Throughout the early development of the Federal foster care system, child welfare policies ignored the role of kin caregivers. If States provided assistance to kin caregivers, they did so through income assistance programs, thus effectively keeping them out of the child welfare services and payment systems. In large part, this was due to child welfare services’ focus on the nuclear family and emphasis on ensuring that children lived safely with their biological parents. Also, some child welfare officials believed that abusive parents were the product of dysfunctional families and that placing children in the care of relatives would not ensure the children’s safety. When child welfare agencies had to place children outside of their homes, they ignored extended family members, placing children in non-kin foster homes, group homes, or institutions.
In the late 1970s and 1980s, as more children in need of foster parents entered the child welfare system, States began to consider kin a viable option. Around the same time, Congress passed two laws that played a key role in altering States’ use of kin as foster parents. First, through the Indian Child Welfare Act of 1978, Federal policy acknowledged the beneficial role that kin can play for Indian children. The law stated that in Native American placements, a child should be “within reasonable proximity to his or her home . . .” and that States should aim to place the child with “a member of the Indian child’s extended family. . . .” Second, the Adoption Assistance and Child Welfare Act of 1980 mandated that when placing children in foster care, States should find the “least restrictive, most family-like setting available located in close proximity to the parent’s home, consistent with the best interests and special needs of the child.”15 Many States interpreted this act as an unstated preference for the use of kin as foster caregivers, and several States began to enact laws that explicitly preferred kin. As a result of these laws and rising caseloads, States began placing more children with kin in the foster care system, despite the fact that the system was not designed to meet the needs of kinship caregivers.
To receive Federal foster care funds, States are required to establish and maintain standards for foster family homes that are “reasonably in accord with recommended standards” and apply such standards to all homes receiving Federal funds.16 In addition, most States used existing supervision and permanency planning standards designed for non-kin foster parents to assess and monitor kin caregivers. They also had to decide if and how kin would be compensated financially.
Initially, some States did not pay public kinship families as much as they did non-kin foster parents, often referring kin caregivers to AFDC for income assistance. The resulting financial inequity between payments to kin and non-kin foster parents gave rise to a class action suit against the State of Illinois that dramatically affected payment policies to public kinship caregivers. In 1973, these caregivers sued the State for refusing to provide them with a foster care payment. The primary issue was whether Congress intended relatives to be paid the same foster care maintenance payments as non-kin caregivers. In the 1979 landmark decision of this case, Miller v. Youakim, the Supreme Court determined that, at least for relatives who are caring for title IV-E-eligible children (see Figure 1), States are obligated to make the same foster care maintenance payments to kin as they make to non-kin foster parents, and States are entitled to Federal reimbursement for a portion of those payments.17 In contrast, States have discretion in determining how to compensate kin caring for non-IV-E-eligible children and kin who do not meet certain State licensing requirements.
Figure 1. Title IV-E Eligibility
Federal financial assistance is available to States if a child in care meets the following requirements:
- The child meets the definition of a dependent child (as defined July 16, 1996).
- The physical removal of the child from his or her home resulted from a voluntary placement agreement or a court determination that continuing in the home was contrary to the welfare of the child, and reasonable efforts had been made to prevent or eliminate the need for removal.
- The child’s placement and care are the responsibility of the State agency.
- The child is placed in a facility or home that has been licensed or approved by the State agency.
- When the voluntary placement agreement was signed or court proceedings were initiated, the child either received AFDC or would have been eligible to receive it.
Source: Section 472 of the Social Security Act.