“The hope and intention is that we’re creating some equity around how we’re supporting family members caring for children that are in foster care.” That’s how Rebecca Jones Gaston, commissioner for the Administration on Children, Youth and Families (ACYF), described one of her agency’s new rules to Time in 2023. The rule lets states create alternative licensing processes for relatives of a child to become foster parents without having to meet the same standards required for non-relatives, “consistent with ensuring the safety and well-being of children in foster care.”
Who could object? For years, the media have bombarded us with stories of children placed with strangers because their extended family couldn’t afford an extra bedroom, or aunts who had to endure endless hours of training before they could care for their own niece.
As advocates point out, in many cases the kids wind up with family members anyway—but because these relatives weren’t officially certified as foster parents, they weren’t eligible for the stipend that nonrelatives usually receive. As a juvenile rehabilitation counselor at the Washington State Department of Children, Youth, and Families, explained, “If we were to take the youth and, rather than putting them into a system family, kept them with their own family, who will be there forever, not just until they turn 18, and provide the support, guidance, and training around developing good healthy relationships, how does that not make sense?”
Now states are developing new rules for kin caregivers, and the results are concerning, to say the least. Gaston’s use of the word “equity” is the tipoff. For example, an article in Capitol News Illinois describes the new process for kin in the state’s Kinship in Demand, or KIND Act, unanimously approved by the state senate recently and awaiting approval in the state house: “Relatives would be subject to a personal analysis assessing their criminal record and its potential impact on the child. The bill would allow DCFS [Department of Children & Family Services] to consider, for example, the overrepresentation of minorities in the prison system, especially for minor drug felonies.”
This raises several questions. For instance, is creating different criminal background checks for relatives really “consistent with ensuring the safety and well-being of children in foster care”? Why should we consider the overrepresentation of minorities in the prison system when determining whether a family member’s home provides safe and appropriate placement for a child? And what, exactly, are “minor drug felonies”? We have a word for minor crimes: they’re called misdemeanors.
It should have been easy to see this problem coming. (For the record, I submitted a comment at the time objecting to the ACYF’s rule.) Some rules for certifying foster parents are certainly unnecessary. States have barred foster parents from owning farm equipment or licensed guns (kept in locked cabinets). But the answer to excessive regulation was not to create different foster standards for kin and non-kin; it was to eliminate dumb rules for everyone. Even the foster-parent training that advocates objected to could have been made more convenient and less burdensome. And yes, even a relative could benefit from some of the training that foster caregivers receive. Being a child’s grandmother doesn’t automatically mean that you know how to handle a 14-year-old boy with severe mental and behavioral problems.
ACYF’s new rule was always about criminal records. The truth is that many foster children’s extended families have engaged in the same behaviors as the kids’ own parents. Many abusive mothers were themselves raised in abusive homes. Many drug-using or drug-dealing fathers came from homes where substance abuse was common.
In 2021, the Legal Aid Society sued the State of New York for rejecting the foster applications of relatives because of old criminal convictions. The lawsuit cited the case of a great-grandfather who couldn’t qualify because he pleaded to second-degree burglary 30 years ago. A New York Times story on the case and the lawsuit provides no details about that incident, which, according to statute, could include anything from being in a building unlawfully with the intent to commit a crime to injuring someone not involved in the crime or showing what appears to be a deadly weapon. The great-grandfather’s defense? He “said his case stemmed from the police’s attempt to arrest him on a marijuana charge.” Huh?
Maybe the great-grandfather should be certified as a foster parent because his crime took place so long ago (though the same logic should then apply to non-relative prospective foster parents). Then again, maybe he shouldn’t. There is no reason to trust child-welfare agency workers to make judgment calls about safety on a case-by-case basis. Many believe that substance abuse doesn’t constitute a genuine risk. One could easily imagine their dismissing drug-related crimes, too. In any case, the purported overrepresentation of certain groups in prisons should play no role in their safety assessments. Putting social justice over child safety has been a hallmark of progressive policymaking for years now. Undoing the damage it has caused will also take years of careful effort. The incoming Trump administration has a lot of work to do.
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