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Kinship Guardianship Assistance Program

A New Option for Children in Foster Care with Kin

August 18, 2011

Author:  Jamie Greenberg 1

The Kinship Guardianship Assistance Program (KinGAP) is designed to provide a new permanency option for children in foster care who have been cared for by a relative for six continuous months and for whom it has been determined that returning home or adoption are not viable options.  This additional option is valuable because: it allows the foster child to remain with a relative in a more permanent legal status than foster care in instances where the child will not be able to safely return home and adoption is not a good family option, it allows for continued financial support for the child, and it does not require that the parents’ rights be terminated. 

This article reviews KinGAP’s background, scope, eligibility, process requirements, and provisions; discusses considerations pertaining to KinGAP; and provides a listing of additional resources for professionals and family members. 

Background

KinGAP became a viable option in New York  after the enactment of the federal Fostering Connections to Success and Increasing Adoptions Act of 2008 (P.L. 110-351).  By establishing a federal funding stream (Title IV-E of the Social Security Act; also used to partially reimburse states for federally eligible foster care and adoption costs) for relatives assuming guardianship of children for whom they had been foster parents, it made relative guardianship (i.e., KinGAP) a financially viable “permanency” option in New York.  Although subsidized guardianship had been identified by many advocates and policymakers to be programmatically valuable when targeted to the right families, it never received serious legislative traction in New York prior to the potential availability of federal financial participation.

KinGAP became effective in April of this year after several milestones occurred including, but not limited to, the enactment of Part F of Chapter 58 of the Laws of 2010; Federal approval of New York’s Title IV-E Plan Amendment, which allowed for accessing the aforementioned federal funds to help support KinGAP; the filing of regulations  to implement the provisions of KinGAP; the issuance of an administrative directive, 11 OCFS-ADM-03 by OCFS, which provides implementation details about the program’s administration, including required and model forms and notice letters; and the development by the Office of Court Administration of Family Court Petition 6-1-c, and Family Court Order 6-5-a, pertaining to the appointment of a kinship guardian (see the last section, “Additional Resources” for links to some of these documents).

Scope

The availability of KinGAP is limited to children who are part of the formal child welfare system and are in the legal custody of a local social services district (LDSS), including the Administration for Children’s Services (ACS) in New York City.  The majority of such foster children were abused or neglected in their home of origin, although they may have alternatively entered foster care as a result of a voluntary placement, a Persons in Need of Supervision (PINS) or a Juvenile Delinquency proceeding.  If a relative becomes the direct custodian (as opposed to an approved or certified foster parent) of a child, even if the child became known to the local social services district through one of the abovementioned circumstances, KinGAP is not an option.  Moreover, for the much larger universe of children cared for by grandparents and other relatives unknown to the formal child welfare system, KinGAP is not an option.

As of December 31, 2010, there were approximately 6000 children in foster care with their relatives, most of whom (87%) were in the custody of ACS.  There were about 800 foster children in foster care with relatives in the custody of all LDSSs outside of New York City. 2  Many of the children in relative foster care are not currently, and may never be, appropriate and eligible for KinGAP because they will be able to be safely returned from foster care to their home of origin or, if they are unable to safely return home, adoption will be determined to be the more appropriate permanency option for the child. 

While the scope of the program is somewhat limited, it can be the best permanent option for appropriately targeted foster children living with relatives.  A significant number of such foster children will not be able to be returned safely, and adoption will be assessed not to be a viable option for a number of possible reasons including that the caretaking relative and/or the child feel strongly that adoption is not an appropriate outcome given family circumstances and dynamics.  Prior to the availability of KinGAP, a relative could pursue and achieve guardianship pursuant to Article 6 of the Family Court Act or Article 17 of the Surrogate’s Court Procedure Act; however it could not be subsidized and the relative foster parent would have to forego the foster care stipend, clothing allowance and perhaps needed services received through foster care.  Alternatively, (subsidized) adoption 3 could be pursued but it would necessitate that the parents’ rights to the child be legally severed, which could serve as a disincentive from the relative’s or child’s perspective and/or could extend the non-permanent foster care placement for many months while pursuing the termination of the parents’ rights to their child.

KinGAP Eligibility and Process

Foster children living with their relatives for at least six continuous months who are assessed by the LDSS (including ACS), or a voluntary foster care agency on behalf of the LDSS/ACS, to be unable to safely be returned home and for whom adoption has been ruled out, are potentially eligible for subsidized guardianship.  (Note: at least one permanency hearing must have occurred and, for an abused or neglected child, a fact finding hearing must have been completed.)  Prior to seeking to obtain letters of guardianship from either the Family or Surrogate’s Court, the relative foster parent must apply to the LDSS/ACS for KinGAP using a form that OCFS has developed (see Attachment B of 11 OCFS-ADM-03) or an approved LDSS equivalent form. The application must be acted on within 30 days by the LDSS.

In addition to the other permanency goals having been ruled out, the LDSS must find that the foster child has a strong attachment to the relative foster parent.  The LDSS must have age appropriate consultation with the child to ascertain the child’s view about KinGAP and the nature of the attachment.  It also must be determined that the relative is committed and able to provide a permanent home for her/his kin until the child reaches adulthood.  Criminal history and child abuse and maltreatment (SCR) checks for all adults in the household must be done, but typically will have been done at the time when the relative was approved or certified as a foster parent.  Having a criminal or SCR record does not automatically rule out eligibility for KinGAP.

The LDSS must also assess whether any siblings may be separated and the implications for such separation.  As a general child welfare rule, siblings must be placed together, although there may be reasons why an exception should be made.  Discussion with the foster child’s parent(s) must occur.  Given that the parent(s) will still maintain rights to their child, unless the child has been freed for adoption (i.e., parent’s rights were involuntarily terminated or voluntarily relinquished) and potentially could petition the court at a subsequent time for custody return, it is important that the parents understand what KinGAP means and how it might affect them.  It would be optimal if the parent were willing to consent to the guardianship arrangement although the Court may approve a guardianship/KinGAP arrangement without such consent, depending upon the case circumstances.

There is no (relative foster parent) income criterion that impacts KinGAP eligibility; however, as referenced later, the guardian’s income may impact the amount of the subsidy in some LDSSs.

If the LDSS approves the relative’s application, an Agreement (see Attachment C of 11 OCFS-ADM-03) must be signed by both the prospective relative guardian and an LDSS official.  The Agreement must address, among other things, the amount of the monthly subsidy payment; that non-reoccurring expenses, not to exceed $2,000, are available to help the relative obtain legal guardianship; that payments may be adjusted under certain circumstances; the additional services that may be available (such as independent living services for the child); and the availability of medical coverage for the child.  If the application is not  approved or is not acted upon within 30 days of being submitted, or if the relative disagrees with the approved payment amount, the relative may make a request in writing for a fair hearing but must make such request within 60 days of the district’s decision or failure to make a timely decision.

Once an Agreement between the LDSS and the prospective guardian is reached, the relative may proceed to petition the court for letters of guardianship.  Under most circumstances, the petition will be to the Family Court using Petition Form 6-1-c.  Only in the unusual circumstance where the foster child is not legally free and placed as a result of a PINS or Juvenile Delinquency proceeding would Surrogate Court be an option for filing.  If the Family Court approves the relative as a kinship guardian, and this determination is a completely separate process than the process with the LDSS, it will issue Order 6-5-a, “Appointing Kinship Guardian (Subsidized Kinship Guardian Program) and/or Permanent Guardian.”  Upon this order, the child will no longer be in foster care and KinGAP payments will be initiated from that date.

Primary KinGAP Provisions

KinGAP shares similarities with the state’s adoption subsidy program, both programmatically and financially, but also has differences. Under KinGAP:

  • The child is no longer in foster care. Absent specific circumstances that may necessitate it, there is no further ongoing court activity or contact with the LDSS except for annual notice/confirmation (see the last bullet below).
  • The child may remain in KinGAP until turning 18 years of age.  If the KinGAP Agreement became effective after the child’s 16th birthday, the child may remain in KinGAP until turning 21 if such child is: completing secondary education or in an equivalent program; in an institution that provides post secondary or vocational education; employed for at least 80 hours a month; participating in a program to promote, or remove barriers to, employment; or incapable of any of the aforementioned activities due to a medical condition.
  • The guardian receives a stipend equivalent to the LDSS’s foster care stipend, except in those LDSSs that elect to provide between 75-100% of the foster care stipend amount for adoption subsidy based on income criteria established by OCFS.4  In such LDSSs, the guardian’s stipend will be equivalent to the LDSS’s adoption subsidy amount.
  • Depending upon the child’s characteristics and needs, the guardian may be able to receive an enhanced “special” or “exceptional” stipend to support their child.
  • The guardian is entitled to a one-time payment of no more than $2000 to offset the legal cost of assuming the guardianship of the child, including attorney fees and court costs.
  • All children in KinGAP are eligible for Medical Assistance except for non-qualified immigrant children.  Such immigrant children are eligible for medical coverage through one of several other mechanisms.
  • A child who had been served through the Bridges to Health (B2H) program, which is a home and community based waiver program that provides individualized health plans and physical and/or mental health services to targeted foster children who have serious emotional disturbances, are developmentally disabled or are medically fragile, may continue after the initiation of KinGAP if their plan of care supports such continuation.
  • Children who enter KinGAP at age 16 or older are eligible for an array of independent living services and are also eligible to apply for Education and Training Vouchers (ETV), which can help defray the cost of attending college or a specialized education setting.
  • The guardian is authorized to make major decisions on behalf of the child in relation to medical treatment, education and other matters.
  • The birth parents, especially those whose parental rights were not relinquished or involuntarily terminated, may still be involved in the child’s life, although this may depend upon the parent’s relationship with the child and the guardian.  A parent whose rights to their child has not been relinquished or terminated may at any point request a court to have the child be returned to them. However, the Surrogate Court Procedures Act Section 1707(2) suggests that no change in guardianship would occur unless the guardian failed to or is unable, unavailable or unwilling to provide proper care or that the guardianship is no longer in the best interests of the child.
  • Annually, the guardian will receive a notice reminding the guardian about the guardian’s responsibility to support the child; to keep the LDSS informed about changes that might impact upon continued eligibility for KinGAP; to inform the LDSS about a school-aged child’s school status; and, for youth 18 years of older who may continue to be eligible for KinGAP, the youth’s current education and/or employment status.  The notice will be accompanied by a certification form of continued support, etc.  Failure to adequately complete and return the certification form to the LDSS and submit any requested documentation, especially after repeated attempts by the LDSS to request submission, may result in the LDSS taking steps to cease KinGAP payments.  (See Appendices E and F of 11 OCFS-ADM-03 for a model notification letter and model certification form.)

Discussion/Considerations

Two areas deserve further attention in this article.  The first pertains to a relative foster parent’s decision-making when considering whether KinGAP is the best option for her family.  The second area to be discussed, the initial custody decision, occurs earlier in the process, but it is critical as to whether KinGAP can ever be a possible outcome.

Relative Foster Parent Decision-Making

When a foster child is assessed to be unable to safely return home, it is the responsibility of the child welfare caseworker and the family court judge to pursue an alternative “permanent” home for the child.  Typically, the permanency option sought in such circumstance is adoption.  As such, before KinGAP can even be pursued, adoption must be determined not to be a viable option.  For many children being cared for by relative foster parents, adoption may be both viable and preferred.  Adoption provides an air-tight permanent legal status for the child.  But, what makes adoption viable or not?  While providing a definitive answer is difficult, some of the caseworker’s and judge’s considerations would likely include the relative foster parent’s thoughts and preference about adoption and terminating the parents’ rights, the child’s preferences 5, and the relationship of the birth parents to the child and relative foster parent.  (Note: if parental rights have already been terminated prior to a relative submitting an application for KinGAP, and a KinGAP application is submitted and approved, the relative may be appointed a permanent guardian pursuant to Section 661[b] of the Family Court Act.) Accordingly, the relative foster parent’s opinion about whether adoption is the right course of action should be an important factor in the child welfare decision-makers’ conclusion about whether adoption is viable and therefore whether KinGAP is an option.

Whether the relative foster parent should submit an application for KinGAP must be an individualized determination by each potentially eligible relative.  Considerations could include, but are not limited to:

  • The child’s preference and/or what the relative deems is in the child’s best interest;
  • Legal permanency for the child (including whether it would be valuable or a mistake to sever the child’s parent’s rights, if this has not already occurred);
  • Financial implications.  Although adoption and guardianship stipends are  identical, in some counties such stipends may be less than foster care stipends. Additionally, if the guardian’s family receives public benefits (see 11- ADM 05, “Temporary Assistance Budgeting: Treatment of Kinship Guardianship Assistance Program [KinGAP] Payments,” http://tinyurl.com/3lb33sg), there may or may not be differences between how an adoption and guardianship stipend is treated. For example, temporary assistance budgeting for a KinGAP assistance payment works the same way as it does for an adoption subsidy; i.e., whether to include the child in the family’s case depends upon whether it benefits the family. 6  Food stamps for a KinGAP family is to be handled as it is for foster parents – include the child and the KinGAP payments in the household or exclude the child and the payments, whichever method benefits the family. 7  Inheritances would be handled differently for an adoptee and a child of a guardian.
  • Both adoption and KinGAP will eliminate the need for further court hearings and eliminate face-to-face contact with the LDSS/ACS/voluntary agency staff;
  • The desired degree of any continued birth parent role and/or contact;
  • Child’s need for any services that are available in foster care but not in KinGAP or adoption.


The New York State Office of Children and Families (OCFS) has developed a publication that a LDSS/ACS is to use to provide information to a prospective relative guardian who makes inquiry about KinGAP: “Know Your Permanency Options:  The Kinship Guardianship Assistance Program”, http://tinyurl.com/3lbv54a.  Within this publication is a helpful and descriptive chart that compares adoption, KinGAP and foster care across such realms as legal rights and responsibilities of the caregiver, relationships with the birth parents and siblings, availability of financial assistance, amount of financial assistance, returning a child to the foster care system, and food stamps.  Use of this chart may be very helpful for relative foster parents sorting out whether KinGAP is an option that they wish to pursue.

Initial Placement with a Relative

As referenced in the beginning of this paper, KinGAP is available only to foster children (in the custody of an LDSS or ACS).  However, a child may come to live with a relative under different circumstances and legal statuses.  A child could informally come to live with a relative without a child protective services (CPS) report ever being made and with nobody outside of the family involved.  Absent a subsequently made contact with the LDSS or ACS, either voluntarily by the family or as a result of a CPS report, such arrangement/placement that does not result in a foster care placement occurring would preclude KinGAP from being an option, although a relative could pursue obtaining non-subsidized legal custody or guardianship pursuant to Article 6 of the Family Court Act.

Alternatively, a CPS report might be made initially, or subsequent to an informal arrangement being facilitated and CPS may determine that the child’s legal removal from the child’s home of origin is necessary to protect and keep the child safe.  Under such circumstance, removal could be done on an emergency basis (child in imminent danger of harm) where, pursuant to Article 10 of the Family Court Act, the Family Court Judge would need to approve the emergency placement immediately before the placement occurs or, when there is insufficient time to hold a hearing, shortly thereafter.  When a child is being removed pursuant to Section 1017 of the Family Court Act, the Family Court is required to direct the LDSS or ACS worker to determine the availability of a non-custodial parent and any relatives that may be a placement resource for such child.  Relatives are supposed to be asked whether they would prefer to serve as a foster parent or as a direct custodian.  Assuming that the relative is assessed to be a good placement resource, it would be reasonable to conclude that the Family Court Judge would take into account the relative’s preference as to whether they would prefer to be a foster parent or direct custodian.

Why might a relative prefer to obtain direct custody rather than be approved as a foster parent?  Potentially, the relative might prefer to have an order that specifies that the relative has direct custody (although the child would still be the subject of permanency hearings in Family Court and required, regular LDSS/ACS/voluntary agency casework visits).  Please note, however, that there are considerable more similarities than differences between direct relative custody and relative foster care; the principle difference besides who is technically the custodian, is that when the child is placed in foster care the relative will receive significantly more financial assistance to help care for the child. Under both legal statuses, permanency hearings and casework visitation would continue, thereby limiting the autonomy that a relative assigned to become a direct custodian would have pursuant to Article 10 (as contrasted with a custodial or guardianship order made pursuant to Article 6). 

In New York City, 35% of all foster children are living with relative foster parents, as contrasted with 9% in the rest of the State. 8  There are some possible explanations for this discrepancy including the fact that the foster care population in New York City is younger and more likely than the rest of the state to have entered foster care as a result of abuse or neglect (i.e., older youth, especially youth entering foster care as a result of acts that resulted in a PINS or juvenile delinquency proceeding may be less likely to be seen as good candidates for relative foster care).  Other speculative explanations are that some LDSSs may be less comfortable with a maltreated child being cared for by close relatives and, perhaps more damning, that relatives are used as custodians, rather than as foster parents primarily for county financial reasons. 9

How could a LDSS influence a relative to request direct custody, as opposed to foster care?  Given that the percentage of foster children placed with relatives differs significantly across county lines, it may be there that there are a number influencing factors, including casework and judicial opinions about the potential value of relatives as foster care resources and administrative measures that come into play.  At least one large upstate county, and possibly others, requires all relative foster parents to go through its regular preparation and training regimen for foster parents prior to being approved as a relative foster parent, notwithstanding that OCFS has given LDSSs flexibility in how to prepare and train approved relatives so that foster care placements can be made immediately with a relative.  Unfortunately, since training courses are offered somewhat infrequently and may take several weeks to complete, the relative is informed that it may take 6 months or more before the relative could be approved as a foster parent.  The relative is also informed that in the interim their kin will be placed in a non-relative foster home.  Given the choice between waiting many months before a relative could potentially become a foster parent and care for her kin in foster care versus being willing to be the direct custodian and assume care immediately, the large majority of relatives choose the latter course.

Not all foster care placements should be with relatives and not all relative foster care placements should result in the use of KinGAP.  But, the introduction of KinGAP in New York is important in that it provides another viable, and often optimal, permanent status for a foster child in care with a relative. Since the program is only available to children in foster care with their relatives, not children in the direct custody of their relatives, what occurs when the child is initially removed from the child’s home is crucial in terms of possible eligibility for KinGAP.

Additional Resources:


Endnotes

 1   Jamie Greenberg is a volunteer at the Empire Justice Center.  He formerly was the Director of Policy Analysis at the NYS Office of Children and Families
 2   OCFS Report: “Children in Care and Custody of LDSS – Quarter Ending 12/31/10” available at http://tinyurl.com/42jyhvb
 3   Social Services Law 450 et seq.
 4   The rate paid by an individual social services district can be determined by requesting the information from the social services district. More than half the local social services districts currently elect to pay between 75-100% of the foster care amount, as opposed to the full 100 %. If the guardian’s family’s income is below 275% of the federal poverty level or if the guardian is 62 years of age or older or within 5 years of mandatory retirement, the guardian will receive 100% of the foster care stipend amount, regardless of the district’s choice of subsidy payment options.
 5   A child 14 years of age or older must consent to being adopted, unless a court orders otherwise.
 6   Know Your Options: The Kinship Guardianship Assistance Program (KinGAP), New York State Office of Children and Family Services, p.23 http://tinyurl.com/3lbv54a and 11-ADM-05, Temporary Assistance Budgeting: Treatment of Kinship Guardianship Assistance Program (KinGAP) Payments, pp 2-3 http://tinyurl.com/3lb33sg
 7   Id.
 8   OCFS Report supra note 2.
 9   Foster care is funded through a blend of federal, state and local dollars.  Counties get a capped state foster care block grant.  All, or nearly all, counties have non-federally reimbursable foster care costs that exceed their state block grant amount.  If an LDSS can divert a potential foster care placement to an alternative, unsubsidized status where the LDSS still has ongoing oversight and permanency planning responsibility along with the Family Court, it will result is a reduction in the need for county tax dollars being used with little loss in influence and control of the placement.

 





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