Contributing Authors: Heather Baker, Jennifer MacBlane and Judge James Payne
October 10, 2017, the Supreme Court denied a petition to hear a child welfare
case about kinship placements decided in January 2017 in the Sixth Circuit
Court of Appeals. The Circuit Court ruled on January 27, 2017, that kinship
foster families are entitled to the same foster care maintenance payments as
unrelated foster parents. D.O., et al. v.
Glisson, No. 16-5461 (6th Cir. Jan. 27, 2017). The court’s ruling primarily
rests on provisions of the Civil Rights Act of 1871 (42 U.S.C. § 1983), the
Adoption and Child Welfare Act of 1980 (also known as the Child Welfare Act,
CWA or Title IV-E of the Social Security Act codified in 42 U.S.C. § 672), and
Supreme Court cases that have collectively interpreted these two statutes to
confer a private right to foster care maintenance payments that is enforceable
by foster parents regardless of whether the foster parents are related or
unrelated to the child(ren).
originated in Kentucky with two children that were placed with their great aunt
following a finding of neglect. The state conducted a standard home evaluation
and criminal background check on the aunt prior to the court ordered placement.
Based on its review of federal statutes and Supreme Court decisions, the Sixth
Circuit’s ruling holds that the enforceable right to foster care maintenance
payments also applies to temporary
kinship placements (specifically, foster care kinship placements). Therefore,
if an agency places a child in an out-of-home setting with a licensed foster
home or approved relative home and does a home evaluation and criminal
background check, then the home will have to be paid irrespective of the foster
parent’s relative status to the child(ren).
In short, this case treats relative and non-relative
foster care placements the same by requiring that foster care maintenance
payments cover the costs enumerated in Title IV-E of the Social Security Act
for all licensed and/or
approved placements, including temporary kinship placements. By denying Kentucky’s petition, the Supreme Court has left
this issue unsettled nationally.
example, the Care v. Kincade case
from 2013 in the neighboring Eighth Circuit (see map) came to conflicting
conclusions by holding that foster care maintenance payments were not federally
mandated. Unless the Supreme Court agrees to hear a similar case from another
jurisdiction, the Sixth Circuit states of Kentucky, Michigan, Ohio, and
Tennessee must now treat approved relative foster placements the same as
non-relative placements by awarding foster care maintenance payments on behalf
of children in state custody.
require a great deal of changes with state laws and regulations—a considerable
shift in funding for these four Midwest states. The Kentucky Cabinet for Health
and Family Services is currently assessing how to apply the court decision. Kentucky
legislators are also reviewing a bill (SB 29) to restore its Kinship Care program
that ended in 2013. Kinship Care would require Kentucky to provide additional
support and services to kinship caregivers and children. In the meantime, there
are 350 children in eligible kinship placements waiting to receive foster care
maintenance payments while the Cabinet determines payment policies that will
comply with the final decision from the Sixth Circuit Court of Appeals.
continue to monitor new developments and will provide updates as additional
information becomes available.