LINK and SPARC Webinar 2018 Overcoming Licensing Barriers for Kin Ana Beltran, Generations United Heidi Redlich Epstein, ABA Center on Children and the Law

Legal Impact Network for Kin (LINK) Network of kinship attorneys created by ChildFocus, the ABA Center for Children and the Law and Generations United with funding from the Annie E. Casey Foundation Over 60 members in almost half the states that provide direct services for kinship families or advocate for kinship care- related laws and policy change Goals: Improve the availability and quality of free and low-cost legal representation for kinship families Create better state and federal kinship care laws and policies based on the most pressing legal challenges facing kinship families © 2018 grandfamilies.org

State Policy and Advocacy Reform Center (SPARC) Network of 48 child welfare advocates in 37 states (and D.C) designed to strengthen child welfare advocacy at the state level building the capacity of and connections between state child welfare advocates SPARC network strengthens connections among state advocates by: Forming smaller working groups focused on finding solutions to challenging problems Connecting state and national experts in the field and facilitating hands-on policy strategy, advice, research, and coaching for state partners. © 2018 grandfamilies.org

Background

Federal Licensing Requirements Federal law says little about the actual licensing of foster homes: States must designate a state authority responsible for standards States have broad flexibility so long as those standards “are reasonably in accord with recommended standards of national organizations…” “a waiver of any such standard may be made only on a case-by-case basis for non-safety standards (as determined by the State) in relative foster family homes...” States must periodically review their licensing standards 42 U.S.C. § 671 (a)(10) and (11) The federal Adam Walsh Act requires states to conduct criminal background and child abuse registry checks, 42 U.S.C. § 671(a)(20)(A) © 2018 grandfamilies.org

Origins of Project Many children in foster care are in the unlicensed care of their relatives subject to rules and restrictions limited or no support With a license (“approval” or “certification” in some states), kinship families receive: monthly financial assistance support services access to the federal Guardianship Assistance Program (GAP) in 35 states, DC and 8 tribes court and caseworker oversight Generations United and the ABA Center on Children and the Law conducted 50 state and DC survey of family foster home licensing standards © 2018 grandfamilies.org

Research Findings State standards don’t always lead to safe and appropriate placements in the best interests of the children Common Barriers: Problematic standards Varying standards Collected model language to help develop our model standards © 2018 grandfamilies.org

Problematic Standards Upper age limits Requirements to have high school diplomas and/or speak English Requirements to own a vehicle Income requirements with limitations on home businesses Potential discrimination on the basis of disability Bias against rural families © 2018 grandfamilies.org

Varying Standards Standards concerning requirements that should not vary from jurisdiction to jurisdiction like capacity, child abuse and neglect, and criminal background checks and raise questions: how are standards determined? what are the best standards? © 2018 grandfamilies.org

Undocumented Relatives

Undocumented Relatives – Federal Law Title IV-E allows placements with undocumented relatives or those living outside U.S. Relatives may provide foster care and receive IV- E foster care payments IF child is IV-E eligible Background checks for licensing are often a barrier Nothing in federal law prohibits individuals with undocumented immigration status from becoming either licensed or unlicensed foster care providers. However, many states have implemented licensing standards that either expressly prohibit approval of undocumented caregivers or create barriers to approval. 10 states have general waiver or variance provisions that may apply : CO, HI, IA, LA, NJ, NC, OK, TN, VA 8 states have an alternative approval processes that may apply: CO, HI, KY, LA, MD, NM, NC,UT © 2018 grandfamilies.org

State Standards that Prevent Full Licensure 20 states have explicit citizenship or immigration foster licensing standards that prevent full licensure of undocumented caregivers (AZ, CO, GA, HI, IA, KY, LA, MD, MA, MI, MS, MO, NJ, NM, NC, OK, OR, TN, UT, VA) In 13 states, kin with undocumented status may be able to use a waiver or variance provision or alternative approval method 5 states do not allow the citizenship standard to be waived for kin: Arizona, Georgia*, Michigan, Mississippi, and Missouri 3 states exempt kin from the citizenship or immigration standard: Massachusetts, New Jersey, and Oregon * Provisions suggest that citizenship or immigration-related standards are non- waivable. © 2018 grandfamilies.org

Other State Standards that Impact Undocumented Immigrants Many states have other foster licensing standards that may impact undocumented immigrants, such as: Language/Communication: Alabama, Arkansas, Florida, New Hampshire, Ohio, Texas State Residency: Maine, New Hampshire Request Citizenship-Related Information: Alabama, Alaska, Nevada, South Carolina, Texas 3 jurisdictions express a commitment to ensuring that immigration status does not prevent kin placements: California, Indiana, New York City © 2018 grandfamilies.org

Model Family Foster Home Licensing Standards © 2018 grandfamilies.org

The Model Standards Package of Materials NARA, Generations United, and ABA created the standards Available free of charge at www.grandfamilies.org includes: a purpose statement ten guiding principles the model standards an interpretive guide a crosswalk tool © 2018 grandfamilies.org

Model Standards Uses model language from states and from accreditation agencies like Child Welfare League of America and the Council on Accreditation Covers family foster home licensing Does not cover: licensing processes or procedures care of children after placement in a licensed home other post-licensing requirements like recordkeeping No waivers or variances needed Treatment foster home and tribal home standards: available at www.grandfamilies.org © 2018 grandfamilies.org

Purpose Statement - Summary To fulfill the public policy intent behind licensing standards, which is to ensure that children in foster care have safe and appropriate placements To fill the previous void in “national standards” To reflect community standards and be flexible so children in out of home care are placed in the best homes for them © 2018 grandfamilies.org

Categories Covered by Model Standards Definitions Basic Eligibility Physical and Mental Health Home Study Capacity Sleeping Other living space Fire safety/evacuation Additional health & safety Criminal history records check Abuse and neglect records check Assurances Pre-license training Emergency placement © 2018 grandfamilies.org

Implementation

State Efforts to Compare and Align with the Model In May 2016, South Carolina passed legislation with capacity standard language from our Model Standards, SC Act 187 Child Welfare League of America (CWLA) used the Model draft standards and the research done to develop the standards when consulting with Massachusetts. In its report issued to the state in May 2014, CWLA recommended that Massachusetts consider adopting the Model Standards.  See page 18, number 9 Provided technical assistance and crosswalked various state standards with the Model

Federal Legislation To Have States Compare and Align with the Model Two pieces of federal legislation are pending that would require states to compare and align their standards with a Model: HR 253, the Family First Prevention Services Act of 2017 HR 2866, Reducing Unnecessary Barriers for Relative Foster Parents Act © 2018 grandfamilies.org

Recent Federal Case

D.O. v. Glisson A U.S. Court of Appeals for the Sixth Circuit case important for relatives approved to care for children in Kentucky’s foster care system, with implications outside of Kentucky The Circuit Court ruled: Kentucky’s child welfare agency must pay relatives "approved" to care for children in foster care just as they do “licensed” foster parents All approved and licensed foster parents have a privately enforceable right to monthly foster care maintenance payments

Kentucky Relatives Impacted by the Case Relatives “approved” to care for children in the legal custody of the Kentucky child welfare agency “Approval” of a relative in Kentucky means:  has completed a home study and a criminal background check Is not formally licensed as a foster parent There must be an open child welfare case This decision does not impact children: adopted by their relatives whose relatives have permanent legal custody or guardianship who are cared for by relatives outside the child welfare agency

Relatives in Ohio Should Also Be Impacted Sixth Circuit decisions also impact Ohio, Michigan and Tennessee Of these, Ohio is the only state that similarly “approves” relatives and is the only state where caregivers should be impacted Roughly a third of all states “approve” relatives – so there is the possibility for other states to eventually be impacted

The Supreme Court Denied Kentucky’s Appeal Kentucky sought an appeal from the U.S. Supreme Court, which it denied in October 2017 Had the Supreme Court taken the appeal, and agreed with the Sixth Circuit, it could have impacted grandfamilies around the country Since the U.S. Supreme Court did not, the decision only applies to Kentucky, Ohio, Michigan and Tennessee

The U.S. Supreme Court May Eventually Decide a Similar Case It will never hear an appeal of this particular case, but it could hear another case in the future with the same core issue The U.S. Supreme Court likes to hear cases when several of the Circuit Courts do not agree: There was one case from the 8th Circuit that had ruled differently than the Sixth Circuit If there are other cases in the future, and there is a conflict among more Circuits, the U.S. Supreme Court may rule on this issue one day Generations United’s FAQ on Glisson case available here

Action Steps © 2018 grandfamilies.org

Compare and Align State Standards with Model Establish workgroup or taskforce: Consider what are the barriers to licensing for relatives in your state? Common barriers include: Criminal history of relative Training requirements Housing requirements like square footage, etc. Compare state licensing standards to Model Standards, using the crosswalk tool When possible, change standards to align with the Model Standards We are pursuing legislation on Capitol Hill to ask states to do this. The task force/workgroup would consist of: Agency staff Judicial representative State legislator or staff Kinship foster parent Non-related foster parent Youth in care © 2018 grandfamilies.org

Best Practices Licensing waivers or variances to be approved at the local level instead of the state level Designated kinship liaisons to help relatives through the difficult licensing process Tools, see wikiHow for Kinship Foster Care © 2018 grandfamilies.org

Role of the Legal Community Determine if your state requires relatives to be licensed in order to care for children in state custody If relatives are not licensed: Ask why and make sure it is by choice - Why is grandma safe enough to place but not safe enough to pay? Ensure relatives understand their placement options Determine if there is a barrier to licensing that can be easily fixed, e.g. new bed, fire extinguisher Ultimately it is agency decision if the relative can be licensed, the court cannot order a home to be licensed © 2018 grandfamilies.org

Role of the Legal Community, cont’d Ask about the use of licensing waivers or variances in your jurisdiction If relatives are not licensed, find out if they have all necessary supports and services to safely care for the child © 2018 grandfamilies.org

Resources

ABA Center on Children and the Law www.grandfamilies.org A collaboration of the ABA Center on Children and the Law Generations United Casey Family Programs

Additional Kinship Resources Generations United - www.gu.org ChildFocus - http://childfocuspartners.com/ Bridging Refugee Youth and Children’s Services (BRYCS), Guardianship Toolkit – http://www.brycs.org/guardianship/index.cfm © 2018 grandfamilies.org

Questions or State Assistance - Contact Us Ana Beltran, JD Special Advisor Generations United abeltran@gu.org Heidi Redlich Epstein, JD, MSW Director of Kinship Policy ABA Center on Children & the Law heidi.epstein@americanbar.org © 2018 grandfamilies.org