Michigan Quietly Embraces Unlicensed Kinship Caregivers

In 2003, I was assigned to represent five young children in foster care who had been placed in a group home in Maryland. During my first visit with them, they told me how much they wanted to live with their grandmother, a delightful, gregarious woman with a big smile who was deemed appropriate by everyone who met her.

Yet for weeks, the kids languished in a strange, unfamiliar facility simply because she didn’t have the money to buy them beds. The child welfare agency claimed it would take up to a month for them to process a payment to buy the beds. Until then, they said, nothing could be done.

Vivek Sankaran
Vivek Sankaran, University of Michigan Law School

Variations of this story are repeatedly heard across the country. When a child must enter foster care, the system rightfully looks to relatives to care for their kin. Yet, these relatives might lack the resources to take on additional children, particularly when large sibling groups are involved. Without financial support, they might be unable to care for the kids.

After kids are placed with them, they may struggle to pay for food, day care, clothing, activities and the panoply of other expenses children necessitate. And in many states and counties, only those relatives who become licensed foster parents – a lengthy process that requires classes, home inspections and a background check – can receive any meaningful financial assistance to care for children.

Last week, the Michigan Department of Health and Human Services unceremoniously announced a major policy change that actually might address these problems. Starting on April 1, 2019, the state will offer a subsidy to all relatives caring for children in foster care, regardless of whether they are licensed or not.

This policy – enacted to comply with a recent federal court ruling – will enable more relatives to care for children and stabilize kinship placements after they happen. It will also allow more kin to offer themselves as long-term permanency options if kids cannot go home.

This is precisely the type of upfront financial investment that will yield significant long-term cost savings created when children no longer bounce from one foster home to another and exit foster care without any permanency.

This change – while significant – should be the first of many as we rethink the important role relatives must play in the foster care system. First, at the outset of a case, agencies must do the significant outreach required by the Fostering Connections to Success and Increasing Adoptions Act of 2008 to identify, consult and offer relatives the opportunity to care for children entering foster care. As part of this obligation, agencies must inform relatives that if they are unwilling to care for the children immediately, it may be difficult – or impossible – to get the children placed with them at a later stage of the case. Additionally, states should allow relatives to care for children, regardless of whether they are licensed or not, so long as they can safely care for them.

Second, courts must ensure that relative caregivers have a voice in the court process. Again, federal law requires all foster parents to have the opportunity to attend court hearings and provide information to the court. Yet in practice, this doesn’t always occur. To get family members engaged in the process, we must give them a voice.

Third, if children cannot safely be reunified with their birth parents, we should look to relative caregivers to identify the permanency option that works best for their family. Too often, even when children are living with extended family, the child welfare system enters its default mode that parental rights must be terminated and adoptions must be pursued.

Yet for many families, this approach makes no sense. Grandparents may not be interested in terminating the rights of their children. Family members might want the children in their care to have continued relationships with their birth parents. And children often wish to see their parents, even if they cannot return to their parents’ care.

Federal law allows this. The Adoption and Safe Families Act plainly states that a state need not file a termination of parental rights – no matter how long a child remains in foster care – if a child is living with relatives. Additionally, the federal government offers funds to subsidize guardianships with relatives when such an arrangement serves the child’s best interest. Rather than preordaining adoptions as the only appropriate permanency option, we should give relatives the right to determine what option is best for the children in their care.

Fortunately, my clients quickly left their group home into their grandmother’s care. A creative supervisor encouraged me – a young naïve lawyer – to simply buy the beds for the children and ask the court to order the agency to reimburse me. An unconstrained and creative judge agreed.

So immediately after the hearing, I journeyed to a furniture store in the suburbs of D.C. and bought several bunk beds. A few hours later, five kids returned to their grandmother’s house. And eventually, I got my money back.

Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School. Follow him on Twitter at @vivekssankaran.


Learn more about the federal rule change on funding legal representation for families in our exclusive webinarA New Era of Funding Family Justice, with Leslie Heimov and Vivek Sankaran on Feb. 21st. Hosted by John Kelly, Editor-in-Chief for The Chronicle of Social Change.

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