Kinship Diversion: Policy and Practice Implications for Children and Families

1. Legal Impact Network for Kin (LINK) Webinar - Supported Diversion March 9, 2016 Mary Bissell, Esq., ChildFocusMartha Matthews, Esq., Public CounselChristie Marra, Esq., Virginia Poverty Law CenterAna Beltran, Esq., Generations UnitedLisa Butts, ChildFocus

2. Thank you The Legal Impact Network for Kin (LINK) and this webinar are made possible by the Annie E. Casey Foundation. We thank them for their support.

3. Housekeeping Audio • To hear the presentation, select either MIC & SPEAKERS to listen through your computer speakers or TELEPHONE. • The dial-in information is under the “audio” tab on the right hand side of your computer screen and in the email with the log-in information. • If you use your MIC & SPEAKERS, your audio is automatically muted throughout the presentations. • If you use your TELEPHONE, we ask that you mute yourself so as to prevent feedback. Q&A • There will be plenty of time for your questions at the end of the presentations. • At any time, you can type your questions in the “question” box on the bottom right hand side of your screen and we will ask them of the presenters at the end of their presentation. • If you use your TELEPHONE, you will be able to ask questions orally at the end of presentations. The webinar recording and PowerPoint slides will be available early next week on http://www.grandfamilies.org/RESOURCES/LegalImpactNetworkforKin-LINK.aspx

4. The Kinship Diversion Debate: Policy and Practice Implications for Children, Families and Child Welfare Agencies • Based on 50 interviews with child welfare agency representatives, caregivers, lawyers, judges, state and national advocates and policy makers • www.aecf.org

5. National Working Definition of Kinship Diversion? • Child welfare agency investigates a report of child abuse and neglect • Agency determines a child cannot remain safely with parent • Agency facilitates child’s ongoing care with relative instead of bringing a child into state custody OR • Court decides to dismiss petition and allow child to live with a relative • Approximately 400,000 children diverted from system each year – possibly higher • Almost all jurisdictions engage in some type of diversion – level of services offered to families varies widely

6. Kinship Diversion Project Goals • For agencies who oppose kinship diversion, what is the rationale and how are these jurisdictions meeting family needs through licensed kinship foster care and other alternatives • How are agencies who support kinship diversion: • Ensuring safety and permanence for diverted children and their families; • Offering services and financial support to children, birth parents and relative caregivers; • Protecting birth parents rights and safely facilitating reunification whenever possible; and • Providing families with comprehensive information about all state-supported options

7. Kinship Diversion: Arguments FOR • Whenever possible, kinship diversion is preferable option for children and families • With the right supports, families are better able to care for children without the complications and uncertainty of government involvement • Some relatives are safe but would not qualify for licensing as foster parents

8. Kinship Diversion: Arguments AGAINST • Relatives are being unfairly pressured into caring for children without understanding their options or receiving appropriate services and financial support • Without the protections of foster care, birth parents are not being given a fair chance at reunification • Many relatives lack a legal relationship with the child and therefore cannot access services • Few jurisdictions systematically track and analyze impact of diversion on children’s safety, permanence and well-being

9. Is There a “Middle Ground”? • Is there a supported kinship care diversion model that would be: • limited to certain types of cases; and • provide an alternative to state custody while ensuring both safety and the needed services to get families back on track? • If so, what kinds of situations are appropriate for kinship diversion? • What types of supports should be provided and how should they be funded? • Are there any jurisdictions currently using a supported diversion model? If so, what do those models look like? • How do jurisdictions with supported diversion models ensure that they are only used for the “cases in between” and not as a default?

10. Key Elements of Supported Diversion • Appropriate risk assessment • Team decision making and full disclosure of options • Appropriate needs assessment and services for kinship care triad (kin, child, parent) • A “way home” for birth parents via reunification services • Caregiver legal status and permanency considerations • Appropriate tracking of diverted children and families

11. Potential New Federal Role in Supported Diversion? The Family First Act: • Bi-partisan Senate Finance Committee bill • Has several kinship care provisions, including: • Opening up federal Title IV-E foster care funding on a time-limited basis for child or youth who is a “candidate” for foster care • Allows states to draw down federal funding for specific service array (short-term financial support and kinship navigator services) for kin caregivers • Provides enhanced support under Title IV-B for short-term crisis intervention assistance to stabilize a family or facilitate a kin placement

12. Food for Thought • Is supported diversion an acceptable alternative? If so, when should it be used? What are its most critical elements? • Is kinship diversion used by the child welfare agency in your jurisdiction? What are its advantages and limitations? • What national, state and local funding sources can jurisdictions use to pay for supported diversion?

13. ‘Kinship diversion’ in California During or after a child abuse/neglect investigation … • Diversion to Voluntary Placement Agreement (VPA) –child welfare agency asks parent to enter into VPA where child lives with a relative while parent receives services. • Diversion to informal kinship care – child welfare agency tells family that if child lives with a relative, no dependency case will be filed. • Diversion to probate guardianship  - child welfare agency tells family that if relative obtains guardianship, no dependency case will be filed. How prevalent are these forms of diversion?

14. Diversion – available data In 2014, there were about 500,000 reports of child abuse/neglect in California. • 17% (about 82,000) of these were substantiated – the rest were evaluated out, or investigated and closed as unsubstantiated or inconclusive. • Of the substantiated reports, 39% (about 32,000) resulted in foster care entries. What happened to the other 50,000 children with substantiated abuse/neglect reports?

15. Court-ordered vs. voluntary cases As of January 2015, there were about 95,000 open cases in California. • About 77,000 were dependency court cases • About 14,000 were ‘voluntary’ cases • About 7000 of the voluntary cases were “no placement family maintenance” cases, and about 6000 were “permanent placement” cases. What is a ‘voluntary permanent placement’ case?

16. A local perspective … • Los Angeles County probate court guardianship clinic – assists over 2000 caregivers (mostly relatives) each year. • Clinic staff estimate that 25% or more of these caregivers have been referred by DCFS, and told they must obtain guardianship or a dependency case will be filed. • Almost all are low income, many caring for children with special needs and/or large sibling groups.

17. Case example Robin’s brother died suddenly, leaving four children, ages 4, 5, 7 and 10. (The children’s mother had lost custody to father in a dependency case several years ago.) Robin and her husband are retired, and live in a 2-bedroom apartment with Robin’s elderly mother. The child welfare agency encouraged Robin to take custody of the children. The agency told Robin that her home was too small to be approved as a foster care placement, so she should get probate guardianship instead. The children were grieving and traumatized, and had many unmet needs. The youngest two frequently wet the bed and their clothing. All the children needed clothes, shoes, and school supplies. The agency bought a washer and dryer for Robin, but they were placed in storage because they did not fit in her apartment.

18. Case example, continued Robin was granted guardianship. She tried to apply for CalWORKs and CalFresh for the children, but was denied because they received about $300 each in Social Security Survivor benefits. These benefits plus Robin’s retirement income were not enough to meet the family’s monthly expenses. Robin asked the agency for help, but the agency refused to open a case (stating that the children could not be placed with Robin because her home was too small.) She filed a JV210 petition asking the dependency court to review the case, and the same decision was made.

19. Legal authority for diversion? • VPAs are authorized under California law (Welf. & Inst. Code §§ 301, 16506, 16507.3) and are limited to 6 months, after which time the child welfare agency must either close the case or file a dependency petition. • The other forms of diversion (to informal kinship care and probate guardianship) have no explicit statutory basis. Are they legal?

20. Probate Code § 1513 • Authorizes probate court to refer case to child welfare agency for investigation if guardianship petition or investigation shows child may be “a person described by Welf. & Inst. Code § 300” [abused or neglected]. • May limit child welfare agencies’ ability to divert cases to probate guardianship …

21. Guardianship of Christian G. (2011) 195 Cal.App.4th 581 • Discusses lack of due process protections for parents in guardianship cases. • Holds that probate courts must invoke Probate Code § 1513 and order a referral to the child welfare agency when guardianship case involves allegations of parental unfitness.

22. The “diversion dilemma” Diversion should NEVER be allowed! • Child welfare agencies should either find that a child is at risk of abuse/neglect, and file a dependency petition -- or find that a child is not at risk of abuse/neglect, and leave the family alone. OR, Diversion should ALWAYS be allowed! • Families should be empowered to ‘take care of their own’ and dependency court cases should be filed only if there is no relative willing and able to care for the child. Is there a middle ground?

23. Pros and cons of diversion Pros Cons • Family in control of legal process and placement decisions. • Child not stigmatized as “in the system.” • No finding of abuse/neglect or court case against parent. • Foster home licensing standards do not apply. • Lower benefits (TANF vs. AFDC-FC) • No Independent Living preparation or extended foster care for transition-age youth. • No services (child care, respite, therapy, wraparound, etc.) for caregiver . • No reunification services, hearings for parents. • No tracking of long-term safety, wellbeing of child.

24. Pros and cons of dependency Pros Cons • Higher benefits (AFDC-FC). • Benefits and services for transition-age youth. • Services and case management for child. • Reunification services for parent and process for reunification/permanency decisions. • Attorneys for parent and child • Child welfare agency and court—not family—make placement decisions and plan for child’s future. • Kinship caregiver may be unable to meet foster home licensing standards, and child placed in nonrelative foster care or group home.

25. Virginia’s Diversion Dilemma A Presentation By the Virginia Poverty Law Center Christie marra Staff attorney Christie@vplc.org 700 E Main St. Suite 1410, Richmond, VA 23219 T: 804-782-9430 F: 804-649-0974

26. VPLC The statewide support center for legal aid in Virginia providing support in advocacy training litigation on the civil justice issues faced by low-income Virginians

27. Virginia Definitions • “Kinship Diversion” = A strategy to prevent foster care placement by engaging caregivers in a process to identify relatives and non-relatives who can provide short-term care for their children • Virginia Department of Social Services Prevention Manual (Sec. 1.8) • “Kinship Care” means the full-time care, nurturing and protection of children by relatives • Virginia Code 63.2-100 • Virginia Code 63.2-900 requires local agencies to seek out kinship care as an option to keep children out of foster care • Virginia has one of lowest rates of relative foster care in nation (approximately 5% of youth in foster care are with relatives)

28. 2010 Child Trends Study Looked at use of diversion in 6 localities Interviewed child welfare administrators, kinship caregivers, caseworkers, supervisors, judges, court personnel, attorneys and CASAs Found that kin diversion is always considered first and does not differ due to severity of abuse/neglect, age of child or other factors Found localities had no common practice; cases open for 30 days to two years; very rare to follow up after case closed Found there was rarely court involvement, although in some cases child protective orders were sought or local agency discussed filing custody petition with relative (potential unauthorized practice of law issue)

29. 2016 State Social Services Study • 2014: State legislature directed Virginia Department of Social Services to study kinship diversion • Specifically targeted to “policies governing facilitation of placement of children in kinship care to avoid foster care placements” • Directed VDSS to develop recommendations for regulations • Recommendations to address: • Description of legal rights and model disclosure letter • Description of process for the facilitation of custody transfer • Development of case plan • Description of funding sources for services in case plan • Process for gathering and reporting data on children’s well-being • Description of training plan for local caseworkers

30. 2016 State Social Services Study • 2016 Report: • Findings: • 2010 VDSS survey found that 94% of local agencies responding diverted children from foster care (113/120 agencies responded) • Once diverted, case is often closed with no additional tracking, case management, court oversight or connections to services • Cases often closed prematurely; additional CPS complaints only time follow-up occurs • Policy and practice vary considerably across the state • Data regarding practices and outcomes needed to determine how diversion impacts well-being of children over time • Need statutory change • Recommendations: • Implement state supported kinship care program to provide financial assistance, services, safeguards, and permanency planning • Implement Kinship Guardian Assistance Program • Develop Kinship Navigator Program

31. School Enrollment Law • Requires local public school divisions to enroll children living in facilitated kinship care even where relative custodian does not have legal custody through a court order (VA Code 22.1-3) • School MAY require the following documentation: • Affidavit signed by parent and relative explaining why the parent is unable to care for the child; detailing the kinship care arrangement; and agreeing that the relative or parent will notify the school within 30 days of when the kinship care arrangement ends • Power of attorney authorizing adult relative to make educational decisions for the child • Written verification from the local social services agency that the kinship arrangement serves a legitimate purpose in the best interest of the child other than school enrollment

32. Next step: 2017 Legislation • Creates a new process for a court to approve a facilitated kinship care arrangement • Petition for approval must be filed by the local agency that facilitated the arrangement if the arrangement has continued for more than 90 days and the agency must show: • Parent/other prior custodian consents to continuation of arrangement and to granting of joint legal custody • Kinship care arrangement is in best interests of child • Case plan has been developed and approved by the court • Case plan must be developed and filed at least five days before the hearing • If court finds kinship arrangement is in best interest of child, enters order approving and granting parent/other prior custodian and kinship caregiver joint custody • Facilitated kinship care arrangement authorized for no more than two consecutive six-month periods; after this, sole custody to parent or kinship caregiver

33. Barriers to Implementing Statewide Practice Resistance of local departments of social services; Virginia has a state-administered, locally run child welfare system Difficulty of reaching consensus among stakeholders (Local social services agencies; judiciary; family law bar; child advocacy groups) Lack of statewide subsidized custody programor other form of financial support Single term executive

34. Questions & Answers Christie Marra, christie@vplc.org Martha Matthews, mmatthews@publiccounsel.org Mary Bissell, mary@childfocuspartners.com

35. Questions about LINK Mary Bissell mary@childfocuspartners.com Heidi Redlich Epstein Heidi.Epstein@americanbar.org Ana Beltran abeltran@gu.org