Report to the Congress on Kinship Foster Care. Legal Challenges


Litigation has played a large role in influencing states’ payments and services to public kinship caregivers (Figure 4). As mentioned previously, the landmark decision of Miller v. Youakim determined that kin who care for IV-E-eligible children and who meet the same State licensing standards as non-kin foster parents are entitled to the same Federal foster care benefits as non-kin foster parents. Two important considerations for States resulted from this ruling. First, though the case established payment equity for children who are eligible for title IV-E, the Court was silent on how States should pay for non-IV-E-eligible children in public kinship homes. Second, because this ruling was based on the language Congress used in the Social Security Act rather than on constitutional issues of equal protection or due process, the impact of the decision did not extend to States’ financing of relatives caring for non-IV-E-eligible children in foster care.

Figure 4. Court Cases Affecting Public Kinship Care

Cases Affecting Payment

King v. McMahon, 230 Cal.Rptr.911 (1986)

California’s policy of denying State foster care payments to relative caregivers was challenged on constitutional grounds. The Court of Appeals found that the State’s “denial of benefits to children provided foster care by relatives is rationally calculated to achieve the goal of providing the maximum amount of needed foster care with available public funds” (CRS-22).


Lipscomb v. Simmons, 962 F.2d 1374 (9th Cir. 1992)

Plaintiffs argued that Oregon’s denial of State foster care payments to kinship caregivers (for children not eligible under title IV-E) amounted to a violation of equal protection. The Circuit Court disagreed, finding that the policy was a legitimate way of maximizing the use of limited State funds so they could be used for foster care children without relatives to care for them.

Doe Children (1992)

The Hawaii Family Court made the only known decision in which the State must provide the same payment for all children (both IV-E-eligible and non-IV-E-eligible) in its custody, as “the needs of these children do not vary according to whether or not their foster parents are relatives or non-relatives.” Denying foster board payments to relative caregivers discourages them from becoming caregivers and is inconsistent with the goal of maintaining the family unit.

Cases Affecting Services

Eugene F. v. Gross, No.1125/86 (N.Y. Sup. Ct., filed 1986)

This suit alleged that New York City did not provide adequate support and services to relative caregivers or inform them about the supports available to them. The case has not yet been decided, but it has greatly influenced kinship care policy in New York by increasing the benefits available to kinship caregivers.

L.J. v. Massinga (1991)

This decision required Maryland to provide children in kinship care with equal access to specialized services that had previously been available only to children in non-kin foster care.

Subsequent State court decisions, such as King v. McMahon and Lipscomb v. Simmons, have reaffirmed this position, concluding that the Constitution does not oblige States to support public kinship families within the foster care system. To date, only one State case (Doe Children in Hawaii) has determined that kin have to be compensated at the same rate as non-kin, regardless of the IV-E status of the child.

Litigation has also affected the services provided within the foster care system. Specifically, some States have provided fewer services and less support to public kinship caregivers than to non-kin foster parents. Several States have been involved in litigation that addressed such inequalities (for example, Eugene F. v. Gross).

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