A growing practice often called kinship diversion has been creating a parallel foster care system of informal kinship care in jurisdictions around the country. This practice has been raising concerns among advocates for parents, children, and the relatives who are raising them. In the District of Columbia, an advocacy group for relative caregivers called DC Kincare Alliance (DKA) has filed an unprecedented suit against kinship diversion.

What is Kinship Diversion?

The term kinship diversion, as discussed in detail in my recent post in Child Welfare Monitor, refers to a practice used in many states and jurisdictions to place abused or neglected children with relatives. Instead of taking custody of the child and requesting court approval for this move, the agency facilitates the transfer of custody to a relative outside the foster care system. This transfer is often effected through a “safety plan” or agreement between the parents, the child welfare agency, and the relative to keep the children safe.  According to Marla Spindel of the DKA, sometimes the agency transfers custody of a child without the agreement of the parent, and only the agreement of the kinship caregiver.

Kinship diversion has raised various concerns both ends of the child welfare ideological spectrum, as a recent article points out. Those who are concerned about parents’ rights worry about the state removing children without due process protections for their parents. Moreover, unlike with foster care, there is no requirement that the agency make reasonable efforts toward reunification or develop case plans prescribing what parents must do to get their children back. Those who are concerned about children’s safety and well-being worry that kin caregivers may return the children to their parent at any time, regardless of safety, or may allow unsupervised visits with dangerous parents. Child advocates also worry that there is no permanency for these children as they move back and forth between parents and caregivers. Moreover, informal kinship caregivers may not receive the same level of screening as potential foster parents. These caregivers and the children they raise do not usually receive the same supports as they would in foster care, including stipends, case management, and mental health, drug treatment and parenting services. If not granted custody in court, these caregivers have no legal rights to obtain medical care, enroll children in school, or approve services, and a parent can come back and take custody of the child at any time. 

Kinship Diversion in the District of Columbia

Like child welfare agencies in many jurisdictions, the District’s Child and Family Services Agency (CFSA) uses kinship diversion, usually through safety plans that are worked out with relatives after a child is deemed to be unsafe at home. And like most jurisdictions, it does not track these cases, so we have no idea how widespread this practice is and how the District compares to other jurisdictions.

It does appear that the District provides more support for informal kinship caregivers than most other jurisdictions. CFSA has long operated a Grandparent Caregiver Program that provides a subsidy to grandparents caring for their grandchildren. The agency recently established, pursuant to new legislation, a Close Relative Caregiver Pilot Program to support relatives who are caring for siblings, nieces, nephews, and cousins who might otherwise be in foster care. Nevertheless, kinship caregivers do not receive as high a stipend as foster parents.  The average subsidy for grandparents and close relatives is about $500 per child per month, compared to about $1100 for foster parents, according to Marla Spindel of DKA. Moreover, these subsidy programs have eligibility requirements that limit who can receive the funding to only related caregivers (not fictive kin such as godparents), living with the child in DC for at least 6 months, with income at or below 200% of the poverty line.  The foster care subsidy has no such eligibility restrictions. Further, the grandparent and close relative subsidies are not entitlements like the foster care subsidy; rather, they have limited funding and relatives may be placed on a waiting list until funds are available. Even more importantly,  caregivers, children, and birth parents do not receive the same level of support through case management and access to services as do children, families, and guardians in the official foster care system.

The Complaint

The amended complaint, filed in U.S. District Court by DKA and the law firm Ropes & Gray on January 27, 2020, states that the District of Columbia (as represented by the Mayor and the Attorney General) has :

for at least the last 10 years, …consistently and repeatedly engaged in the custom and practice of kinship diversion, whereby Defendants remove children from the custody of their parents and informally place them in the care of a relative caregiver, rather than placing the child in foster care with that same relative. Unlike foster children and foster parents, Defendants do not provide diverted children and their relative caregivers with any services or foster care maintenance payments. By ignoring the legally-required removal and placement procedures, Defendants avoid the legal and financial responsibilities to support these children and their relative caregivers….The use of kinship diversion rather than kinship foster care placement deprives both child and caregiver of their rights to assistance, in violation of the United States Constitution, and federal and D.C. law.

The lawsuit was filed on behalf of three children and their relative caregivers, including a six-year-old girl and her aunt; a one-year-old girl and her great-aunt, and a fifteen-year-old boy and his aunt. In all the cases, according to the complaint, CFSA determined that the children had been abused and neglected and would be in danger if they remained in their parents’ care. CFSA informally placed the children with relatives and instructed the relatives to file for emergency custody in court. The Complaint alleges that the agency did not inform the relatives of the opportunity to become a licensed foster parent and later declined all their requests to be licensed.

The Plaintiffs assert that these practices are typical practices for CFSA. They allege that “If CFSA identifies a willing relative that is available to care for the child, CFSA deliberately ignores its responsibility to inform the relative of their option to become a licensed as a foster parent, and typically directs or pressures the relative to file an emergency motion for legal and physical custody, including by threatening to place the child in foster care with a stranger if the relative does not agree to do so.”

The Complaint alleges that CFSA is violating the federal Social Security Act and several DC laws by using kinship diversion instead of removing these children formally and licensing their caregivers as foster parents. According to the Complaint, CFSA’s use of kinship diversion “subverts the formally established procedures for removal and kinship placements and thereby denies diverted children and their relative caregivers the same benefits, services, and protections that foster children and foster parents receive.” Specifically, in the case of children diverted into kinship homes, CFSA does not assess the relative’s home and ability to care for the child, monitor the child in the home, provide services to meet the needs of the child or the birth parent, or provide a foster care subsidy to the kinship caregiver.

The decision on this case could be groundbreaking. According to DKA’s Marla Spindel, two similar cases were brought by relatives in federal district court in Pennsylvania, but both cases settled. No kinship diversion case brought by relatives has ever been decided in state or federal court.

Why Does CFSA Divert?

As  the complaint points out, CFSA already has a formal procedure, called kinship placement,  for placing a child with a relative foster parent, which can include fictive kin such as godparents, teachers, or family friends. There is even a temporary licensure provision that allows these relatives and fictive kin to be licensed provisionally while fulfilling the extensive requirements for a permanent license, and non-safety related requirements can be waived for kin.  Further, relatives in Maryland can be licensed as foster parents for a DC child. As a social worker in the District’s foster care system, I filed numerous license applications for kin in the District and Maryland. But these were all for children already in foster care with an unrelated caregiver. Once a child is already in the system, it is impossible to “divert” that child so in such cases the relative is licensed. But the agency seems to prefer the option of kinship diversion when foster care can be avoided.

It is not surprising that CFSA and other agencies prefer to divert abused and neglected children out of foster care when possible. The most obvious motive is financial. In its complaint, DKA argues that the District has saved “millions of dollars” by kinship diversion. Saving money is likely part of the motivation behind kinship diversion in the District and around the country, even if the District does spend more to help kinship caregivers outside the system than other jurisdictions.

The Complaint also suggests that CFSA has used kinship diversion as a way to “meet certain statistical targets for reducing the number of children in foster care” because the diverted children are not counted as foster children. In 2012, Director Brenda Donald announced a new strategic agenda known as the Four Pillars. The first “Pillar” was called Narrowing the Front Door, or reducing the number of children coming into foster care–a goal that was very much in line with a national trend among child welfare agencies. From FY 2012 through FY 2019 CFSA set numerical targets for reducing new entries into foster care and has been publishing quarterly and annual  “Four Pillars Scorecards” comparing these targets to actual performance. Moreover, the agency has repeatedly congratulated itself for the continuous decline in its foster care population since Fiscal Year 2012, not mentioning that an unknown number of additional children are in informal kinship placements with little or no support from the agency.

There is also an ideological bias toward keeping children outside the foster care system, as described in an issue brief from ChildTrends. There is a widespread belief among many child welfare professionals that it is better to keep families outside the system, and this may contribute to the support for kinship diversion in the District and around the nation.

The Plaintiffs filed their original Complaint on October 17, 2019, and the case was assigned to Judge Thomas Hogan–the same judge who has presided over the LaShawn class action suit since its inception in 1989. The defendants filed a Motion to Dismiss, the plaintiffs filed an Amended Complaint on January 27, 2020 and the District again filed a Motion to Dismiss. The plaintiffs must file an opposition to to that motion by March 20 and the defendants will have some time to respond. Then Judge Hogan will make a decision about whether to dismiss the case. Relatives who step up to care for abused and neglected children are performing an invaluable service, often at great personal and financial sacrifice.  It is hoped that the judge will allow the lawsuit to proceed so that these often-heroic caregivers and their young relatives can have a chance of getting some much-needed support.