Guardianship Assistance

In October 2008, The Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act) unanimously became federal law.  Among its many provisions, for the first time, it gave states, tribes and territories the option to use funds through Federal Title IV-E of the Social Security Act (Title IV-E) to finance guardianship assistance programs (GAP)-- otherwise known as subsidized guardianship -- to enable children in the care of grandparents and other relatives to exit foster care into permanent homes.

Subsidized Guardianships Prior to Fostering Connections Act 
Prior to this law, 38 states and the District of Columbia had some form of subsidized guardianship, primarily paid for using state or local funds, but in some states financed through federal Temporary Assistance for Needy Families (TANF) monies, Title XX Social Services block grant funds or through a waiver from the U.S. Department of Health and Human Services (HHS) that specifically allowed them to use Title IV-E funds for their subsidized guardianship programs. [1] The lessons learned and successes of these early programs paved the way for passage of the GAP option in the Fostering Connections Act.

Federal Financing Victory 

The passage of the Fostering Connections Act was a huge victory for the kinship care community because, although there were many subsidized guardianship programs, most were underutilized. Case workers, judges, and lawyers were reluctant to move children from a reliable funding source -- Title IV-E foster care payments -- to funding that may not have continued to be available.

Elements of GAP

Under the Title IV-E option, guardianships assistance programs (GAP) are designed for children and youth:   

1. who have been in foster care with a licensed relative providing the care for at least six months
2. for whom reunification with their parents and adoption are not appropriate permanency options

GAP gives licensed relative foster parents the opportunity to become the legal guardians of children, thereby replacing the state, territory or tribe in that role.  

Under federal law, states, tribes and territories have flexibility in implementing these programs, including how they define "relative".  Most define it to include close family friends and other adults who are not related to the child by blood or marriage, thereby allowing more children to be eligible for the program.    

Court Awarding Guardianship

The court that considers the granting of a guardianship reviews the appropriateness and permanence of the placement and, in cases of older children, often seeks the input of the child as well. If the court finds that the guardianship is in the “best interest” of the child and grants it, the state or tribe no longer has legal custody and there is little or no child welfare agency oversight.  In order to obtain GAP payments to meet the needs of the child, the guardianship assistance agreement must be in place before the guardianship is awarded by the court.

The caregiver now stands in the shoes of the parent and can make all routine decisions on behalf of the child without government oversight. The parent, moreover, typically retains certain rights and responsibilities, including the right to consent to adoption and the obligation of child support. The parent can also still visit with the child, unless the judge granting guardianship has limited that right due to the “best interest” of the child.

Guardianship Payments 

After guardianship is granted, the state issues a monthly subsidy check to the guardian for the care of the child. Under the GAP option, the subsidy cannot exceed the foster care rate.  States and tribes must reimburse also relatives with the non-recurring costs of  trying to obtain legal guardianship (e.g., legal fees, court filing fees and travel expenses) up to $2,000, and children are automatically eligible for Medicaid. The subsidy payments usually end when the guardianship terminates or when the child turns 18 (age 19 to 21 in some states).

Responsive to Cultural and Family Concerns 

GAP  provides an important permanency option for many children. An option that is responsive to long and proud Native American, Latino, and African-American traditions of stepping in to care for relatives when parents have been unable to care for the children.

These programs are also sensitive to many other types of family concerns that may prevent a child from being adopted:

1. Adoption forever changes family dynamics.  Grandparents, aunts, uncles, and siblings who are long-term foster parents may not want to initiate a legal adoption process. A process that must prove that that their own relative, the parent, is unfit, sever all of the birth’s parents legal ties to the child, and make the relative the “parent.” These caregivers are already family, and many wonder why should they be the “mother” or “father” when those people exist?
2. They provide an important option to older foster children who in particular often want to maintain a relationship with their parents and do not want to sever all legal ties, possibly making it impossible for them to even visit. 
3. For mentally or physically disabled parents who are unable to care for children on a daily basis, GAP allows these children in long-term foster care to exit the system, while allowing the birth parents to remain involved in the lives of their children, share their estate, and allow their children to collect benefits, such as military or disability, which they are only entitled to as their children.

Less Expense to Taxpayers 

In addition to the benefits to grandfamilies, subsidized guardianship placements can be supported at less expense to all taxpayers because there are fewer administrative costs than with managing and overseeing an open foster care case.[2] Caseworkers, judges, and child welfare agencies have to be paid for their time and expenses doing frequent home visits and reviews that are not necessary for these safe and stable grandfamilies. These costs are well spent to protect other children placed in short-term living arrangements where success and safety must be monitored, but are not necessary in successful long-term living arrangements where other permanency options have been ruled out.

Although no state legislation is required to implement the GAP option under the Fostering Connections Act, some states have passed laws as a first step: Arkansas, Colorado, Michigan, New York, Texas, Vermont, and Washington. See sample legislation.

States, Tribes and Territories Approved to Operate GAP Programs
In order to take the option, states, tribes and territories are required to submit an amended Title IV-E Plan to the U.S. Department of Health and Human Services/Children's Bureau for its approval. As of May 2023, forty-two states, the District of Columbia, eleven Tribes or Tribal Consortia, and Puerto Rico and the Virgin Islands have obtained approval.

The eleven tribes are: the Aleut Community of St. Paul Island, the Cherokee Nation, Eastern Band of Cherokee Indians, the Keweenaw Bay Indian Community, Kenaitze Tribe, Mashpee Wampanoag Tribe, the Navajo Nation, Penobscot Nation, Pascua Yaqui Tribe, Port Gamble S’Klallam Tribe, and Tolowa Dee-ni’ Nation of Smith River, California (formerly Smith River Rancheria).

The forty-two states are: Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa,  Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming

At least twenty-six of the states, and the District of Columbia, also allow children who are not Title IV-E eligible to exit foster care into subsidized permanent homes with relatives.[3]   The jursidictions use their own funds to pay for these programs and can create their own eligbility criteria.  For example, some choose not to require six months with the relative or do not require the relative to be licensed.
 

Most of the forty-one states and the District of Columbia approved to take the GAP option had state subsidized guardianship programs prior to the Fostering Connections Act and modified their existing programs to be able to use federal funds through Title IV-E, while keeping a state program for those children who are not IV-E eligbible.  Some of the states that did not have state subsidized guardianship programs prior to taking the GAP option also enacted parallel programs for those children who are not IV-E eligible.  One of the most recent states to add a parallel state program was Alabama.

Through a Program Instruction issued February 18, 2010, The Children’s Bureau at HHS has made clear that agencies can use the Title IV-E GAP funding for those children who were receiving guardianship assistance under state programs prior to the passage of the Fostering Connections Act, as long as those children meet the eligibility requirements of the Act.
 

Programs for Children Not in Foster Care 

All of the these GAP programs and most state subsidized guardianship programs that preceded GAP are for children exiting foster care.[5]

The District of Columbia and Louisiana have state programs that do not require any type of current or past contact with the child welfare system or prior court involvement.[6]  

The District of Columbia has what it calls a "Grandparent Caregivers Subsidy Program" for low-income caregivers who are not involved with the child welfare system.  The latest information about that program can be found at http://cfsa.dc.gov/service/grandparent-program. 
 

In 1999, Louisiana established its program known as the “Kinship Care Subsidy Program,” financed throught its state grant of federal TANF funds.  Grandparents, step-grandparents or other adult relatives are eligible for an enhanced TANF payment --which is $100 more than the state's TANF child-only payment, but still roughly half of the state's foster care rate -- if they satisfy the following requirements: (1)  possess or obtain within one year of certification, either legal custody or guardianship or provisional custody by mandate of the eligible child who is living in the home. Provisional custody by mandate is a notarized authorization made by the child´s  parents to  provide care, custody, and control of a minor childt; (2) have an income of less than 150 percent of the federal poverty level; (3) have neither of the parents living in the household; and (4) agree to pursue the enforcement of child support obligations against the parents.[7]  For the most recent information about the program, see http://dcfs.louisiana.gov/index.cfm?md=pagebuilder&tmp=home&pid=466#undefined

Hopefully, with the growing success of GAP and lessons learned from the 55 jurisdictions that have taken the option, we will see more states and tribes provide financial assistance to grandfamilies outside the foster care system who obtain guardianship or legal custody of the children in their care.  This type of preventative strategy helps prevent children from entering the foster care system in the first place.

State subsidized guardianships programs had seen a dramatic increase, quadrupling in the decade prior to the Fostering Connections Act. In 1996, about ten states had these programs; in 2000, the number of states grew to fifteen; and immediately prior to Fostering Connections becoming law, 38 states and the District of Columbia had programs. It was due to the success of many of these programs that advocates pursued and obtained federal financing of GAP through Title IV-E.

Massachusetts started the subsidized guardianship trend with its program in 1983. It began as a regional demonstration to provide permanence to teenagers living in stable foster homes who could not or did not want to be adopted. Three years into the demonstration, researchers found the majority of children thriving with their caregivers.[9]
 

Most states that joined Massachusetts within the next decade began their programs in response to cultural concerns that were causing children to remain in foster care, since their only other viable permanency option was adoption. Colorado, Nebraska, New Mexico, and South Dakota have significant Native American populations who are reluctant to adopt children of living parents. Alaska and Hawaii also began their programs in response to unique populations with similar cultural traditions. These early programs served small numbers of children, but they provided an important alternative to children for whom reunification with parents or adoption was not possible.
 

Although subsidized guardianship programs had been proven successful and the federal Adoption and Safe Families Act of 1997 recognized both guardianships and adoptions as avenues for creating permanence for children in long-term foster care, aside from the limited Title IV-E waivers, the federal government did not provide federal reimbursement until the Fostering Connections Act. That financing situation created a strong disincentive for states to move children from a foster care system with reliable federal funds to a subsidized guardianship program that might not continue to be financed. As a result, prior to the Fostering Connections Act, 20,000 children for whom adoption and reunification were not possible were languishing in the foster care system -- thereby inflating its numbers -- and the federal government was effectively limiting permanence for them.[10]

California[11] and Illinois[12] are excellent examples of states that used their subsidized guardianship programs to transition more children to permanence. Each program contributed significantly to its state’s reduction of children in long-term foster care. Between 1999 and 2003, the number of foster children living with relatives for more than 12 months decreased by 45.5 percent in Illinois and by 65.2 percent in California. More states can accomplish this too if they implement the GAP option allowed by the Fostering Connections Act.

About ten years before the Children's Bureau approved California to take the federal GAP option, California enacted its own subsidized guardianship program, known as KinGAP. The lessons learned from the enactment of KinGAP in 2000 are still important and useful. According to Joni Pitcl and Kathy Watkins, professionals working to help grandfamilies in California, it was a convergence of factors that led to success enacting KinGAP: 

1. several reports were released pointing to the need for additional avenues to permanency, in addition to adoption, for grandfamilies;
2. two statewide summits explored subsidized guardianships;
3. data showed disproportionate numbers of minority children languishing in foster care; and
4. a TANF surplus that required finding ways to reinvest those federal funds.

The TANF surplus is what caused California to start thinking seriously about subsidized guardianship. Around the same time, California happened to have a “working summit” on grandfamilies and a state summit on adoptions. At the adoption summit, a number of state and county leaders and advocates identified the need to look more closely at subsidized guardianship to help children with relatives who were languishing in foster care. At the kinship summit, permanency was identified as one of the primary areas that needed to be discussed, because participants found relatives were reluctant to adopt yet wanted permanency for children.

The University of California at Berkeley had been tracking relative foster families and had a rich source of data on these families; several key reports also became available. The data showed that children in relative foster care were remaining in the system for years. It further showed that the disproportionate number of minority children in foster care appeared to be living with relatives and not exiting the system. Subsidized guardianship emerged as a responsive way to help address these issues. 

In addition to grandfamilies themselves, KinGAP legislation had the support of many state and county leaders, most children’s advocates, and legislators with an interest in child welfare. In the early stages of advocacy, the state Department of Finance and some members of the legislature had concerns about the cost. Additionally, some adoption advocates thought that guardianships might not provide children with enough permanency. To respond to this concern, advocates agreed to include a five year study in the legislation calling for an evaluation of subsidized guardianship.

The fiscal concerns were addressed by demonstrating that subsidized guardianship was a fiscally sound policy. Since estimates were not available, advocates did their own calculations that showed social work, court, and administrative cost savings. Those savings were calculated based on the documented advantages of relative foster care over other types of foster care, such as children changing placements fewer times, families requiring less number of visits from social workers, and fewer court and administrative costs. Ultimately, advocates were able to show that KinGAP would, at a minimum, be fiscally neutral, but would probably save money.
 

In order to enact the legislation, a compromise was made that impacted grandfamilies with special needs children. In California, children with special needs who are Title-IV-E eligible and receiving the basic foster care rate qualify for a higher monthly payment, in addition to a clothing allowance. The initial KinGAP legislation envisioned that these children who exited foster care to guardianship would continue to receive this higher amount and allowance. During negotiations, advocates agreed to drop the higher monthly payment and clothing allowance because opponents were fearful of the costs. This compromise had the effect of discouraging children in foster care with special needs from exiting the system. Most relatives raising children with special needs essentially could not get KinGAP without losing a significant amount of support.
 

Once KinGAP was implemented, the program yielded savings and other positive results. Based on these successful outcomes, legislators changed the law so that families with special needs children could receive the higher monthly payments and clothing allowances after exiting the foster care system to KinGAP.  Based on their experience with KinGAP, Ms. Pitcl and Ms. Watkins have some advice for others considering subsidized guardianship legislation:

Support informal relative caregivers outside of the child welfare system also. Informal relative caregivers are vocal advocates, and their numbers are larger. It was useful in California that legislation to provide state resources to support informal caregivers was enacted prior to KinGAP. Another possible strategy would be to introduce legislation for those outside the system as a package with subsidized guardianship legislation.

Secure solid research and get the support of all involved entities. Engage relative caregivers in focus groups at the beginning and in every part of the process. Their voices need to be heard.

Clarify the legislative intent in the language of the law. Subsidized Guardianship was intended as a way to offer another choice to families to exist foster care to permanent homes, when it is appropriate. Initially some judges saw subsidized guardianship as a way to simply exit children out of foster care regardless of whether it was in the children’s best interest. Subsidized guardianship was not intended as a vehicle to get children off the foster care case rolls and forget about them. If the children and family need the ongoing level of support and services that foster care can provide, they should not be pressured against their will toward either adoption or guardianship.

Insert legislative language that program savings must be reinvested into preventative child welfare services. Advocates had to work each year to ensure that savings yielded from KinGAP were reinvested into these services instead of being used for other purposes. Language in the legislation would have prevented these ongoing battles.

Include automatic payment increases in the language of the law. For example, insert specifics in the legislation that when foster care payments increase so do GAP payments. Advocates had to make sure each year that the KinGAP program got the same increases as other programs.