Money impacts relationships. And when the money involved is a foster care subsidy to kinship caregivers, it can drive a wedge in relationships between parents and kinship caregivers that should be strengthened, not strained. Unfortunately, foster care funding incentivizes the “relational disruption” endemic to foster care, when it should instead support family members coming together to support each other and their children.
In contrast, Medicaid funding has increasingly supported family members taking care of each other and can provide child welfare with a model for funding family caregiving without disrupting relationships and without even requiring a family court or foster care case.
Consider a mother who lives with her aunt, and they both struggle to make ends meet. The aunt helps the mother take care of her infant child since she has a mental illness and sometimes uses illegal drugs. Her drug use increased following an assault by her ex-boyfriend. The child protective service (CPS) agency learns that the mother has left the child at home with the aunt for days and has even brought the child with her while she uses drugs.
Concerned for the child’s safety, the CPS agency convinces the family court to authorize it to remove the child from his mother’s legal and physical custody on an emergency basis. The CPS agency then describes kinship foster care to the aunt: she can apply for a kinship foster care license, keep the child with her, and get a monthly stipend from the state that will go a long way towards making ends meet.
But that kinship foster payment comes with a catch: the aunt has to keep the mother out of the home. The aunt is frustrated with her niece but is also worried about the impact of CPS’s position; without a place to stay, her niece’s drug use could worsen, and accessing mental health treatment could be harder. And what kind of system pays you to keep a loved one away?
Regardless, the aunt feels she has no real choice. She says yes, and soon is receiving a monthly stipend, while being drafted to enforce the CPS agency and family court’s rules that prevent her niece from living with her.
In this family–a simplified composite of families encountered in my career as a lawyer in the family regulation system, and which represent some significant portion of the more than 120,000 children in kinship foster care on any given day–the aunt is an essential support to the mother.
Any intervention should support both the kinship caregiver and the parent, so they can continue to take care of the child and each other together. Instead, foster care funding rules incentivize, and even demand, damage to these relationships.
When a CPS agency places a child in any foster home (including a kinship foster home), it must pay that caregiver “foster care maintenance payments.” By law, these payments must cover “food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals,” and more, and the law has long prohibited CPS agencies from discriminating against licensed kinship caregivers.
Those payments are significant and tax-free. In New York (where I teach and practice), the family regulation system pays foster parents up to $1,282.53 per child per month, and up to $1,123 per month in lower-cost upstate counties. In Texas, the minimum licensed foster family payment is $812.10 per month. In Florida, it is $517.94 for young children and $621.77 for teens. In Wisconsin, the minimum rates range from $441 to $572. These payments are more than families received from the now-expired COVID-era expanded child tax credit (up to $300 per month per child), more than the average SNAP benefit (under $300 per month per person), and hundreds of dollars greater than the per child amount of TANF benefits parents and other caregivers can receive.
Those payments make a tremendous difference for kinship caregivers. Kinship caregivers, like parents who face family regulation system involvement, are disproportionately poor. It is the rare person for whom an extra $500 or $1,000 a month would not make a big difference. These payments quickly become an important lifeline.
Those payments follow federal rules–the federal government spends more than $8 billion per year, more than 40% of all foster care expenditures, and so states follow federal restrictions. And federal rules require a kin caregiver to keep the parent at an arm’s length: they condition federal funding support for a kinship caregiver who “provides 24-hour substitute care for children placed away from their parents or other caretakers.”
This funding law thus creates a rigid binary: either children live with their parents, or they live with someone else. Living with both while getting a kinship foster care payment is not possible. That rule drives a wedge between parents and trusted family members or friends. The kinship caregiver could help both the child and the parent, but the family regulation system requires them to push the parent away.
Imposing that binary on a range of family structures and dynamics makes little sense. In the vast majority of situations, any danger from a parent living in the home is limited, and can be mitigated by the parent living with a supportive family member. Cases rarely involve parents who intentionally abuse children. Far more frequently, cases involve “neglect,” which often means family regulation agencies and family courts are concerned about a parent’s substance use, mental illness, exposure to domestic violence, or some similar concern; a complete separation from a parent is often unnecessary.
What if the government provided funding to support a trusted family member or friend to help a parent without requiring that person to push a parent away? The parent and kin could work together to keep the child safe, and the financial help would support their relationship with each other and with the child. The funding would prevent the need for a more invasive step: the family separations inherent in foster care.
While foster care funding laws currently prohibit such a step, other complex legal systems provide a model for how financial support can help take care of individuals and support strong relationships.
In particular, consider a growing trend in state Medicaid systems: paying family members to provide home health assistance to disabled or elderly family members. This funding became more common during the COVID-19 pandemic as states sought to keep people out of nursing homes and faced staffing shortages for home health aides. Facing these incentives, at least 37 states used COVID-era funding flexibility to expand ways to pay kinship caregivers to help take care of elderly and disabled family members. That expanded kinship caregiving funding has remained, even as COVID has receded, with 30 states making some form of this Medicaid funding permanent.
This funding can make a tremendous difference for families. Fundamentally, it enables family members to take care of each other, strengthening family relationships through “the intimacy of daily association” (to borrow a Supreme Court phrase). In Medicaid jargon, it is a “consumer-directed” funding stream, meaning the money flows to the kinship caregiver chosen by the person needing assistance. It could avoid the need for anyone to even open a family court or foster care case. And it saves the state money by paying kinship caregivers to help take care of family members in their homes, thus reducing the need for more restrictive and more expensive options, such as nursing homes.
There is another element of Medicaid funding that has long supported keeping families together. For many years, Medicaid would pay for parents to place children with severe needs in residential treatment centers, but not to provide care at home. That created a perverse incentive for parents to separate their own families and place their children in institutions. Congress addressed the problem by creating what are known as Katie Beckett waivers. Those waivers allowed Medicaid agencies to pay for these children’s care at home, keeping families together and avoiding institutional placements.
The same rationale that supports Medicaid’s kinship caregiver funding rules applies when the threat of custody in the foster care system looms. Both help avoid the more invasive and expensive options that separate families, whether that is a nursing home or foster care. Both support the choices that many families would make if they were free of financial pressures: keep families intact, avoid institutions, and support family members taking care of each other.
Yet the two systems treat kinship caregivers differently. When a parent with a disability needs help taking care of herself, many states’ Medicaid programs will pay a kinship caregiver to help take care of her. But if that same parent needs help taking care of her child and the family regulation system is involved, the foster care system will only pay the same kinship caregiver if she kicks the parent to the curb.
The Medicaid funding provides a model for a more supportive funding structure when parents need help from family members or kin. Medicaid funding provides highly valuable funds without conditioning them on separating parents from their children and from adult supports. Rather, the funding supports all the family members working together to help the parent address whatever challenges they face.
Note: This is an excerpt of an essay that was originally published in the Family Justice Journal, and is republished with their permission. Click here to read the full essay and the rest of the issue.
