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Kinship Care Providers: Some Permanency Options

from Winter 2001 Adoptalk

by Ana Beltran

Ana Beltran is the director of Generations United's (GU) Grandparents and Other Relatives Raising Children project, which includes GU?s new federally funded national network of support groups for relatives caring for kin in foster care (KinNET). Based in Washington D.C., GU is a unique national nonprofit membership organization whose mission is to promote intergenerational public policies and programs.

In the last 25 years, more and more people have assumed responsibility for raising their relatives' children. Between 1990 and 1998, the number of grandparent-headed households where neither parent was present increased by 53 percent (U.S. Census Bureau, 1998). Of the estimated 2.1 million children being raised solely by grandparents and other relatives, more than 150,000 are in the foster care system (U.S. Department of Health and Human Services, AFCARS, October 2000 estimates). Kin caregivers, whether they are caring for children inside or outside the formal foster care system, often need to consider permanency options such as adoption, guardianship, and legal custody. This article explains some of the key differences among these options.

Background

Adults of all ages become kinship care providers for reasons that cut across every category of race, background, and income. Parental substance abuse is often a factor. Other factors include incarceration, teenage pregnancy, contraction of HIV and AIDS, death, and mental illness. Consider the single, African American woman in Philadelphia who has raised her 11-year-old granddaughter since the girl appeared one day at her front door. The girl had walked five miles to get there because she could no longer stand her mother's beatings. In California, an affluent white couple is raising two grandchildren. The children's parents are both addicted to drugs. Another African American grandmother is raising her teenage grandson in rural Tennessee because his parents died in a car accident.

U.S. Census Bureau statistics from 1998 offer other evidence of relative caregivers' geographic and cultural diversity.

  • Children live in grandparents' homes throughout the U.S. Many (43 percent) are being raised in the South.

  • Children in grandparent-maintained households live in the suburbs (20 percent), non-metropolitan areas (41 percent), and central cities (39 percent).

  • Of all children living in grandparent-maintained families, 44 percent are white, 35 percent are black, and 18 percent are Hispanic.

Permanency Options

No matter what their backgrounds, or whether they are inside or outside the foster care system, relative caregivers often face challenging decisions about adoption and other permanency options. For caregivers within the system, the Adoption and Safe Families Act (ASFA) applies. ASFA promotes permanent placements for children in foster care, and authorizes states to consider a child?s placement in a relative foster home as permanent. However, because annual permanency planning hearings are held for all foster children, the child can still be removed from the relative placement and placed elsewhere.

Caregivers outside the system who have not gained legal responsibility for a child through adoption, guardianship, or legal custody often have trouble accessing services and programs. They may not be able to consent to medical treatment for the child, add the child to private health insurance coverage, or enroll the child in federal health coverage through Medicaid or the Children's Health Insurance Program. Caregivers may also have problems enrolling children in school.

Limited access to services and programs can prompt relative caregivers to adopt, become guardians, or gain legal custody. Many caregivers are reluctant to take these steps, however, because the actions entail a court proceeding. The caregiver must sue the child's parents—one of whom is the caregiver's relative—to prove that they are unfit and that adoption, guardianship, or legal custody is in the child?s best interest. This adversarial situation can forever tear a family apart.

Before deciding which status to pursue, all caregivers should understand the practical and legal distinctions of each option.

Adoption

One critical difference between adoption and other permanency options is that adoption severs all of the birth parents' rights and responsibilities, and turns the relative caregiver into the legal parent. As a legal parent, relative caregivers can access services for children and be assured that the birth parents cannot reclaim parental rights and responsibilities. Unfortunately, caregivers who adopt are no longer eligible for some forms of financial assistance, including TANF (Temporary Assistance for Needy Families) "child-only" grants.

On the other hand, children adopted from foster care who have special needs may be eligible for federal or state adoption subsidy payments. Each state sets its own definition of special needs and thus determines who is eligible for federal and state money. Commonly, factors such as a child's minority status, mental or emotional disabilities, and status as a sibling group member qualify as special needs. Subsidy payments also vary between states, and in many states adoption subsidy payments are lower than foster care payments. Prospective adopters should check their state?s policies and rates.

In practice, adoption can work well for relative-headed families. After one family adopted their grandchildren, the children became eligible for the grandfather's military benefits. In addition, the birth parents came to feel less guilty about their inability to raise the children, and were able to more positively interact with them.

Open Adoption

Open adoption is a type of adoption that can also work well for relative-headed families. Rather than going to court and suing for adoption by proving that the parent is unfit, the caregiver, parents, and child develop an enforceable agreement that sets forth the terms (type, frequency, and duration) for post-adoption contact. At least 12 states (California, Florida, Indiana, Minnesota, Montana, Nebraska, New Mexico, New York, Oregon, Rhode Island, Washington, and West Virginia) have some form of open adoption law.

Guardianship

The most significant difference between adoption and guardianship is that guardianship does not sever birth parents' rights and responsibilities and caregivers do not become parents in the eyes of the law. Guardianship of a child means that a caregiver is responsible for the child?s care and custody. As a child's guardian, caregivers can usually access services for the child?including health care and education. In a legal sense, however, guardianship is a more temporary arrangement than adoption. Birth parents can sue guardians to regain custody, and guardianships typically end when a child reaches age 18.

Some states have created "permanent" guardianships that are difficult to terminate. Oregon, for example, has a permanent guardianship status that the juvenile court can grant after it is convinced that the child's best interests will be served if the birth parents never have physical custody of him or her. Once the court grants a permanent guardianship, birth parents cannot petition the court to terminate the guardianship.

There is no federal subsidized guardianship program that mirrors the adoption subsidy program. At present, eight states have five-year waivers from the U.S. Department of Health and Human Services to use Title IV-E funds to test the feasibility of subsidized guardianship programs. Another 16 states have programs that are funded using either state funds or federal TANF funds.

Within those 24 states, subsidized guardianships are typically designed for children who have been in state custody. As with any guardianship agreement concerning a child in foster care, subsidized guardianships transfer a child?s custody from the state to the guardian. After the court approves the guardianship, the state issues a monthly subsidy check to the guardian. Because, like adoption subsidies, these monthly payments may be less than the state?s foster care rate, caregivers who are considering this option should find out if their state runs a subsidized guardianship program, and on what terms.

A few states—including Florida, Louisiana, and Missouri—are implementing other creative financial support programs. Their programs are similar to subsidized guardianship programs, with the notable exception that children do not need to be in state custody for families to qualify. Missouri has a "Grandparents as Foster Parents" program in which grandparents or other relatives who become legal custodians or guardians and attend foster parent training are eligible to receive monthly subsidy payments. Despite the name of the program, the relative caregiver does not become a foster parent, and there are no income restrictions for the caregiver to participate; only the child?s income is considered. The maximum monthly payment is the same as Missouri's foster care rate.

Guardianship can be a good option for relative-headed families who want to provide the children they raise with permanency, but do not want to terminate their relatives' parental rights. In addition, for families in cultures that do not believe in adopting kin, guardianship is a useful alternative.

Legal Custody

Legal custody is similar to guardianship, but is usually granted by a different court that has different procedures. Probate courts usually grant guardianships; family courts grant legal custody. Also, the status of "guardian" often facilitates access to more services and rights than legal custodian. Consider, for example, how many times one reads or hears the phrase "parent or guardian" without any mention of "legal custodian."

Other Options

In some states, informal caregivers who choose not to adopt or become guardians can take advantage of laws that make it easier to access medical treatment and educational services for children. California has an educational and medical consent law that allows an informal caregiver to complete an affidavit stating that he or she is the child's primary caregiver. The school or medical provider then accepts the affidavit, and enrolls the child or provides treatment. California's law is unique in that caregivers need to complete just one affidavit for school and medical purposes.

A few other states, including Delaware and North Carolina, have educational consent laws. More states, about 24, have some form of medical consent law. The laws differ in various ways, including the types of treatment (medical, dental, and/or psychological) the caregiver can consent to and whether the caregiver must provide consent orally or in writing.

Conclusion

As more and more adults assume responsibility for raising their relatives' children, options for gaining legal rights and obtaining financial support become increasingly important. Professionals who work with relative caregivers, including public agency workers, may encourage caregivers to pursue a particular legal status, but caregivers must seriously consider the merits and drawbacks of each option before making a final decision. For all those who take on the important task of parenting a relative's child, a clearly reasoned permanency decision will help to ensure both their well-being and that of the children they raise.


National Resources for Relative Caregivers

AARP's Grandparent Information Center has a database of more than 700 caregiver support groups throughout the U.S., and can help identify a local group or establish a new one. Contact AARP at 601 E Street NW, Washington, DC 20049; web: www.aarp.org/grandparents.

Children's Defense Fund (CDF) has very useful materials about the Adoption and Safe Families Act of 1997 available on its web site at www.childrensdefense.org.

Generations United (GU) produces and disseminates publications related to kinship care, tracks state laws and programs, educates policy makers, trains direct service providers and other professionals who work with families, and is establishing KinNET—a network of support groups for relatives caring for kin in foster care. Contact GU at 122 C Street, NW, Suite 820, Washington, DC 20001; 202-638-1263; e-mail: gu@gu.org; web: www.gu.org.

National Conference of State Legislatures (NCSL) has a publication entitled A Place to Call Home: Adoption and Guardianship for Children in Foster Care. To order, contact NCSL at 303-830-2200, or visit www.ncsl.org.

North American Council on Adoptable Children (NACAC) has state-by-state subsidy information on its web site (www.nacac.org/adoptionsubsidy/adoptionsubsidy.html), and runs a subsidy information help line at 800-470-6665.

 


North American Council on Adoptable Children (NACAC)
970 Raymond Avenue, Suite 106
St. Paul, MN 55114
phone: 651-644-3036
fax: 651-644-9848
e-mail: info@nacac.org
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