INTRODUCTION

About 128,000 or thirty percent of all children in foster care in the United States are currently placed with relative foster parents.[1] We do not know precisely how many of these children are with licensed relative foster parents versus unlicensed relatives. 

The licensing of relatives is by its nature different than the licensing of non-relatives.  One key difference is that it usually occurs in a different order. For relatives, because they are concerned about the placement of a specific child with them, they often seek licensure after placement. Whereas, the way the foster care system was set-up and the way it typically works is that foster parents are licensed before any children are placed with them. This reverse order of events impacts the urgency of licensing for relatives.  Furthermore, some of the licensing standards and procedures may not make sense for relatives as it does for non-relatives.

Children Thrive with Relatives
For many years, child welfare agencies largely overlooked relatives as resources for the foster care of children who had been abused or neglected. However, in the 1980s, as the need for foster care exceeded the supply of traditional foster families, child welfare agencies began to turn to relatives. Initially, relative foster care was seen primarily as an emergency response to provide care for children entering foster care. Over time, however, practitioners began to observe, and research confirmed, that many children placed with relatives fare better than children placed with non-related foster families:
 

Children in relative foster care tend to be just as safe as or safer than children placed with non-relative foster families. Data indicates that foster children living with relatives experience abuse or neglect at lower rates than children placed with unrelated foster families.

 

Relative foster placements tend to be more stable than placements with unrelated foster families. Children placed with relatives generally have fewer moves while in foster care.

 

Siblings are less likely to be separated when placed in relative foster care. Siblings are more likely to remain together while in foster care when placed with relatives than when placed with non-relatives.

 

Children in relative foster care maintain community connections. Children placed with relatives are more likely to remain within their own neighborhoods and continue in their original schools than children who are placed with unrelated foster families.

 

Relatives are frequently willing to adopt or become permanent guardians when reunification is not possible. Experience across the country has demonstrated that many relatives are willing to adopt or become permanent guardians to their kin when not forced to give up critical financial assistance in order to do so. [2]

 

Placement
In accordance with this research, federal law requires -- as a prerequisite for receiving funding for child welfare services -- that states “consider giving preference to an adult relative over a non-related caregiver when determining placement for a child, provided that the relative caregiver meets all relevant state child protection standards.” [3] This provision has been federal law since 1996, when it was enacted as part of the Personal Responsibility and Work Opportunity Reconciliation Act. Consequently, it is believed that all states currently mandate either through law or policy and practice that child welfare agencies give preference to fit and willing relative caregivers.

Licensing 

Federal requirements largely leave the licensing of foster parents to the states. The states vary dramatically in their standards for licensing, and their processes and procedures in licensing relatives and supporting them. As part of a multi-partner project spearheaded by the Annie E. Casey Foundation, Generations United and the ABA Center on Children and the Law have done extensive research into the laws and regulations concerning foster care licensing standards in all 50 states and the District of Columbia.  That research is summarized in Improving Foster Care Licensing Standards around the United States:  Using Research Findings to Effect Change.  The original research is available in the database on this website. 

 

Model  Family Foster Home Licensing Standards

Using this research, Generations United, The ABA Center on Children and the Law,  and The Annie E. Casey Foundation, joined forces with the National Association for Regulatory Administration (NARA) to create the first set of comprehensive Model Family Foster Home Licensing Standards.  NARA, the national association of human service regulatory professionals, has taken the additional step of adopting them as its standards. Each partner is currently working to promote the standards to states and counties with the ultimate objective that they use them to assess and align their own family foster home licensing standards. 

 

The package of materials  includes:

  • A purpose statement
  • Ten guiding principles
  • The model standards
  • An interpretative guide, which summarizes the purpose of each standard and  provides instructions for compliance determinations 
  • A crosswalk tool, which is designed to assist states and counties in comparing and aligning their current standards with the Model       

 

SUMMARY AND COMPARISON OF EXISTING LAWS

Because children are usually placed with relatives before the relatives are licensed, we will begin by looking at laws concerning placement.

Relative Preference of Placement

Since states must consider giving preference to adult relatives to receive federal funding, it is presumptive that states would provide straightforward language in their statutes regarding the placement of children with relatives. However, a comprehensive state statutory review reveals that the language is often difficult to find, varies in its content, and occasionally is not even in the law. Forty-one states and the District of Columbia have provisions in their statutes providing that relatives be given preference when placing children. Nine states -- Connecticut, Hawaii, Kansas, Nebraska, North Dakota, Ohio, Vermont, West Virginia, and Wyoming -- do not have any statutory language, but probably, given federal law, provide preferences to relatives in policy and practice.
 

The placement language in these state laws differs widely. The continuum goes from relatives “must be considered,” to “shall promote” placement with relatives, to specifically providing an order of placement preference that lists relatives as first, and finally to very strong language such as “shall place” with relatives. Michigan is among the most clear and directive of the state statutes concerning relative placement: Upon removal, as part of a child’s initial case service plan, the supervising agency shall, within 30 days, identify, locate and consult with relatives to determine placement with a fit and appropriate relative who would meet the child’s developmental, emotional and physical needs... [4]
 

Under these placement provisions, both blood and adoptive relatives are typically considered for placement. Indiana, for instance, instructs the court to specifically consider “placing the child with a suitable and willing blood or adoptive relative caretaker, including a grandparent, an aunt, an uncle, or an adult sibling; de facto custodian; or stepparent; before considering any other out-of-home placement.” [5] If a state does not identify which relatives should be considered first for relative foster care, most states do define “relative” or “kin” or “relative caregiver” elsewhere in their code. Thus, potential relative caregivers should not be deterred if they are of a degree of kinship not specifically enumerated in the section relating to relative placement.
 

In many states that have laws regarding preferences, the language appears in several different sections of the code, making it difficult for grandparents and other relatives conducting their own research. In some states, a stated preference for relative care is buried deep within complicated statutory language.
 

Eligibility for Placement

States are not automatically required to place a child with a relative. The state may determine that a relative’s home is unsuitable or a relative may be unwilling to care for a child despite being declared fit. California’s policy is unique in that it details over a dozen factors—beyond best interest of the child and the wishes of the parents and relatives—that might impact a state’s decision to place a child with a relative. For example, caseworkers and courts should consider: placement of siblings and half-siblings in the same home; the good moral character of the relative and any other adult living in the home; the nature and duration of the relationship between the child and the relative; and the ability of the relative to protect a child from his or her parents, facilitate visitation with the child’s other relatives, and provide legal permanence for the child if reunification plans ultimately fail. [6] Such elaborate direction and detail may help decision-makers make the best possible placement determinations for an already-vulnerable child.
 

Procedure for Ineligible Relatives

Only 15 states [7] provide any procedural protections in their statutes for relatives who want children placed with them but are denied that opportunity. Of these states, protections include requiring the state to keep detailed and comprehensive documentation of any decisions regarding placement; well communicated decisions denying placement; and occasionally allowing relatives to appeal unfavorable decisions.

Licensing Foster Home Requirements
Now we turn our attention to licensing standards.  Our research turned up some key problematic foster home licensing standards, which can impact both relatives and non-relatives:

Possible bias against rural families 

  • 6 states have standards that may potentially cause discrimination against rural families:  Arkansas, Colorado, Missouri, Nevada, Oklahoma, and Utah.
  • Colorado’s regulations, as an example, require that the prospective foster parent:  “live in an area that is accessible to health resources, public and private utilities, adequate and safe water supplies, sewage disposal, and fire and police protection.” [8]

Outside inspections and the issue of who pays for them 

  • 15 states require inspection by an outside agency, such as the Fire Marshal and/or the health department.
  • 19 states “may” require outside inspection depending on the agency official’s discretion and the circumstances, such as whether the home uses well water. 
  • Only one of the states -- Nebraska -- specifies that it is the applicant who pays for the inspection, although the fire marshal “may” pay. [9] This leaves open the question of who pays in the other 33 states.  

In addition to these problematic standards, the content of several categories of standards vary so dramatically from state to state and by virtue of that alone, raise questions about how these standards are determined and what are the best standards.  Most of these requirements should be consistent for all safe and appropriate foster homes throughout the United States.  For example, capacity standards vary between allowing 3 to 6 foster children in a home, and/or a total of between 4 to 8 children. 

Some categories of standards may not be necesssary at all.  For example, standards involving arbitrary and strict square footage requirements may have more to do with cultural biases than with safe and appropriate foster homes.

 

Foster Parent Requirements
Our research also turned up some key problematic licensing standards for becoming a foster parent:
 

Upper age limits

  • In 6 states’ laws and regulations we found what could arguably be categorized as age discrimination:  Arkansas, Delaware, Louisiana, Maryland, West Virginia, and Wisconsin.
  • Most of these states explicitly refer to upper age limits of 65. 

Education and literacy requirements

  • Florida, New Hampshire, and Virginia’s laws and regulations specify that applicants must have the ability to communicate in English. 
  • Ohio and Massachusetts require either English or another language.  In Ohio, applicants must be able to communicate with the “recommending agency.”  In practice, this could have a limiting impact if the agencies at the county level do not have workers who speak other languages. 
  • Oklahoma and West Virginia require literacy without mention of language, and New Hampshire requires applicants to have high school diplomas or equivalents. 

Income requirements

  • The vast majority of states, 41, have written income requirements for applicants.
  • Some states simply say applicants must have “sufficient income.” Many others explicitly state that the applicants must have sufficient income to meet the needs of the household without reliance on the foster care payment. 
  • Several states also prohibit home businesses without prior approval or if the business poses a risk to the health or safety of the child, and others require approval of child care plans for those parents who work outside the home. Both these standards can jeopardize meeting the income requirements, depending on how they are put into practice. 

Physical examination requirements

  • 27 states require that a physical exam or a medical statement be prepared by a doctor (and sometimes other health professionals are permissible) usually within 12 months of the foster care application. 
  • 12 of these states require physicals or medical statements for each member of the household, not just the applicant. 
  • Most states in their laws and regulations do not reference who pays for these physicals, although it is probable that in practice many applicants are required to pay.  Given high health care costs and the fact that 16% of the population does not have health insurance [10], this requirement can pose a serious licensing obstacle.

Potential discrimination on the basis of disability

  • There are no state laws or regulations that are overtly discriminatory on the basis of disability, although a few have language that raises concerns about how these applicants would be assessed in practice.
  • For example, in Hawaii, the required medical report must certify that the “resource family suffers no illnesses or disabilities that would interfere with the resource family's capacity to care for children.” [11] How is “capacity to care for the children” being assessed? 

Like with foster home requirements, the content of several categories of standards vary dramatically from state to state and by virtue of that alone, raise questions about how these standards are determined and what are the best standards. Most of these requirements should be consistent for all safe and appropriate foster homes throughout the United States. For example:
 

Abuse and neglect background checks

  • Federal law requires states to conduct abuse and neglect background checks on foster parent applicants and all “adult” household members. 
  • Many state laws and regulations also contain requirements that go beyond the federal requirements.  For example, some states – Arkansas, Kansas, and South Dakota -- require checks on household members as young as age 10, and several more – Connecticut, Illinois, Iowa, Texas, and Kentucky -- on teenagers. 
  • States also differ in whether they deny licenses to only those with substantiated child abuse, or whether having an indictment, open or pending case is sufficient. 

Criminal history records check

  • All states and the District of Columbia require that a criminal background check be conducted on foster parent applicants, which is mandated by a federal law called Adam Walsh. 
  • Based on our initial research, we determined that at least 21 states disqualify for crimes beyond those in federal law. Some examples include scheme to defraud, defrauding creditors, issuing a bad check, prostitution not involving children, threatening terror, and attempting or assisting suicide.

Provisional Licensure/Emergency Placement

Because children are often placed with relatives before they are licensed, there is a need for an expedited timeframe when licensing relatives. In response to that need, many states have “provisional licensing.”  Provisional licenses are typically time limited and allow a relative or a non-relative to care for a child after certain basic safety checks have been completed on the home and household members.  These licenses generally allow the adult to complete the licensing process during the time period of the provisional license; in the event they are unable to be licensed, the child is removed.  About 35 states have these licenses, and only a couple – Arkansas and the District of Columbia -- specifically limit them to kin.
 

Rather than providing for “provisional licensing”, a few states – California, Connecticut, Minnesota, New Jersey, New York, Oklahoma, Rhode Island, and Utah -- call for the same type of background checks, time limitations, and applications for full licensure, but rather than “licensing” the home, albeit it provisionally, the states simply call it an emergency or temporary placement.  Almost all of these states limit these placements to relatives or kin.  In Connecticut, emergency placements are also open to children where the adult is a relative of a sibling.  Whether the fact that the home is not “provisionally licensed” by the state affects the state’s liability for the placement is an open question.

Waiver/Variance of Licensing Requirements
After addressing the difference in timing and urgency for relatives and non-relatives, the question arises as to whether the same standards make sense for relatives as non-relatives.  For example, should the prohibition against foster children of opposite genders sharing a bedroom apply to siblings?  Some states address these types of differences by allowing for case by case waivers  or variances.  Relative Foster Care Licensing Waivers in the States: Policies and Possibilities prepared for this resource center specifically addresses waivers. 
  

Our research found that almost half of the states have provisions allowing for some type of non-safety related waivers, and almost twenty states allow for variances from non-safety related requirements.  About fifteen states have waivers for specific licensing standards, such as age requirements.  In Arkansas, for example, foster parent applicants must obtain a waiver if they are 65 or over or one or both current foster home providers reach 65. [12]
 

About sixteen states have provisions that only apply to kinship caregivers, which allow for the waiver of either specific requirements or any non-safety requirement.  For example, in Connecticut, they have a general waiver provision for relatives: the commissioner may grant a waiver on a case-by-case basis from any non-safety related procedure or standard, including any standard regarding separate bedrooms or room-sharing arrangements, for a child placed with a relative, if such placement is otherwise in the best interests of the child. [13]  In Kentucky, specific exceptions to the requirement that foster parents be age 21 are allowed for relatives between ages 18 and 21 who are “able to meet the needs of the child”. [14]  
 

Over ten states also have waiver and variance provisions to facilitate the placement of siblings together.  Most of these provisions allow for waivers of capacity standards in order for siblings to remain together in the home.  In Colorado, variances from square foot space standards are also allowed for siblings. [15] Michigan has a general variance provision to facilitate sibling placement:  the department may grant a variance to one or more licensing rules or statutes to allow the child and one or more siblings to remain or be placed together. The department may grant the variance if it determines that such a placement would be in the child's best interests and that the variance would not jeopardize the health or safety of a child. [16] 
 

Relative-Specific Licensing Requirements
The Adoption and Safe Families Act prohibits a two-tiered system of licensing, one for relatives and another for non-relatives, according to the Final Rule implementing ASFA.  In the comment and response section of this Final Rule, the Children’s Bureau of HHS explicitly states: “relatives must meet the same licensing/approval standards as non-relative foster family homes.” [17]   Although the language of ASFA itself is not as clear, this is the federal guidance on the subject.  Research conducted by the Urban Institute found that partially as a result of this rule, 27 states changed their licensing policies.  Of these, 18 states implemented stricter licensing standards for relatives than they had previously.  [18] While we were conducting our research for this project, we saw many state codes of law that had entire sections devoted to licensing of kin, which had been repealed in their entirety.  Consequently, our research did not turn up much in the way of separate licensing standards for relatives, although many states have language treating the licensing of relatives differently.
 

Louisiana is one of the only states with what they call separate minimum standards for relatives in its law.  This 1997 Louisiana law, which was amended in 2000, allowed the Office of Children and Family Services to establish a Kinship Foster Care Program with different licensing standards: the “office of children and family services shall establish, in accordance with the provisions of this Section, eligibility standards for becoming a kinship foster parent including the following…” [19] Although the law is still in effect, the Office of Children and Family Services does not appear to have such a program.  There is nothing in Louisiana’s regulations about such a program and the department’s website explicitly states that relatives must meet the same standards.
 

Several states do however have language facilitating the licensing of relatives: 

  • In Hawaii, the department must provide a child's relative with an application to be the child's resource family within fifteen days of the relative's request to provide foster placement for the child. If the application is submitted and denied, the department must provide the applicant with the specific reasons and an explanation of appeal procedures. [20] Furthermore, relatives are not required to complete training prior to licensing.  They have one year after placement to complete training. [21] 
  • In Idaho, "[t]he department may expedite placement with a relative, issue a foster care license or grant a limited variance or waiver of a licensing standard or requirement if, in the department's judgment, the health and safety of the related child is not thereby endangered.” [22]
  • Illinois has a separate part of the code for "APPEAL OF FOSTER FAMILY HOME LICENSE DENIALS BY RELATIVE CAREGIVERS."  [23] We have not explored how that appeal process plays out in practice, but it is interesting to note that such a mechanism has been called for in the regulations. 
  • New York has procedures calling for expedited approval for relatives.  According to state law, after a relative applies to become a foster parent, the court must hold a hearing to determine whether the child should be placed with the relative in foster care. If the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services, to initiate an investigation of the home of the relative within 24 hours and thereafter expedite approval or certification of the relative, if qualified, as a foster parent. Please note, however, that no child in New York “shall be placed with a relative prior to final approval or certification of such relative as a foster parent.” [24]

We found only one state that requires relatives to meet additional licensing requirements beyond those required of non-relatives.  In Colorado, relatives must have:
 

the ability to provide a permanent home through adoption, guardianship or permanent custody, including the ability to meet the individualized needs of the specified child(ren), assessment of the relationship with birth parents and extended family members as they impact capacity of the applicants to care for the child(ren), and the ability to set boundaries with birth parents to maintain safety for the child(ren) in care. [25]  

 

Payment

More than two-thirds of the states and the District of Columbia say nothing in the statutes about how relatives must be paid. Of those states that do, most specify that for relatives who meet the same licensing requirements as non-relatives, they are entitled to the full foster care rate. These statutes are consistent with federal case law in Youakim v. Miller. [26] Pursuant to this case, a relative who is a licensed foster parent for a child who is Title IV-E eligible must receive the same foster care payment as non-kin foster parents.

If the children do not meet IV-E criteria, most states will use state or local funds to provide foster care payments to licensed, relative foster parents. States also may provide assistance, with their own funds, to unlicensed relative foster parents; in some states, however, these unlicensed relatives are simply referred to Temporary Assistance for Needy Families (TANF) for assistance. Like licensing requirements, most rules concerning payment can be found in state policy manuals, regulations, unwritten policies, and practice.

LEGISLATIVE TRENDS

The law in this area is constantly seeking to provide better protection for children, youth, and grandfamilies. The model licensing standards project spearheaded by the Annie E. Casey Foundation hopes to effect change in this area.  We will keep you informed of the group's progress through this website.  
 

Finally, please note that the summaries of the laws and legislation in this analysis are based on the research conducted for this website and available for all users in the state law and legislation database. That database, as well as the other information on this website, is an ongoing project. If we have omitted any relevant information from this analysis or if you have any other comments or suggestions, please contact its author: Ana Beltran, Special Advisor, Generations United, at abeltran@gu.org.

 

 


 

 

[1] U.S. Department of Health and Human Services, Adoption and Foster Care Analysis and Reporting System (AFCARS). The AFCARS Report, Preliminary FY 2015 Estimates as of June 2016. Retrieved from https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport23.pdf 

[2] For more information, see Kids are Waiting and Generations United (2007), Time for Reform: Support Relatives in Providing Foster Care and Permanent Families for Children; and Generations United (2016), Children Thrive in Granfamilies fact sheet.

[3] 42 U.S.C. 671(a)(19).

[4] Mich. Comp. Laws Ann. section 722.954a.

[5] Ind. Code Ann. section 31-34-4-2.

[6] Cal.[Welf. & Inst.] Code section 361.3(a).

[7] Alaska, Arizona, California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, Ohio, Pennsylvania, Rhode Island, Washington, and Wisconsin.
[8] 12 CCR 2509-8:7.708.23.
[9] Neb. Admin. R. & Regs. Tit. 474, Ch. 6, sec. 003.
[10] DeNavas-Walt, C., Proctor, B.D., and Smith, J.C. (2011). Income, Poverty, and Health Insurance Coverage in the United States: 2010.  Washington, D.C.: U.S. Census Bureau.  Retrieved from http://www.census.gov/prod/2011pubs/p60-239.pdf
[11] Haw. Admin. Rules (HAR) sec. 17-1625-18.
[12] Ark. Admin. Code 016.15.15-6.0.
[13] C.G.S.A. § 17a-114.
[14] 922 KAR 1:310.
[15] 12 Colo. Code Regs. § 2509-8:7.708.22.
[16] M.C.L.A. 722.118b.
[17]Title IV-E Foster Care Eligibility Reviews and Child and Family Services State Plan Reviews; Final Rule, 65 Fed. Reg. 4032 (2000).  Retrieved from http://www.acf.hhs.gov/programs/cb/laws_policies/cblaws/fed_reg/fr012500.htm  
[18]Jantz, A., Geen, R., Bess, R., et al.  The continuing evolution of state kinship care policies.  Washington, D.C.: The Urban Institute, 2002). 
[19] LSA-R.S. 46:286.1.
[20] HRS § 587A-10.
[21] HRS § 346-17.
[22] I.C. § 39-1211A.
[23] 89 Ill. Adm. Code 338.10 et seq.
[24] McKinney's Family Court Act § 1028-a.
[25] 12 CCR 2509-8:7.710.33.

[26] Youakim v. Miller, 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed. 2d 194 (1979).