A few years ago, students in my appellate clinic handled a case involving a two-year-old child who had been living with his grandmother due to his parents’ incarceration. The judge, the caseworker and the child’s lawyer all agreed that the child was thriving in the home.
But one day, the caseworker discovered that the grandmother had a decade-old criminal conviction for assault. She immediately went to the home and, citing agency policy, abruptly removed the child and placed him with strangers.
It took us years to get the child back to his grandmother. It required convincing the Court of Appeals that grandmother was fit to care for the child, a determination the caseworker easily could have made herself as grounds for overriding the policy on prior convictions. But we could never reclaim his lost time with family.
I was reminded of this story recently when I read articles about the federal lawsuit filed by the Legal Aid Society of New York City, arguing that the city was violating the constitutional rights of children in foster care by depriving them of their right to live with their extended family. While the lawsuit focuses on policies that categorically bar relatives from caring for their kin without individualized findings, the challenges of getting children placed with their family extends far beyond the issues raised in the lawsuit.
Research tells us that children in foster care fare much better when living with their family. But all too often, kids are placed with strangers because relatives aren’t properly identified or notified, nor are they told how they can request placement of their kin. Instead, their ability to keep children in the family hinges on the diligence of their caseworker, or the quality of attorneys for the child or the parents.
In most jurisdictions, relatives don’t have standing to make a request for placement in juvenile court. So if an overworked caseworker doesn’t do a home study or wrongly denies a placement, and overburdened attorneys don’t notice, relatives have few options. Children lose out on their right to be with their people.
Any delays in placing children with their relatives not only increase the trauma they experience, they impact the ability of relatives to ever get placement of the children. States may have laws that only give relatives preference in placements for a certain period of time. And judges and caseworkers are often loath to change a child’s placement after the child has been living with a foster parent for a significant period of time, citing the attachments the child has formed with a new caregiver.
My clinic frequently fields calls from relatives who for one reason or another are entering the placement conversation far too late. Some didn’t know their kin was in foster care. Some thought the child was being reunified, so they didn’t ask for placement. Some live out of state, and were awaiting the completion of a home study, which can take up to a year. So many of them are eventually told that it is too late, and that their kin would be raised by non-relatives.
Is this the system we would design for our own families? As leaders in the field, we must ask ourselves how we fix these tragedies, so that kids can be raised by those who know them best. Here are a couple of ideas.
First, federal law should make clear that states must give a preference for relatives requesting placement of kids in foster care so long as they make the request within a specific period of time after they received proper notice that the children were in care. Second, federal law should also prohibit states from categorically excluding any relative from being considered for placement based on prior offenses, and instead should require an individualized determination of the relative’s ability to care for their child by a judge.
Third, states should give kin a direct path to seek placement in court when no other party will make the request. This is critical to ensure that poor advocacy on the part of attorneys within the system – which remains all too common – does not keep children from their family.
And finally, the federal government should fund home studies of relatives who live in a different state than the child in foster care, and should provide financial incentives for the expedited completion of the home studies. The law should also make clear that the ultimate decision regarding whether a child can live with their family in another state should always rest with a judge, not a single caseworker.
This list is just a start. Those of us who have been doing this work for many years can’t let our complacency stand in the way of what children deserve – their right to be with family.