Kinship Diversion: A parallel system of foster care

The development of a system of informal kinship care that is parallel to the foster care system has recently begun to receive attention among academics, advocates and policymakers. This second system includes relatives who are caring for children under an informal arrangement facilitated by child welfare agencies through a practice called kinship diversion. This system has been called America’s Hidden Foster Care System by Josh Gupta-Kagan, Associate Professor of Law at the University of South Carolina.  Because most states don’t collect data on this practice, we don’t know how many children are affected, but it appears to be the most prevalent placement for children investigated by child protective services (CPS) agencies and greatly dwarfs kinship care within in the foster care system.

An issue brief from the research organization ChildTrends states that there is no agreement on the definition of kinship diversion, but in general it refers to a situation where a child welfare agency decides a child cannot be safe in a home due to abuse or neglect. But 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 agency, and the relative to keep the children safe. Whether stated or implied, parents know that failure to agree to the plan may result in the removal of their child and court involvement. According to Marla Spindel of the DC Kincare Alliance, sometimes the agency transfers custody of a child without the agreement of the parent, and only the agreement of the kinship caregiver.

The only national data on the prevalence of kinship diversion appears to come from a study of children who had contact with child welfare services within a fifteen-month period starting in February 2008. The researcher, Wendy Walsh, found that informal kinship care was the most common out-of-home placement for children found to be abused or neglected, accounting for almost half of children placed out of home. But these data are over ten years old. The limited data suggest that states are using kinship diversion in many more cases than they are licensing kin as foster parents. According to the most recent national data, 32 percent of children in formal foster care were in a relative home as of September 30, 2018. Gupta-Kagan cites a number of more recent studies in individual states that suggest kinship diversion is being used “with roughly the same frequency” as formal foster care overall–including relative and non-relative caregivers.

Newer data on kinship diversion are greatly needed. ChildTrends used a social worker survey to estimate the rates of kinship diversion in “several” unnamed jurisdictions. The researchers reported that “[I]n some jurisdictions, for every [ten] children entering foster care, an additional [seven] were diverted, while in others there was an equal split—for every child entering foster care, another child was diverted.” Without knowing how many and what jurisdictions were studied, and whether these were the highest and lowest ratios, it is hard to know how to interpret these data.

In addition to information about the extent of kinship diversion, we know little to nothing about how informal kinship care arrangements initiated through kinship diversion differ from foster care. Among the questions raised by ChildTrends are: Do kinship caregivers undergo a background check? Are services and supports provided and to whom? How do the services and supports differ from those provided in foster care? How long do diversion arrangements last? In their studies of three jurisdictions, ChildTrends found that agencies usually initiated background checks but often failed to complete them; an official case is not always opened; and services and supports to children, parents and caregivers are “inconsistently provided” and differ by jurisdiction. The “greatest disparity in supports” was that diversion caregivers do not receive foster care stipends and usually have to rely on welfare assistance to support the children.

As Gupta-Kagan points out, kinship diversion has raised various concerns both ends of the child welfare ideological spectrum. 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. 

Some stakeholders support kinship diversion because they think it is always better to keep children out of state custody and allow families to decide their own futures. In the jurisdictions that it studied, ChildTrends found a wide variety in opinion among stakeholders but widespread agreement (over 90 percent) in favor of kinship diversion among agency social workers in five states.

Gupta argues that the “hidden foster care system” enabled by kinship diversion is “likely growing and it is certainly becoming institutionalized through federal funding incentives, new federal funding which strengthen those incentives, and state policies which seek to codify the practice.” As Gupta points out, there is a strong financial incentive for states and other jurisdictions to use informal kinship care. They avoid expensive foster care payments as well as the expenses of case management and other services to children in foster care and their families. Gupta argues that the new Family First Act further incentives kinship diversion by allowing funding for services to children and their parents for a year or more while they remain in an informal kinship placement.

Gupta fails to mention another incentive for kinship diversion–reducing the foster care rolls–which has become increasingly viewed as a favorable outcome and even (somewhat paradoxically) as a goal of child welfare systems. For example, one of the four pillars by which the District of Columbia’s child welfare agency measures its performance is Narrowing the Front Door, or reducing entries into foster care. Casey Family Programs, the two-billion dollar private foundation with an oversize influence on child welfare policy around the county, still proclaims (somewhat anachronistically) on its website that one of its four primary goals is to “Safely reduce the need for foster care by 50 percent by the year 2020.”

Some kinship diversion critics, like Gupta-Kagan, argue for more regulation of the practice to require appointment of attorneys for parents, impose a maximum length of time for safety plans that change custody, and allow parents to seek court review of safety plans.  Others, like Marla Spindel of DC Kincare Alliance, believe that kinship diversion as currently practiced is both harmful and illegal under state and federal law.

There is a case to be made for an outright prohibition on kinship diversion to eliminate the possibility that an abused or neglected child be returned to the parents before a professional can assess that the child is safe. Custody changes involving CPS would have to take place through an official removal subject to court approval, leading to formal foster care, or through a time-limited Voluntary Placement Agreement (VPA, which is allowed by federal and state law). A VPA can be used to place a child with a relative for a limited time period (such as 90 or 180 days) with the requirement that court proceedings be brought if reunification with the birth parent is not achievable in that timespan.

DC Kincare Alliance (DKA) and the law firm Ropes & Gray has filed an unprecedented federal lawsuit against kinship diversion in the District of Columbia. The lawsuit was filed on behalf of three relative caregivers and  three children they are raising. DKA argues 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. The case seeks a court ruling that kinship diversion is illegal and an order prohibiting CFSA from engaging in this practice. It also seeks damages for lost foster care payments “and other injuries.”

As policymakers debate restrictions on kinship diversion, no time should be lost in learning all we can about the extent and nature of the practice today. At a minimum, as proposed by Gupta, states should be required to track every case of kinship diversion to provide information about the total number of cases, the safety and well-being of the children, how long they remain in these arrangements, and how cases are resolved. We also need to know the policies and practices that states are following in terms of clearances, supports, monitoring, and other ways the arrangements may differ from foster care. The hidden foster care system must be brought out of the darkness and into the light of day.