential to require a higher burden on taxpayers

94 For example, in N.Y. State, approved relative foster home were 5,303 during January 2002, down from 7,313 during January 1999; foster boarding homes totaled 11,654 during January 2002, down from 14,074 during January 1999. (E-mail from Jamie Greenburg, Family and Children Services Specialist, NYS Office of Children & Family Services, to author (July 19, 2002)); see Leslie Kaufman and Richard Lezin Jones, Cradle to Grave in Flawed New Jersey Foster Care, N.Y.TIMES, July 6, 2003, A1, A33 (reporting that in New Jersey the number of foster homes had fallen to 4,473 from 4,685 in the last 18 months; the state had more than 7,000 foster children in July 2003).

D. Funding Streams


37


essential step in analyzing its feasibility.95 Generally, the federal government does not


guardianship program. States have utilized three main funding streams to implement

subsidized guardianship programs.

Option 1. The Federal Waiver Demonstration Project. This option provides

reimbursements to states for purposes other than board and maintenance, as long as

the program is cost neutral to the federal government. Under the federal waiver, states

divert money from the IV-E program for programs and services that are not authorized

under Title IV-E. As of April 2003, six states fund subsidized guardianship programs

with the waiver: Illinois, Maryland, Montana, New Mexico, North Carolina, and Oregon96

However, the waiver program represents a limited solution because waiver

projects have a limited time of five years. There is no permanent statutory authority for

operating the subsidized guardianship program when the waiver expires, beyond the

renewal of the waiver.97

The application period for IV-E demonstration projects is now closed and,

therefore, is no longer a potential funding source for subsidized guardianship.

95 For a detailed look at how the New York State Office of Children and Family Services reviewed kinship care, and subsidized guardianship, and framed those needs within a fiscal analysis, see Fred Wulczyn, et al., Relative Caregivers, Kinship Foster Care, and Subsidized Guardianship: Policy and Programmatic Options, A Report prepared for the New York State Office of Children and Family Services, Chapin Hall Center for Children, University of Chicago (Aug. 2002, released to the public Mar. 2003). 96 Cornerstone Consulting Group, Inc., Guardianship: Another Place Called Home, Appendix 1, available at http://www.cornerstone.to/what/guardianship.pdf. Title IV-E funding for Delaware=s Assisted Guardianship program was not renewed as of Dec. 31, 2002. See note 102, infra. 97 New York reviewed the possibility of utilizing the IV-E waiver to fund subsidized guardianship, spending several years analyzing how the plan would work between the federal government and New York; ultimately New York declined to participate in the waiver demonstration project.


38

Option 2. TANF Block Grant. A number of states have opted to use a portion of

the TANF block grant as the federal share of subsidy payments for subsidized

guardianship and have used a variety of approaches to doing so. The TANF program

introduces program rules that present their own issues for sharing the costs of

subsidized guardianship. Each state has its own formulae for allocating costs between

the state and federal government.98

Programs providing ongoing cash assistance to kinship caregivers of children

are reimbursable with federal TANF funds

States have discretion in defining separate eligibility criteria and benefit levels for

subsidized kinship guardianship programs.

Depending on how the program is structured, different aspects of TANF come

into play, and they apply differently if the TANF benefit is child-only or is for the relative

caregiver. Two key questions are:

Question 1 Assistance. Does the program provide assistance? Cash payments

to relative guardians are considered assistance, under purpose 1 of

PRWORA. If the recipient is the relative caregiver, then the work

and training requirements, time limits and data reporting

requirements apply.

2. If the recipient is only the child, these requirements do not apply.

98 U.S. Department of Health and Human Services, Administration for Children and Families, Helping Families Achieve Self Sufficiency: A Guide on Funding Services for Children and Families through the TANF Program (May 1999) available at www.acf.dhhs.gov/programs/ofa/funds2.htm.


39

Question 2 Needy Families. Does the program provide support to needy

families? Programs justified under purpose 1 must provide assistance to needy

families.

1.Only expenditures on behalf of needy families qualify as an allowable

maintenance of effort (MOE) expenditure.

2. If the recipient of the subsidized guardianship payment is the child, the child

may be defined as needy based on his or her own assets. Payments for that child=s

needs would then be countable as an MOE expenditure.

As of April 2003, 10 states utilizing TANF funds for subsidized guardianship

programs are: California, Florida, Georgia, Indiana, Kentucky, Louisiana, Nevada, New

Jersey, Oklahoma, and Wisconsin99

TANF funds, if currently already utilized for existing programs, could be selected

for subsidized guardianship use in future. Future of TANF funding is not as yet secure

Option 3. State and Local Funding of Subsidized Guardianship Programs

Utilizing state and local funds for subsidized guardianship is the most common

funding stream. 21 states and the District of Columbia have gone this route: Alaska,

Arizona, Connecticut, Delaware, the District of Columbia, Hawaii, Idaho, Iowa, Kansas,

Massachusetts, Minnesota, Missouri, Montana, Nebraska, North Dakota, Pennsylvania,

Rhode Island, South Dakota, Utah, Washington, West Virginia, Wyoming

Many states are experiencing budget crises; therefore, state funds will not remain

a reliable source for subsidized guardianship.

E. Population

99 See supra note 96.


40

Because of the cost of subsidized guardianship, limiting the eligibility of the child

could be a prime consideration. Additionally, public policy may not support the concept

of subsidized guardianship for all children in need of care. A review of the options used

by other states to limit the population to be served by subsidized guardianship follows:

1. Eligibility of Child

� Age of Child. (Should there be a minimum or a maximum age).

� Consent of Child if Over Age 14

� Special Needs Only


41

� Alone or in Sibling Groups

� In Foster Care

� At Risk of Entering Foster Care

� Kinship Care, Non Foster

� Related to Caregiver

� Pre-existing Attachment to Caregiver

� Not Able to be Reunited with Parent(s)

� Adoption No Longer a Possibility

� Best Interest of the Child not to Terminate Parental Rights

2. Eligibility of Caregiver

� Age of Caregiver. Should there be a minimum or maximum

� Related to Child

� Require a Pre-existing Attachment to Child

� Foster Certified

� Home Must Meet Foster Guidelines

� Commitment to Providing a Safe and Permanent Home for the Child

� Limit Number of Children in Program per Guardian

3. Income Test

� Income of Child

� Income of Parent

� Income of Caregiver

4. Amount of Subsidy

� TANF rate


42

� Foster Care Rate

� Adoption Subsidy

5. PostnGuardianship Services

� Medicaid Services

� Child Care

� Transportation

� Respite Care

� Legal Fees and Services

� Psychological Services for Children and Guardians

� Support Groups

� Education

6. Community Support Services

Existing community support services can be utilized to enhance subsidized

guardianship programs

� Departments of Aging

� Public Schools

� Community Centers

V: Summary of Subsidized Guardianship Programs Across the United States

As of April 2003, 40 subsidized guardianship type programs are running in

36 states, including the District of Columbia.100 No one state interprets subsidized

guardianship the same as another. Some states have passed legislation to define and

100 This report includes Washington and Wisconsin, whose cash subsidy programs resemble subsidized


43

authorize their programs, other states have not. Subsidized guardianship programs

range in size from caring from as few as 4 children (Idaho) to as many as 13,983

(Florida). Each state has drafted its own description of what subsidized guardianship is,

with specific program guidelines, utilizing specific funding streams. Each program

reflects the needs and vision of each state=s citizens and lawmakers. This report

provides:

� A listing of programs sorted by funding streams

o TANF Funded Programs

o State Funded Programs

o Title IV-E Waiver Funded Programs

� A summary of each of the 40 programs currently offering some form of a

subsidized guardianship program, including

o Program Title

o Citation

o Funding Source

o Income Test

o Eligibility of Child

o Eligibility of Guardian

o Post-Guardianship Services

o Number of Children in Program

guardianship programs, although they are not officially designated as such.


44

A. List of Subsidized Guardianship Programs, Sorted by Funding Source, by State

1. TANF Funded Programs o California (supplemented by state and county funds) o Florida o Georgia o Indiana (supplemented by county funds) o Kentucky o Louisiana o Nevada o New Jersey (Programs 1 and 2) o Oklahoma o Wisconsin

2. State and Locally Funded Programs

o Alaska o Arizona o Connecticut (supplemented by Federal funds) o Delaware o The District of Columbia (funded by the District) o Hawaii o Idaho o Iowa (Currently Not Funded) o Kansas o Massachusetts o Minnesota o Missouri (Programs 1 and 2) o Montana (Program 1) o Nebraska o North Dakota (supplemented by Title IV-B) o Pennsylvania (supplemented by county funds) o Rhode Island o South Dakota (supplemented by Social Services Block Grant, Title XX) o Utah o Washington o West Virginia o Wyoming


45

3.Title IV-E Waiver Funded Programs o Illinois o Maryland o Montana (Program 2) o New Mexico o North Carolina o Oregon


46

B. Summaries of Subsidized Guardianship Programs

Across the United States101

Sorted by Alphabetical Listing of States

101 Except as noted in subsequent footnotes, this summary is based on findings reported by the following sources: Mary Lee Allen et al., Expanding Permanency Options for Children: A Guide to Subsidized Guardianship Programs, Children=s Defense Fund, Cornerstone Consulting Group (2003); Ana Beltran, Grandparents and Other Relatives Raising Children: Subsidized Guardianship Programs, Generations United (Aug. 2002); Steve Christian, Steve and Linda Ekman, A Place to Call Home: Adoption and Guardianship for Children in Foster Care, National Conference of State Legislatures, Mar. 2000; Cornerstone Consulting Group, Inc., Appendix-Summary of Assisted Guardianship Programs Interviewed by Cornerstone Consulting Group, AGuardianship: Another Place Called Home@, 2001, available at http://www.cornerstone.to (last visited July 18, 2002).


47

Alaska

Program AGuardianship Subsidies= program, started in 1990 Program was designed to make permanency planning services more culturally competent

Citation AK Statutes, '' 13.26.062, 25.23.190-25.23.240 and 47.14.100. Regulations at AK Admin. Code, Vol. 7, '' 53.200-53.250

Funding Source State funds

Income Test The income and assets of both the guardian and the child are tested

Amount of Subsidy The amount of the subsidy may not exceed the foster care rate Subsidy is negotiated based upon the needs of the child and the circumstances of the guardian The amount of the subsidy is usually about $100 below the basic foster care rate

Eligibility of Child Child must be in state care and have special needs Child must have been in the care of the prospective guardian for at least 6 months Child must be over the age of 10 If under age 10, the reason for the guardianship must be explained Return home and adoption are Anot likely nor in the child=s best interests@ Children in the juvenile justice system are eligible Focus is on children living with kin and children of Native American families State must attempt parental consent and rule out adoption and consult child

Eligibility of Guardian Guardians need not be relatives Do not have to be certified foster parents but must undergo a home study and a criminal background check Children under 10 required to have developed attachment to caregiver Caregiver must make commitment to child


48

Post-Guardianship Services

Medical assistance is not part of the subsidy If the child is not Medicaid eligible, the State will consider the child=s medical needs in determining the amount of the subsidy Review by state every 12 months

Number of Children in Program

357 children as of August 2002


49

Arizona

Program

ASubsidized Permanent Guardianship Program@, started on August 6, 1999 for guardianships finalized after that date

Citation AZ Revised Statutes, ' 8-814, 8-871, 8-872


Income Test

Amount of Subsidy Subsidy is same as the foster care rate, offset by any funds from other cash-assistance programs for which the child is eligible

Eligibility of Child Child must be under age 18 Not limited to children with special needs Exception made for full time students over age 18 Child must be a ward of the court and in custody of prospective guardian for at least 9 months (can be waived under exceptional circumstances) State must attempt parental consent, make placement in best interest of child, rule out adoption and return home

Eligibility of Guardian The guardian must apply for all other cash-assistance programs for which the child is eligible Legal guardianship or custody required


Review by state every 12 months


500 served as of June 2002


50

California

Program

AKinship Guardianship Assistance Payment Program@ (Kin-GAP), started on January 1, 2000 California=s subsidized guardianship program is part of a larger state-supported effort to provide resources, supports and services for relatives raising children

Citation CA Welfare and Institutions Code, '' 11360-11370

Funding Source TANF Any amount of the subsidy in excess of the TANF child-only payment is to be funded in equal portions by the State and the counties

Income Test Child must be exiting the foster care system

Amount of Subsidy Same as the foster care board rate

Eligibility of Child Child must be under age 18 Exception made for full time students over age 18 Child must be in state care for at least 12 months Not intended for special needs children (children with special needs are eligible for other funding) Any child adjudicated dependent and permanently placed with a relative guardian The child must have been living with the prospective guardian for a least one year Placement must be in best interest of child, adoption and return home must be ruled out

Eligibility of Guardian Legal guardianship or custody required Child=s attachment to caregiver required The guardian must be within a specified degree of relationship to the child The guardian is assessed according to the statutory criteria established for foster care placement with a relative, which includes willingness and ability to provide permanency Caregiver must make commitment to child


Review by state every 12 months Medi-Cal Additional Services may be obtained through Kinship Support Services Program


51


6,700 as of July 2001

Connecticut

Program

ASubsidized Guardianship@ program, started in 1998 Program is part of the State=s overall efforts to increase permanency for children

Citation CT Code, Social and Human Services, ' 17a-12b and accompanying Dept. of Children and Families Agency Regulations


Income Test Only the child=s income and assets are tested

Amount of Subsidy The foster care rate less the child=s assets and income Subsidy is paid at a higher rate than adoption Families in the program also may be eligible for a one-time exceptional payment not to exceed $500 for extraordinary expenses associated with the guardianship

Eligibility of Child Child must be under age 18 Exception made for full time students over age 18 Child must have been in foster care or certified relative care for at least 12 months Child must have lived with the relative for at least 12 months Reunification is not possible within the foreseeable future Not limited to children with special needs State must attempt parental consent, placement must be in best interest of child and child must be consulted

Eligibility of Guardian Legal guardianship or custody required Child=s attachment to caregiver required Child must be in guardian=s care for 12 months prior Limited to relatives of the child who are licensed or certified as foster parents A state, local and FBI criminal background check and drug screen are required of all household members Caregiver must make commitment to child


52


Review by state every 12 months Children in the program are covered by Medicaid


950 children as of June 2002

Delaware

Program

ASubsidized Guardianship@ program

Citation


Income Test Income test for kin

Amount of Subsidy Same rate as foster care rate and adoption subsidy

Eligibility of Child The child must have lived for at least one year with a foster parent with whom the child has established a stable and positive relationship Child must have special needs Child must be age 12 or older or be part of a sibling group or have special needs if younger Exception made for full time students over age 18 Return home and adoption must be ruled out as permanency options Placement must be in best interest of child, child must be consulted

Eligibility of Guardian Legal guardianship or custody required Child=s attachment to caregiver required Child must be in guardian=s care 12 months prior The guardian must be an approved foster parent able to care for the child without continued involvement of the child welfare agency No special priority for kin Caregiver must make commitment to child


Review by state every 12 months Children in the program are covered by Medicaid Case management services also may be provided


10 children as of April 1, 2003


53

102/103

102 Author=s Telephone Conversation with Frank Perfinski, Adoption Program Manager, Delaware Division of Family Services on Apr. 1, 2003, revealed that Title IV-E funding for Delaware=s Assisted Guardianship program was not renewed as of Dec. 31, 2002. In April 2003, the 10 children in the original waiver program were being funded by state funds. In addition to the waiver program, Delaware also had a state-funded Subsidized Guardianship program, funding up to 10 additional children annually. Now that the 10 children originally funded by the waiver are funded by the state, only 10 children, and not 20 children, are being served. 103 Id.

The District of Columbia

Program

APermanent Guardianship Subsidy Program@.

Citation District of Columbia Municipal Regulations, Chapter 61, '' 6100-6199

Funding Source District of Columbia


Amount of Subsidy Equal to foster care rate Cost of guardianship proceeding is covered

Eligibility of Child Child must be at least 2 years of age Exception for member of a sibling group or for children with disabilities Eligibility ends at 18 years of age Exception for full time students over age 18 Child must be in state care Placement must be in best interest of child, adoption and return home must be ruled out

Eligibility of Guardian Legal guardianship or custody required Child must be in guardian=s care for at least 6 continuous months prior Eligibility ends if child obtains residence outside permanent guardian=s home, unless guardian


54

demonstrates financial responsibility for child and child attends a residential school


Review by state every 12 months Medicaid


64 eligible referrals with half of the children processed as of April 8, 2003

104

104 E-mail from Felicia Kraft, Supervisory Social Worker, District of Columbia Child and Family Services Agency, Administration for Licensing, Monitoring and Placement Support Services, to author, Permanent Guardianship Subsidy Program, (Apr. 8, 2003).


55

Florida

Program

ARelative Caregiver Program@ started in 1998

Citation Fla. Stat. 39.5085; Fla. Admin. Code Rules 65C-24.001 et seq.

Funding Source TANF

Income Test Only the child=s income and assets are tested

Amount of Subsidy Monthly payments are based on the child=s age The enabling legislation provides that the statewide average monthly subsidy rate not exceed 82% of the statewide average foster care rate

Eligibility of Child Child must be under age 18 Child must be in state care Child must continue to live in Florida Children who receive SSI not eligible Not limited to children with special needs Changes during 2002 legislative session expanded kinship care to include the half-siblings of children who are within the fifth degree of relation to a non-parent with whom they reside pursuant to a court ordered placement Placement must be in best interest of child, child must be consulted

Eligibility of Guardian Relatives with court-ordered temporary legal custody or Relatives with court-ordered placement of children with the State retaining supervision Relatives who have obtained permanent custody or guardianship Child must be in guardian=s care during the month of application and thereafter Caregiver must cooperate with child support enforcement Relatives are not required to meet foster care licensing requirements State agency conducts home study and background checks Caregiver must make commitment to child


Review by court every 6 months Medicaid Subsidized child care


56

Family support and preservation services


13,983 as of May 2002


57

Georgia

Program

ARelative Care Subsidy Program@

Citation Social Services Manual, April 2001, Chapter 1000, ' 1004.2 et.seq.

Funding Source TANF

Income Test Child=s income and assets are tested

Amount of Subsidy Less than foster care rate and more than TANF

Eligibility of Child Child must be under 18 years of age Child must be in state care Placement must be in best interest of child Adoption and return home must be ruled out

Eligibility of Guardian Legal guardianship or custody required Child must be in guardian=s home prior to placement Caregiver must make commitment to child A relative living outside the state may also qualify


Review by state every 12 months Child may be eligible for Medicaid Additional expenses may be covered if county has funds Subsidy continues if custodian and child move to another state


Approximately 850 children have been approved for the program as of April 1, 2003

105

105 E-mail from Gloria Patterson, Human Services Specialist, Georgia Dept. of Human Resources Div. of Family and Children Services, Foster Care Unit, to author, Relative Care Subsidy Program (Apr. 1, 2003).


58

Hawaii

Program

APermanency Assistance@ program, started in 1990 Program involves an award of permanent custody to an appropriate agency (typically the state child welfare agency), which has the effect of terminated parental rights Program is part of State=s overall permanency continuum, which also includes adoption and Apermanent custody@

Citation HI Rev. Stat. ' 346-14; Regulations at HI Admin. Rules, Dept. of Human Services, Title 17, Chapter 835


Income Test Only the child=s income is tested

Amount of Subsidy Child=s income is subtracted from the subsidy, which can be the same as the foster care board rate Additional funds can be provided based on difficulty of care

Eligibility of Child Child must be under 18 years of age Child must be in state care Not limited to children with special needs The state must determine that permanent, out-of-home placement is in the child=s best interest, adoption has been ruled out, and that guardianship is the most appropriate legal status for the child Child must be consulted

Eligibility of Guardian The caregiver obtains either permanent custody or guardianship Prospective guardians need to be licensed as foster parents


Review by state every 12 months Medical coverage The State contracts with private providers to provide post-permanency services, for which guardianship families are eligible


600 children served during 2001


59

Idaho

Program

AGuardianship Assistance Program@

Citation Idaho Code ' 56-802 et. seq.


Income Test Child=s assets are tested

Amount of Subsidy Equal to foster care rate

Eligibility of Child Child must be under 18 years of age Child must be in state care Program is designed for hard to place children, defined as those who are difficult to place for adoption or guardianship Adoption and return home must be ruled out, child must be consulted

Eligibility of Guardian Legal guardianship or custody required Caregiver must make commitment to child


Review by state every 12 months Medical services paid directly to provider Based on need, certain one-time expenses are covered



106

106 E-mail from Meri Brennan, Adoption Program Specialist, Idaho Dept. of Health and Welfare, Family and Community Services, to author, Guardianship Assistance Program (Apr. 2, 2003).


60

Illinois

Program

ASubsidized Guardianship Program@, started in 1997 Program developed primarily in response to the growing number of children living with kin Illinois offers extensive training for staff and materials to assist families in understanding the differences between various permanency options Illinois has the only official post-guardianship program in the country

Citation Ill Admin. Code tit. 89, ' 302.405, Title IV-E Child Welfare Waiver, 705 ILCS 405/2-27

Funding Source Title IV-E waiver

Income Test

Amount of Subsidy Same rate as foster care board rate and adoption subsidy The state also covers one-time costs associated with establishment of the guardianship, up to $500

Eligibility of Child Child must be at least age 12 if living with a non-relative Financial assistance may be provided through age 19 for a child still in high school or until age 21 for those with certain disabilities The child must have been in state legal custody for at least 12 months Return home and adoption must be ruled out The child must have lived with the prospective guardian (either a relative or other foster parent) for at least one year; this requirement may be waived if in the best interest of the child The child must consent to the guardianship if age 14 or older State must attempt parental consent

Eligibility of Guardian Legal guardianship or custody required Child must have attachment to caregiver Prospective guardians must have no record of felony convictions Must have a strong commitment to the child Child must be in guardian=s home for at least 1 year prior


61

If a non-relative, must be licensed as a foster parent Caregiver must make commitment to child


Review by state at least every 24 months Children in the program are eligible for medical assistance, casework assistance, crisis intervention and vouchers for special services Services such as child care, counseling, educational advocacy and scholarships may be provided


3,971 children in the program at the end of November 1999 8,000 children are expected to participate by the end of the demonstration project


62

Indiana

Program

AAssisted Guardianship Program@, started in July 2000

Citation Ind. Admin. Code Title 470 r.3-10-5-1 et seq.

Funding Source TANF

Income Test Child=s assets are tested Gross income attributable to child under TANF rules must be less that 250% of federal poverty level

Amount of Subsidy The maximum monthly payment is $512 per child, which is higher than some counties foster care rates and lower than others Rate varies based on need of child Each county establishes its own daily rate

Eligibility of Child The child must be 13 years or older, but special considerations are given if the child is part of a sibling group, has a serious disability, or another compelling reason is given State must attempt parental consent Placement must be in best interest of child, child must be consulted Adoption and return home must be ruled out

Eligibility of Guardian Legal guardianship or custody required Child must have attachment to caregiver Caregiver must make commitment to child Child must be in guardian=s home for 6 continuous months prior


Review by state every 12 months County may pay some part of guardianship proceeding Guardian must obtain medical coverage on behalf of child through Medicaid, CHIP or other


159 children being served as of July 2002


63

Iowa

Program

ASubsidized Guardianship Program@, started 1999

Citation IA Admin. Code r. 441-204

Funding Source Currently Not Funded

Income Test

Amount of Subsidy The minimum is $10. per month, and the maximum is not to exceed the foster care rate

Eligibility of Child The child must have been in foster care for at least 12 months and be either age 14 or older or, if younger, be part of a sibling group that precludes availability for adoption Reunification must have been ruled out as a permanency option. Termination of parental rights must have been determined to be inappropriate Child must be in state care for at least 12 of last 18 months State must attempt parental consent Placement must be in best interest of child

Eligibility of Guardian At the discretion of the court Legal guardianship or custody required Caregiver must make commitment to child


Review by state every 12 months Medical assistance Child with special needs may receive additional allowance


200 children as of November 1999


64

Kansas

Program

APermanent Guardianship Subsidy@ program, started in July 2000

Citation KS Dept. of Social & Rehabilitation Services Commission of Children & Family Policy Program Instruction Memo, 12/16/99, PIM Number 99-05


Income Test Only a child=s income in excess of $186 per month is taken into consideration in determining eligibility

Amount of Subsidy The guardian is expected to apply for other cash assistance benefits on behalf of the child, such as TANF child-only These funds will offset the monthly subsidy, which is a maximum of $225 per child

Eligibility of Child The child must be 14 years of age or older, but exceptions are made for sibling groups or other compelling circumstances Child must be in state care Eligibility ends at age 18 or completion of high school, whichever comes first State must attempt parental consent Adoption and return home must be ruled out, child must be consulted

Eligibility of Guardian Legal guardianship or custody required Caregiver required to make commitment to child


Review by state every 12 months Counseling is provided under Medicaid


110 children being served as of September 2002


65

Kentucky

Program

AKinship Care Program@, started in October 1999

Citation 922 KY Admin. Regs. 1:130; KRS ' 605.120

Funding Source TANF

Income Test Only the income of the child is tested

Amount of Subsidy The maximum monthly payment is $300 per child for up to 6 children

Eligibility of Child Child must be 15 or younger Exception made for full time students ages 16-18 Not limited to children with special needs Children must be in foster care or would be eligible to be placed in foster care Placement must be in best interest of child

Eligibility of Guardian The guardian must cooperate with child support activities Caregiver must agree to take temporary custody of child If home return not an option, must assume permanent custody of child


Review by state every 12 months Children are eligible for Medicaid On a case by case basis, child care, respite care and other services are provided


3,934 children being served as of June 2002

Louisiana

Program

_ AKins

on March 1, 20legislation

Citation

_ LA Re

Funding Source _ TANF _ Child=

month _ Incom

poverty level

Income Test

Amount of Subsidy

_ Appro

care rate and $rate

_ Month _ The c

custody or care_ Child _ Child _ Childr

Family Indepenexempted

Eligibility of Child

_ Not lim_ Child

with a grandpa

Eligibility of Guardian _ Relat

child=s legal cu_ Child

prior _ The c

household


_ Revie_ Low-i

available for guotherwise meerequirements

Number of Children in

Program

_ 5,219

Government Law Center of Albany Law School 66


67

Maryland

Program

AKinship Care Subsidized Guardianship Program@, started in February 1998 Program grew out of the work of the Kinship Care Multidisciplinary Committee Maryland has also developed extensive resources and support groups for grandparents and other relatives raising grandchildren

Citation MD Dept. of Human Resources Circular Letter B SSA #01-2, July 13, 2001 B Title IV-E Child Welfare Waiver



Amount of Subsidy Rate is approximately halfway between the TANF child-only rate and the rate paid for foster care and adoption subsidy Participating guardians receive $300 per month per child

Eligibility of Child Child must be under age 18 Exception up to age 21 if child enrolled in formal education program Exception for sibling group members Child must be in the legal custody of the state for at least six months and in a stable placement with a relative Return home and adoption must be ruled out

Eligibility of Guardian Legal guardianship or custody required Caregiver must make commitment to child Child must be in caregiver=s home 6 months prior The prospective guardian must be a relative of the child and must have some means of financial support other than the guardianship subsidy Certification as a foster parent is not required Parents must be notified of transfer of legal guardianship


Review by state every 12 months Children in the program are eligible for medical assistance


68


1,500 children are anticipated to be served by program

Massachusetts

Program

AGuardianship Subsidy@ program, started in 1983

Citation Created without legislation. Regulations at Code of MA Regulations, Vol. 110, '' 7.300 - 7.303


Income Test If the child receives other State or federal support payments, the monthly guardianship payment is the difference between those payments and the foster care rate

Amount of Subsidy Foster care maintenance rate less child=s income from other sources

Eligibility of Child The child must be at least age 12, in the custody of the state and have been living with the prospective guardian for at least one year Child must be in state care for at least 6 months A child over age 12 must consent to the guardianship Parental consent also is sought, but not required A younger child may qualify if part of a sibling group or guardianship has been determined to be in the child=s best interest Not limited to children with special needs Return home and adoption must have been ruled out State must attempt parental consent Placement must be in best interest of child, child must be consulted

Eligibility of Guardian Legal guardianship or custody required Caregiver must make commitment to child Child must reside in caregiver=s home 12 months prior; exception if in best interest of child Guardians must submit to a home study and meet foster parent criteria


Review by state every 12 months Children are eligible for Medicaid Child and guardian are eligible for the Adoption


69

Crossroads Program and the Resource and Referral Program


Over 2,789 children as of July 2002

Minnesota

Program

ARelative Custody Assistance@ program, started in 1997

Citation MN Stat. Ann. ' 257.85


Income Test The gross family income must be 200% or less of the federal poverty guidelines to be eligible for the full subsidy If the gross family income is 300% of the federal poverty guidelines, the family is not eligible

Amount of Subsidy About 40% of the foster care rate Equal to adoption assistance payments Relatives must apply for the TANF child-only grant and the amount received is deducted from the subsidy

Eligibility of Child No age restrictions Must be members of sibling groups being placed together or have special needs Child must be under former or current custody of agency Placement must be in best interest of child Return home must be ruled out

Eligibility of Guardian The caregiver obtains legal custody, rather than guardianship Caregiver=s commitment to child required


Review by state every 12 months Most children are eligible for Medicaid


1,231 children being served as of May 2002


70

Missouri

(Program 1)

Program ASubsidized Guardianship@ program, started on August 28, 1999

Citation MO Ann. Stat. ' 453.072 B 453.074

Funding Source State adoption subsidy funds


Amount of Subsidy Not to exceed foster care

Eligibility of Child Child must be under age 18 Exception for full time students up to age 18 if expected to graduate Not limited to children with special needs The child must have been in the custody of the Division of Family Services Also eligible are children who meet special needs criteria and have been in the custody of the Department of Mental Health, Division of Youth Services or a private agency Placement must be in best interest of child

Eligibility of Guardian Legal custody or guardianship required Approved relatives are defined as grandparents, aunts, uncles, and adult siblings


Review by state every 12 months Services include Medicaid, child care, treatment services, respite care, rehabilitative services, crisis intervention, residential care and tutoring assistance Child care and legal fees up to $500 may be provided One time clothing allowance


1,240 children being served as of July 2002

(Program 2)Missouri Program _ AGra

Program@ (prebegun in 1997

Gover of Albany Law School

71 nment Law Center

Citation _ RSM13CSR40-2.30

Funding Source _ State

Income Test

_ The c

percent of the

_ Gran200% of pove

Amount of Subsidy

_ Less

_ Varie


_ Must_ Exce_ Exce

sibling groups_ Not l_ Also

special needs of the DepartmYouth Service

_ State

Eligibility of Guardian _ Lega

_ Granguardianship o

_ If theparticipate, theany other Aclosguardian or cu

_ Housfederal povertprogram

_ Both required to pa

_ Granunder age 50 foster parent tbut are subjecrequirements

_ The rfoster parent

Post-Guardianship

Services

_ Revie_ Child_ Coun

transportation

Number of Children in

More


72

Montana

(Program 1)

Program AState Guardianship Program@. The state legislation enacted in 1999 grants to the state Department of Public Health and Human Services the authority to use state funds to subsidize guardianship in accordance with department; the department anticipates issuing rules by March 2000 This initiative grew out of two privately-funded projects; through the Kellogg Foundation, Montana had developed an advisory group involving all 7 Native American tribes in the state, and through the Casey Family Program, two statewide meetings were held to identify child welfare priorities. Both efforts highlighted subsidized guardianship as a priority

Citation Mont. Code Ann. ' 41-3-421 (amended by 2001 Mont. Laws Ch. 281 (S.B. 170))



Amount of Subsidy Equal to family foster care rate less $10

Eligibility of Child Child must be under age 18 Exception for members of sibling groups Child must be in state care Placement must in best interest of child Adoption and return home must be ruled out

Eligibility of Guardian Legal guardianship or custody required Caregiver must make commitment to child Child must be in caregiver=s home 6 months prior


If caregiver requests, a range of services are available



73

Montana

(Program 2)

Program AIV-E Waiver Demonstration Project@, approved in September 1998 This initiative grew out of two privately-funded projects; through the Kellogg Foundation, Montana had developed an advisory group involving all 7 Native American tribes in the state, and through the Casey Family Program, two statewide meetings were held to identify child welfare priorities. Both efforts highlighted subsidized guardianship as a priority

Citation Mont. Code Ann. ' 41-3-444


Income Test Child must be IV-E eligible

Amount of Subsidy The subsidy amount will not exceed $10 less than the amount of the foster care maintenance payment being received by the child. The amount will vary based on factors including age and placement type

Eligibility of Child Child must be at least age 12, with exceptions for siblings Child must be in state or tribal custody and placed with the prospective guardian for at least one year Child must be in a paid IV-E foster care placement Child must be special needs Return home and adoption must be ruled out Placement must be in best interest of child

Eligibility of Guardian Legal guardianship or custody required Caregiver required to make commitment to child Guardians must be licensed foster care providers Child must be in caregiver=s home 6 months prior


Review by state every 12 months Medicaid is provided, as are services if requested by caregiver

Number of Children in Up to 90 children are anticipated to participate in the


74

Program program by the end of the demonstration project

Nebraska

Program

ASubsidized Guardianship@ program, started in the early 1980=s Program began as an effort to increase permanency options for children, especially those over age 14

Citation NE Rev. Stat. , ' 43-284.02; Regulations at NE Admin. Code, vol. 390, '' 6-004 and 6-005


Income Test Only the child=s income is tested, and the monthly payment is offset by that income

Amount of Subsidy The subsidy is negotiated based on need, up to $1 less than the foster care rate Same as foster care and adoption assistance program

Eligibility of Child Child must be in state custody Return home and adoption must be ruled out Child must have special needs Child must have been living with the prospective guardian for at least six months Child must be at least age 12, or, if younger, be a member of a sibling group or have established a strong attachment to a relative caregiver Child must consent to the guardianship if over age 14 Children must be members of a sibling group of three or more to be placed together Payments continue until age 19, or when guardianship order is terminated State must attempt parental consent Placement must be in best interest of child, chuld must be consulted

Eligibility of Guardian Legal guardianship or custody required Child must have attachment to caregiver Caregiver must make commitment to child Child must be in caregiver=s home 6 months prior Prospective guardians must undergo a home study and an assessment of financial need


75

Relatives are preferred over non-relative caregivers Non-relatives must be certified foster parents


Review by state every 12 months Medical services Expenses for child care, transportation, respite care, and legal fees may be included in the subsidy, if needed Assistance for child care ends when child turns 13, unless special needs


850 children being served as of July 2002

Nevada Program _ ASuppo

October 1, 2001

Citation _ Assem

Funding Source _ TANF

I ncome Test

Amount of Subsidy _ Approx

care payment

Eligibility of Child _ Child m_ Must b

qualified relative_ Child m

Eligibility of Guardian _ Legal g_ Caregi_ Child m

months prior _ Caregi

and able to be s_ Crimina


_ Review_ Child re_ Respite

provided _ Legal f

covered


_ 220 ch


(Program 1) New Jersey

Program _ ADivisionLegal Guardiansh

_ Program

Citation _ NJSA 3


Funding Source

_ TANF

Income Test _ Child=s a

Amount of Subsidy

_ Less tha _ Full time_ Child m_ Agency

year or have activ_ State m


_ Placemechild, child must

_ Adoptioout

Eligibility of Guardian

_ Legal gu_ Petition

kinship caregiver_ Child m_ Caregiv_ Child m

months prior

_ Crimina


_ Review _ Medical_ Kinship _ No filing


_ 69 child

of April 8, 2003

107

107 E-mail from Linda Holland, New Jersey Division of Youth and Family Services, to author, Legal Guardianship Subsidy Program (Apr. 8, 2003).

New Jersey (Program 2) Program

_ AKinsh

Guardianship@

Citation _ NJSA 3

Funding Source _ TANF

Income Test _ Child=s_ Caregi

150% of federal


Amount of Subsidy

_ Less th

Eligibility of Child _ Full tim_ Except_ Placem

child, child must_ Adoptio _ Legal g_ Petition

kinship caregive_ Petition


_ Caregi_ Child m

months prior _ Crimina


_ Review_ Medica_ No filin



79

New Mexico Program

AAssisted Guardianship/Kinship Permanence@ program Program is closely connected to the state=s other Title IV-E waiver, ATribal Administration of Title IV-E Funds@ Funds are targeted for identified Native American organizations to establish subsidized guardianships for tribal children The program grew out of several years of meetings between the state and 22 tribal organizations The waiver was approved in June 1999, with implementation scheduled to begin January 2000 New Mexico also operates a second assisted guardianship program for non-tribal children as an additional permanency option

Citation Title IV-E Waiver Demonstration Project; New Mexico Children=s Code 32A-4-1 et. seq. NMSA


Income Test Child=s income and assets are tested

Amount of Subsidy Same as the foster care maintenance payment and adoption assistance payments

Eligibility of Child Tribal children who are eligible for IV-E foster care maintenance payments Randomly selected for guardianship in experimental or control group Child must be under age 18 Child must be in state care Return home and adoption must be ruled out Placement must be in best interest of child

Eligibility of Guardian Legal guardianship or custody required Child must have attachment to caregiver Caregiver must make commitment to child Guardians must undergo a home study


Review by state every 12 months Medicaid and other services available through the tribe


55 children in program as of April 9, 2003


80

TPF FPT

108

108 E-mail from Jeff L. Tompson, Manager Title IVnE, Children Youth and Families Dept., Protective Services Division, to author, Assisted Guardianship/Kinship Permanence Program (Apr. 9, 2003) (noting that the New Mexico program has an evaluation of its Title IVnE demonstration waiver projects on the internet at www.cyfd.org/specialevents.htm (visited Apr. 10, 2003)).

North Carolina

Program

AAssisted Guardianship Kinship Permanence Program@ Nineteen counties in North Carolina are participating in its waiver program, which was approved in November 1996 This assisted guardianship program grew out of a concerted effort to identify and develop strategies to improve permanency outcomes for children in the state North Carolina developed 5 child welfare goals and related activities and has connected the guardianship program to this process Other efforts include increased attention to kinship care and increased use of concurrent planning

Citation Title IV-E Waiver Demonstration Project


Income Test Income test for kin family

Amount of Subsidy $250 per month, with no offset for child support or other income of the child Same as the adoption assistance rate

Eligibility of Child Child must be under age 18 Return home and adoption must be ruled out Child must be consulted Primarily for children living with kin, but not restricted The child must have been in agency custody for at least one year The child must have lived with the prospective guardian for at least 6 months

Eligibility of Guardian Legal guardianship or custody required Caregiver must make commitment to child Prospective guardians must be willing to assume


81

guardianship of the child Have sufficient resources to support themselves Maintain a household in which no resident has a history of criminal behavior posing a risk to the child and in which there have been no substantiated cases of abuse or neglect Foster parent certification is not required


Review by state every 12 months Health insurance coverage provided


8 as of November 1999


82

North Dakota

Program

ASubsidized Guardianship Program@, started in March 2000

Citation N.D. Uniform Juvenile Ct. Act. ' 27-20-48.1 et. seq; Children and Family Services Subsidized Guardianship Program: Service Chapter 623-10

Funding Source State funds and Title IV-B federal funds

Income Test

Amount of Subsidy The maximum monthly payment is $16.11 per day, less any other benefits the child receives, which does not exceed the state foster care payment

Eligibility of Child The child must be at least 12 to qualify Exception for members of sibling group Child must be in state care Priority given to children age 16 or older State must attempt parental consent Placement must be in best interest of child Adoption and return home must be ruled out

Eligibility of Guardian Legal guardianship or custody required Caregiver must make commitment to child


Review by state every 12 months Reimbursement for guardianship legal expenses may be available


24 children were approved to receive subsidies as of June 2002, but none received as of August 2002


83

Oklahoma

Program

ASupported Permanency@ program

Citation OAC 340:75-1-18.3 (child welfare); OAC 340:10-22-1 (TANF); 10 OK St. ' 22.2

Funding Source TANF

Income Test

Amount of Subsidy Equal to foster care

Eligibility of Child Child must be age 12 or older Exception for members of sibling group Child must be in state care Adoption and return home must be ruled out Child must be consulted Child must reside in Oklahoma Permanency Program not currently available for tribal children

Eligibility of Guardian Caregiver must file a petition with the court to be appointed as the kinship guardian or court must order custody of child transferred to kinship guardian Child must have attachment to caregiver Caregiver must make commitment to child Child must be in caregiver=s home for 4 of most recent 6 months Supported permanency program is restricted to relatives meeting a TANF defined degree of relationship to child Guardian must reside in Oklahoma


Review by state every 12 months Legal expenses up to $500 are covered for transfer of legal responsibility TANF social worker assists with necessary social services referrals


176 children (88 cases) as of April 1, 2003


84

109

109 E-mail from Amy White, Permanency Planning Programs Manager, Okla. Dept. of Human Services, Children and Family Services Division, to author, Supported Permanency (Apr. 1, 2003).

Oregon

Program

AGuardianship Assistance Program@ In July 1999 the U.S. Department of Health and Human Services approved an extension of Oregon=s existing Title IV-E waiver project to include a subsidized guardianship program; the program was implemented in September 1999 The focus is on creating a mechanism to provide permanency for children in kinship care homes Oregon has developed extensive written training materials, procedures, and guidelines, including a AChoices Chart,@ which assists caregivers in understanding differences between various permanency options

Citation Title IV-E Waiver Demonstration Project; OR Admin. Rule 413-070


Income Test Child must be Title IV-E eligible Child=s income is tested

Amount of Subsidy Same as basic foster care rate

Eligibility of Child Child of any age if in a kinship home Child must be age 12 and over if not in a kinship home Exception for members of sibling group Child must be in state care for at least 12 months Child must live with caregiver for at least 6 months Different requirements apply to Native American children Return home and adoption must be ruled out State must attempt parental consent Placement must be in best interest of child

Eligibility of Guardian Legal guardianship or custody required Caregiver must make commitment to child Child must be in caregiver=s home for 6 months prior;


85

can be waived for sibling groups


Review by state every 12 months Guardian families are eligible for services through the state=s Post Adoption Resource Center Cost of legal fees for establishing guardianship is covered Liaison to division of child support also provided


276 children in 178 families as of December 2002

110

110 E-mail from Cheri A. Emahiser, Program Monitoring Manager, Office of Program Performance & Reporting, Oregon Dept. of Human Services, Children, Adults and Families, to author, Guardianship Assistance Program (Apr. 1, 2003).


86

Pennsylvania

Program

ASubsidized Permanent Legal Custodianship Program@ (SPLC) Caregiver Subsidy program, implemented as of June 2001, approved in the Governor=s budget of July 2000.

Citation Act 126 of 1998 (amended Juvenile Act); CFY Bulletin 3130-01-02/3140-01-02 (issued June 13, 2001)

Funding Source State and county funds


Amount of Subsidy Not to exceed foster care

Eligibility of Child Child must be under age 18 If over age 14, child must consent to placement Child must be in state care for at least 6 months Adoption and return home must be ruled out

Eligibility of Guardian Legal guardianship or custody required Child must have attachment to caregiver Caregiver must have attachment to child Child must reside in caregiver=s home for 6 months prior Caregivers are appropriately screened


Review by state every 12 months Medicaid Training provided to child and family to aid transition Additional services provided on a case by case basis



111

111 Telephone conversation between Teri Taschner, Children, Youth, and Families Program Specialist, Pennsylvania Dept. of Public Welfare, Office of Children, Youth and Families Bureau of County Children


87

and Youth Program, and author (Apr. 7, 2003).

Rhode Island

Program

AGuardianship Subsidy@ program Guardianship subsidies are effectively not available to relatives If the guardian is a relative, he or she is referred to apply for the TANF child-only grant

Citation RI Code, ' 40-11-12.3; RI Dept. of Children, Youth and Families guardianship subsidy memo


Income Test

Amount of Subsidy Equal to TANF payments

Eligibility of Child Child must be under age 18 Children who utilize program are in custody of state agency Placement must be in best interest of child Adoption and return home must be ruled out

Eligibility of Guardian Legal guardianship or custody required Child must have attachment to caregiver


Review by state every 12 months Child qualifies for medical services


22 active Guardianship subsidies


88

112

112 Email of Richard Barry, Chief Human Services Policy and Systems Specialist, Adoption Coordinator, Rhode Island Dept. of Children, Youth and Families, to author, Guardianship Subsidy Program (Apr. 3, 2003).


89

South Dakota

Program

ASubsidized Guardianship@ program, started in the mid-1980=s Program begun primarily to serve children in Native American families

Citation CPSP Manual 03-98 Family Foster Home Care Sub: Financial Assistance for Kin Care

Funding Source State funds in addition to some federal Title XX social services block grant funds

Income Test The income and assets of both the guardian and child are tested

Amount of Subsidy Maximum monthly payment is the same as the foster care board rate; minimum is 10% of foster rate The subsidy amount is negotiated and varies based on how the guardian=s income compares to the state median income

Eligibility of Child Child must be at least age 12 Exceptions to age requirement under certain circumstances Not limited to special needs Child must be in foster care for at least six months Return home and adoption and must be ruled out State must attempt parental consent Placement must be in best interest of child

Eligibility of Guardian Legal guardianship or custody required There are no specific eligibility criteria Most guardians are also relatives, although not always Kinship caregivers without legal guardianship or custody are eligible for a one time assistance payment


Review by state every 12 months Many children may be eligible for Medicaid or CHIP Certain one time expenses to aid placement or for one time need are covered

Number of Children in 79 children being served, as of May 2002


90

Program 60% of the children served to date are Native American


91

Utah

Program

AState-Funded Guardianship Subsidy Program@, started in mid 1990=s

Citation DCFS Child Welfare Manual, ' 350


Income Test Child=s income is tested

Amount of Subsidy Not to exceed specialized foster care rate Based on needs of child and family


Children age 12 and over Exception made for children with disabilities Exception made to age requirement if regional screening committee determines child will not be adopted Not limited to special needs Child must have been in foster care for 12 months or longer Placement must be in best interest of child, child must be consulted Adoption and return home must be ruled out


Legal guardianship or custody required Child must have attachment to caregiver Caregiver must have commitment to child Child must be in caregiver=s home for 12 months prior Only those guardians who cannot qualify for TANF=s child-only grants are eligible to receive a monthly guardianship subsidy Need not be kin to child If kin, must first apply for a specified relative grant; if ineligible, can receive guardianship payment.


Review by state every 12 months Medicaid In-home services to maintain placement may be provided


92


117 being served as of June 2002

Washington

Program

Dependency Guardianship payment This is a cash subsidy program and not officially designated as a subsidized guardianship program

Citation WA Revised Citations, ' 13.43.234


Income Test

Amount of Subsidy The subsidy is equal to the state=s foster care rate, less amounts received by the child from other sources, such as Social Security benefits and child support

Eligibility of Child The child must have been adjudicated dependent and in the custody of the state for at least six months The state must document that reasonable services have been offered to parents to help correct their parenting problems and that reunification is not a viable option It must also be shown that guardianship, rather than adoption, is in the child=s best interest

Eligibility of Guardian Must be a licensed foster care parent Prospective guardians must undergo criminal background and child abuse registry checks. Relatives are preferred for guardianships


Children in the program are eligible for medical assistance


Approximately 1,600

West Virginia


93

Program ASubsidized Guardianship@ program, started in 1998 is patterned and administered after the state=s subsidized adoption program

Citation WV Code, ' 49-2-17



Amount of Subsidy The amount of the subsidy is negotiated in the same manner as are adoption assistance payments and cannot exceed the basic monthly foster care rate A one-time payment for extraordinary expenses, not to exceed $1,000 is available

Eligibility of Child Child must be in state custody Child must be under age 18 Program is limited to older children Must have special needs by reason of physical or mental disability, emotional disturbance, age, membership in a sibling group, membership of a racial or ethnic minority or any combination thereof Child must have emotional ties to the prospective guardian State must attempt parental consent Placement must be in best interest of child, child must be consulted Adoption and return home must be ruled out

Eligibility of Guardian Legal guardianship or custody required Child must have attachment to caregiver Caregiver must have commitment to child Child must be in caregiver=s care at least 6 months prior if not kin The state qualifies guardian in the same manner as prospective adoptive parents A home study and background check are required


Review by state every 12 months Children in the program are eligible for medical assistance Preference for coverage under guardian=s health plan


94

Caregiver eligible for one time payment up to $1000 for fees related to transfer of guardianship Special needs subsidies available


11 served as of April 2000


95

Wisconsin

Program Long-Term Kinship Care Relative program started in 1998 This is a cash subsidy program, not designated as an official subsidized guardianship program

Citation WI Citations, ' 48.57(3n)

Funding Source TANF

Income Test No income test for child or caregiver Payments not available for children receiving supplemental security income (SSI) Any rights of the child or the child=s parent to support or maintenance from any other person are assigned to the State

Amount of Subsidy The payment is set at $215 per month per child, which is less than the State=s foster care rate (the foster care rate varies based on a child=s age and any special needs)


No age restrictions Not limited to children with special needs The child must have been adjudged to be in need of protection or services Return home must be ruled out The court awarding the guardianship must determine that it is not in the child=s best interest to terminate parental rights or to reunify the child with his or her parents

Eligibility of Guardian The guardian meet the definition of Along-term kinship care relative@ Must have been appointed guardian in a child protective proceeding Must undergo a home inspection and background investigation and cooperate in applying for any other forms of assistance for which he or she may be eligible



96


657 children being served as of August 2002

Wyoming

Program ASubsidized Guardianship@ program, started in February 1999

Citation Manual, Dept. of Family Services Page 7-F-2


Income Test Income test for kin family

Amount of Subsidy Equal to foster care rate

Eligibility of Child No age restriction Child must be in state custody Exceptions can be made if a child is at risk for going into state custody Not limited to special needs Adoption and return home must be ruled out

Eligibility of Guardian Legal guardianship or custody required Subsidized guardianship applies only when financial concerns are the single barrier to achieving legal guardianship


Review by state every 12 months Most children eligible for Medicaid or other state medical programs


80 children being served as of August 2002


97

VI: Conclusion


option that attempts to help meet the needs of the many children who are not being

raised by their parents, due to factors such as abuse, neglect, death, alcohol or

substance abuse, and teenage pregnancy. In 2002 it was reported that the percentage

of children in the United States being raised by non-parental caregivers rose to 3.5

percent, or 2.3 million children, in 1999, from approximately 3.1 percent, or 1.8 million

children, in 1997. Some of these children are in foster care, some are in kinship care,

some are in kinship foster care.

Subsidized guardianship is therefore a kinship care option, and one that is of

particular importance to older kin caregivers. Approximately two-thirds of kinship

caregivers are grandparents. Over 75% of kinship caregivers are women. Kinship

caregivers tend to be older than the average parent: approximately one-quarter are over

the age of 60. As a result, kinship caregivers are more likely to have health-related

problems than are most parents. Nearly 40% of kinship families live below the federal

poverty level compared with 20% of families overall.

Kinship caregivers often do not wish to terminate the parental rights of the child=s

biological parents, and adoption is therefore not possible. Sometimes the kin step in to

prevent the child from becoming a ward of the state, yet the kin do not have the financial

resources to raise the child. Many children go into the foster care system, which

provides for board and maintenance and medical care, but does not offer permanency.

Data, though limited, indicates that many kinship foster care families face a variety of

unique challenges in their roles as caregivers, because unlike non-kin foster parents, kin


98

usually receive little if any advance preparation prior to assuming their role as caregivers.

Research has also documented that kin foster parents are on average older, more likely

to be single, more likely to have less education and lower incomes than non-kin foster

parents. They are also less likely to report being in good health.

Most subsidized guardianship programs seek to provide permanency to children

currently in foster care who have the opportunity to be raised by kin. Subsidized

guardianship does not terminate parental rights, yet provides a permanent living

arrangement for children, financial assistance often equal to the foster care rate, and

often provides supplemental social services or support services. As of April 2003, it is an

option offered by 36 states, including the District of Columbia; 40 programs exist across

the United States at the time of this writing.113 Subsidized guardianship programs range

in size from caring from as few as 4 children (Idaho) to as many as 13,983 (Florida).

Each state has drafted its own description of subsidized guardianship, with specific

program guidelines, utilizing specific funding streams. No one program is alike, as each

state has crafted a policy to reflect its own needs in accord with its public policy.

A. Snapshot of Existing Programs

Every day subsidized guardianship policy continues to evolve across the United

States. Because of the open-ended nature of this dynamic policy, states that have not

as yet created a policy have the advantage of reviewing their own needs against the

models created by the rest of the country. A brief summary of existing programs shows

that states vary greatly in their approaches to establishing subsidized guardianship

programs.

B. Citation


99

Eleven states have statutes governing subsidized guardianship programs; 10

states list subsidized guardianship programs under code; 1 is listed under municipal

regulations; 1 under state citations; 1 under state regulations; 2 under Juvenile Court

Acts; 5 under social services guidelines; 1 under a letter; 1 under an assembly bill; 3

under IV-E waiver citation; 1 under no listing.

113 This paper was completed in April 2003.

C. Income Test

States vary in their approaches to income tests. Alaska and South Dakota test

the income and assets of both the child and the guardian. Connecticut, Louisiana,

Georgia, and New Mexico test the income and assets only of the child. Hawaii, Oregon,

Nebraska, Massachusetts, Missouri, Montana, and West Virginia only test the child=s

income. Pennsylvania, Idaho, Indiana, Montana, and New Jersey (for one of its two

programs) only test the child=s assets. Delaware and Washington D.C., only test the

guardian=s income. Maryland, Missouri (for its grandparents program) and New Jersey

(for one of its two programs) only test the guardian=s assets. Minnesota, North Carolina

and Wyoming only test the kin family=s income.

D. Amount of Subsidy

States vary in their approach to subsidies. 12 states have payments equal to the

foster care rate; 5 have payments equal to adoption subsidies; 1 has payments higher

than the adoption subsidy; 16 states have payments less than or not to exceed the foster

care rate; 1 has payments of half the foster care rate; 1 state has payments equal to the

TANF rate; 1 state=s payments vary by county, with some counties paying more than the

foster rate, and some less than the foster rate.

E. Eligibility of Child


100

States also have different requirements for the child=s eligibility. Some have a

lowest age, as well as a maximum age for entry into the program; some states make

exceptions for the age requirement if the child is part of a sibling group; some states

make exceptions to the age requirement if the child is in school full time. In some states

adoption or a return home must be ruled out prior to establishing subsidized

guardianship; some states require the consent of the child if the child is over age 14;

some states only accept special needs children; many states only accept a child if the

child is a ward of the state.


101

F. Eligibility of Guardian

A few states have minimum age requirements for the guardian; some have

maximum age requirements; some require the guardian to be a blood relative,

sometimes within a certain degree of separation; other states only require that the child

have an attachment to the guardian.

G. Post-Guardianship Services

Once the guardianship has been established, many states provide medical care

for the child; some provide in-home services, some provide respite services to the

guardian, especially those guardians who are older and who are caring for very young

children; some states provide daycare or childcare; some provide transportation. Most

states review each case every 12 months; Florida reviews every 6 months, Illinois at

least every 24 months.

H. Identifying a Funding Stream


essential step in analyzing its feasibility. Generally, the federal government does not


guardianship program. The states opting to share the cost of subsidized guardianship

have had two main options, the TANF Block grant and Title IV-E waivers. As of April

2003, 10 states utilize TANF funds for subsidized guardianship programs: California,

Florida, Georgia, Indiana, Kentucky, Louisiana, Nevada, New Jersey, Oklahoma, and

Wisconsin.

As of April 2003, at least six states currently have subsidized guardianship

programs using the waiver: Illinois, Maryland, Montana, New Mexico, North Carolina,

and Oregon. However, the application period for IV-E demonstration projects is now


102

closed.

Utilizing state or local funds for subsidized guardianship is the most common

funding stream. Twenty-one states and the District of Columbia have gone this route:

Alaska, Arizona, Connecticut, Delaware, the District of Columbia, Hawaii, Idaho, Iowa,

Kansas, Massachusetts, Minnesota, Missouri, Montana, Nebraska, North Dakota,

Pennsylvania, Rhode Island, South Dakota, Utah, Washington, West Virginia, and

Wyoming.

I. Final Thoughts

Whether a state can afford to finance a subsidized guardianship program is a

matter for review; of equal importance to budgetary considerations is whether a state can

afford to ignore the rising tide of the human needs of many citizens which subsidized

guardianship policy seeks to address. The trend of children being raised in no-parent

households, often after termination of parental rights, is a trend that shows no sign of

reversal. Subsidized guardianship seeks to provide permanency to these children and a

financial subsidy to their caregivers, thereby offering to children in need the opportunity

to reach adulthood in safety, with basic support mechanisms in place. Subsidized

guardianship is a kinship care option that demands serious consideration.

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