INTRODUCTION

In October 2008, The Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act) unanimously became law.  This is the most significant child welfare law in the last fifteen years. Among the many provisions affecting grandfamilies are requirements that states identify and notify relatives when children enter foster care. By now, all states must be implementing these new requirements.  If they have not, they risk losing federal foster care monies through Title IV-E of the Social Security Act. 

 

Section 103 of the Fostering Connections Act, Notification of Relatives, requires: 

 

…within 30 days after the removal of a child from the custody of the parent or parents of the child, the State shall exercise due diligence to identify and provide notice to all adult grandparents and other adult relatives of the child (including any other adult relatives suggested by the parents), subject to exceptions due to family or domestic violence,… 

 

The law goes on to delineate what elements the notice must contain, but does not state whether the notice should be in writing or oral.  The notice: 

 

(A)   specifies that the child has been or is being removed from the custody of the parent or parents of the child;

(B)   explains the options the relative has under Federal, state, and local law to participate in the care and placement of the child, including any options that may be lost by failing to respond to this notice;

(C)   describes the requirements … to become a foster family home and the additional services and supports that are available for children placed in such a home; and

(D)   if the State has elected the option to make kinship guardianship assistance payments …, describes how the relative guardian of the child may subsequently enter into an agreement with the State …to receive the payments.

 

By requiring identification and notice, the Fostering Connections Act seeks to involve relatives earlier in the process and tries to keep families together. There are countless compelling stories from around the country of relatives who did not know that their grandchildren, nieces, nephews or siblings had been placed into foster care until well after they had been placed or even adopted by a non-relative. This severance of family connections persisted, despite the fact that research has shown that children placed with relatives fare better than children placed with non-related foster families. [1] 

 

In accordance with this research, federal law has required for several years -- as a prerequisite to 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.” [2]  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. 

 

Despite the preference, however, not all states were identifying or notifying relatives when children are removed from their parents’ homes.  Without identified and notified relatives, placement preferences were often meaningless.  Now, thanks to the Fostering Connection Act, these two types of policies should work in unison to help grandfamilies come together.

 

SUMMARY AND COMPARISON OF EXISTING LAWS AND POLICIES


State Laws

The Fostering Connections Act does not require states to enact legislation in order to implement it.  That is a state decision.  However, since the Fostering Connections Act became law in October 2008, at least fourteen states – Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Indiana, Iowa, Maine, Michigan, Minnesota, Nebraska, North Dakota, and Oklahoma – have enacted new notification laws or amended prior notification laws that reflect the language in this new federal law. 

 

Massachusetts and Missouri also have new notification laws, but they do not include the specific requirements of the Fostering Connections Act, such as a 30 day timeframe or a requirement that care and placement options be explained to relatives. Massachusetts’ law concerns the identification of relatives, not notification. [3] Similarly, Missouri focuses on locating, contacting, and placing children with grandparents in emergency placements and gives a placement preference to them, over other relatives, for foster care placements. [4] 

 

Additional states -- Illinois, Kentucky, New York, Texas, and Washington – still have notification laws on their books from prior to the Fostering Connections Act, which contain provisions that may seem contradictory to those in the Fostering Connections Act.  For example, under Kentucky law, notification of relatives is only required if the parent or person who has legal custody of the child cannot be found. [5]  Kentucky and the other states may want to consider legislation to amend these types of contradictory provisions, even if their policies or practices call for the correct implementation of the federal law. 

 

State Policies

The District of Columbia, Idaho, Oregon, Pennsylvania, Texas and Vermont, Virginia, Washington, and Wyoming have incorporated the new requirements in their relevant Policy Manuals or State Policy Bulletins. There may be many other states as well, but these documents are difficult to research using online sources. 

 

In addition to the contradictory language in some state laws, state policies should be reviewed for such language.  For example, Nebraska[6] includes locate, contact, and involve requirements in its relevant Policy memo, but it does not specifically call for notice or what elements that should include. 

 

Useful Language

A few of the notification laws that existed prior to the Fostering Connections Act, and that have been enacted since, have provisions that go beyond those required by federal law.  These provisions, in addition to provisions in state policy manuals, may provide useful language for those states that have yet to take action to implement the new federal requirements.

 

Definition of “Relative”

The first and most fundamental element of these requirements is deciding which definition of “relative” to use.  In some states, the legislature has defined relative in its state laws for purposes of identification and notification, whereas in others the department defines it in regulation or policy. Moreover, some states only say “relative” in their identification and notification laws or policies, which require case workers to either look in another part of the law or policy or perhaps even to simply use their own judgment of who constitutes a relative. 

It is best practice:

  • to include the definition clearly where the identification and notice provisions are located in the Policy Manual, so that caseworkers can easily refer to it  
  • to include "fictive kin" -- i.e., god parents and people with close, family like relationships with the child   
  • to use the same definition for the state's guardianship assistance program (GAP), if the state has such a program 

In Pennsylvania, the same definition is used for identification/notification and for its GAP program, known as Subsidized Permanent Legal Custodianship: 

 

“The definition of kinship/kin encompasses those relationships that fall under Pennsylvania's current definition of kin that exists in other areas of practice and policy.  This includes existing relationships with a child that meets at least one of the following: 

  • Relative through blood, marriage (affinity) or adoption
  • God parents as recognized by an organized church;
  • Member of the child's Indian tribe, nation or clan; or
  • Individual with a significant, positive relationship with the child or family.

An individual with a significant, positive relationship with the child or family would be one which was in place prior to the execution of the SPLC agreement.  This may include relationships established with a teacher, current or former resource parent, etc.” [7]


Due Diligence to Identify and Notify Relatives

The federal law does not define “due diligence”, so it is up to the states to decide what it is in the context of their policies and practices.
 

Texas includes a very detailed description of “due diligence” in its Policies: 
 

  • Due diligence, within the context of removing a child from his or her home, means that the caseworker who removes the child (the removal worker) takes the following actions until a conservatorship (CVS) worker is assigned to oversee placement.
  • Asks all parents, including any parents who do not live with the child that DFPS is able to contact, for identifying and locating information on all adult maternal and paternal relatives who are within the third degree of consanguinity (that is, all grandparents, great-grandparents, aunts, uncles, nieces, nephews, and siblings), as well as all other adult relatives and fictive kin.
  • Asks the children in the case whether they have identifying or locating information on their grandparents and other adult relatives or fictive kin.
  • Asks other relatives and principal sources in the case, whether they have identifying or locating information on grandparents and other adult relatives or fictive kin.
  • Refers to the Diligent Search Unit of the DFPS Program Support Division all adult relatives and fictive kin who are entitled to notice and who are not already listed among the valid contacts that DFPS has on file.
  • Refers to the Diligent Search Unit all other adult relatives or fictive kin who the worker has determined to be appropriate to receive the notice, after consulting with a supervisor in a staffing.
  • Provides the Kinship Notification Letter generated from IMPACT and Form 2624 Notification of Relatives of Removal Letter to all relatives and fictive kin who have been identified and located through the efforts described above.
  • Continues to search for and involve relatives beyond the first 30 days after CPS requested a court order for removal. Continuing to search supports state mandates that call for an ongoing effort by CVS staff to find a permanent placement for the child.[8]

Nebraska’s Policy Manual also defines “diligent efforts”: 
 

Diligent efforts include, at a minimum, asking the parent or guardian and the child, when appropriate, for information; following up on leads provided by collateral contacts or family members; and, if parent’s whereabouts are unknown, making a referral to the Federal Parent Locator Services.  Efforts made and the results of these efforts must be documented… [9
 

Even prior to the Fostering Connections Act, at least three states – California, Colorado, and Oklahoma -- required the court to order the parents to provide names and contact information for relatives, thereby facilitating the child welfare agency’s work. 

 

Continuing Efforts to Locate and Engage Relatives

The Fostering Connections Act does not require any future notification or outreach to relatives beyond the initial 30 days after the child has been removed from his or her parent’s home. Some states, however, have included continuing identification and notification requirements in their laws or policies, in order to fulfill the goals of the Act to promote family connections for children in foster care. 

 

Illinois’ pre-Fostering Connections notice law has provisions that address the need for continuing efforts to maintain family connections -- including for visitation. According to the Illinois law, when relative placement is inappropriate, the agency must “continue” to make reasonable efforts to identify and locate relatives for visitation with the child and to perhaps serve as future placements unless these efforts are “futile” or not in the child’s best interest. [10]  Similarly, under Texas policy, case workers are specifically required to continue the search of relatives beyond the 30 days “to find a permanent placement for the child.” [11] 

 

Notification Exceptions Due to Family or Domestic Violence

The Fostering Connections Act generally provides for exceptions to the identification and notification requirements “due to family or domestic violence,” although it does not provide additional clarification.  Most states also do not go into detail concerning when this exception can be applied, and we must be vigilant of the potential for an abuse of unsubstantiated “danger” allegations that may be due to family dynamics, rather than actual danger. 

 

Arkansas is one of the few states that do go into some detail in its law: 

 

(3) The notice provided under this subsection is not required if  the adult grandparents or other adult relatives have:

(A) A pending charge or past conviction or plea of guilty or nolo contendere for family or domestic violence; or (B) A true finding of child maltreatment in the Child Maltreatment Central Registry. [12] 
 

Notification of Care and Placement Options

The Fostering Connections Act requires that states must explain to relatives what options they have in the care and placement of children, including any options that are lost by failing to respond to the notice. The Act, however, does not delineate what those care and placement options encompass or what might be lost. 

 

A review of state laws shows that none of them contain any detail about these options either, with the notable exception of California’s, which went into effect in October 2009.  This law delineates the options and services and support that must be explained in written notice, and if appropriate, oral notice as well: 


(B) An explanation of the various options to participate in the care and placement of the child and support for the child's family, including any options that may be lost by failing to respond. The notice shall provide information about providing care for the child while the family receives reunification services with the goal of returning the child to the parent or guardian, how to become a foster family home or approved relative or nonrelative extended family member as defined in Section 362.7, and additional services and support that are available in out-of-home placements. The notice shall also include information regarding the Kin-GAP Program (Article 4.5 (commencing with Section 11360) of Chapter 2 of Part 3 of Division 9), the CalWORKs program for approved relative caregivers (Chapter 2 (commencing with Section 11200) of Part 3 of Division 9), adoption, and adoption assistance (Chapter 2.1 (commencing with Section 16115) of Part 4 of Division 9), as well as other options for contact with the child, including, but not limited to, visitation. [13] 
 

Please note that California also requires that relatives be informed about visitation and other options for contact with the child. Similarly, Oklahoma, in its notification statute enacted in May 2009, allows the state to notify relatives not only for suitable placement, but also “to maintain the child’s connection to kin or culture.”[14] This language will help promote successful outcomes for children. Children may be able to maintain a connection with their family and culture, even if they are not in a relative’s full time care.

Minnesota’s law does not list the various care and placement options like California does, but it does retain its provision from prior to the Fostering Connections Act that “[a] decision by a relative not to be a placement resource at the beginning of the case shall not affect whether the relative is considered for placement of the child with that relative later…” [15] It appears to be the only state with such a provision.

 

Notification of Requirements to Become Foster Family Home

With regard to the new federal requirement to provide information on how to become a foster family home, Minnesota’s law elaborates that the notice will include information about “how to complete an application and how to request a variance from licensing standards that do not present a safety or health risk to the child in the home…” [16] This reflects federal law under the Adoption and Safe Families Act and the Fostering Connections Act that relatives may be eligible for exceptions from licensing standards that do not affect safety.  This exception recognizes the fact that relatives often start caring unexpectedly for children in their existing homes, which may not have the required number of bedrooms or meet other licensing standards that do not affect the safety of the children.
 

It is hoped that all of these provisions in existing state laws and policies will give ideas to those states that have yet to take action implementing the Fostering Connections Act.

 

LEGISLATIVE TRENDS

Despite states’ current obligation to be identifying and notifying relatives, states should still take action amending laws or implementing policies if they have not yet done so.  Maine and Nebraska enacted notification laws implementing these federal provisions as late as 2011.

 

The failure to implement the Fostering Connection Act provisions can result in loss of Title IV-E funding.  The question often comes up, however, if additional penalties can be imposed at the state level.  State legislatures or agencies can decide to enact penalties, but our research has only turned up one state legislature that attempted this and failed.  A piece of legislation was introduced in Connecticut with a unique provision that “the failure to document such reasonable efforts shall give the parent or child the right to sue the state.” [17] 

 

Hopefully, penalties will not be necessary and more states will take legislative or administrative action to ensure that these identification and notification provisions are being properly implemented.  We will monitor the actions taken by the states and will post enacted laws, new legislation, and Policy Manual or similar provisions for all users of this website’s state law and legislation database. 

 

Please note that the 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.    

 

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[1] For a summary of this research, visit the Foster Care Licensing Analysis found on this website.

[2] 42 U.S.C. 671(a) (19).

[3] Mass. Gen. Laws Ann. Ch. 119 sec. 23.

[4] Mo. Ann. Stat. 210.305.

[5] Ky Rev. Stat. § 620.060(4)

[6] NE DHHS Memo:  Title 390 #1-2005.  Retrieved from http://dhhs.ne.gov/children_family_services/Documents/PM-14-Diligent-Efforts.pdf
[7] Pa OCYF Bulletin, Permanent Legal Custodian Policy, July 30, 2010.  Retrieved from http://www.dhs.pa.gov/cs/groups/webcontent/documents/bulletin_admin/d_006027.pdf  CYF staff report that this same definition is used for identification and notification.  Phone interview on February 27, 2012 with OCYF staff.

[8] Tx Child Protective Services Handbook 2663.  Retrieved from https://www.dfps.state.tx.us/Child_Protection/Fostering_Connections/notifying_relatives.asp

[10] 20 ILCS 505/7

[11] Tx Child Protective Services Handbook 2663.  Retrieved from https://www.dfps.state.tx.us/Child_Protection/Fostering_Connections/notifying_relatives.asp

[12] Ark.Code § 9-28-107

[13] Cal. [Welf. & Inst.] Code sec. 309(e)

[14] 10A Okla. Stat. 1-4-202.

[15] Minn. Stat. sec. 260C.212(5).

[16] Ibid.

[17] SB 627, Gen. Assem., Reg. Sess. (Ct. 2009).