Creating a Family: Talk about Adoption & Foster Care

Kinship Caregivers & The Hidden Foster Care System

September 15, 2021 Creating a Family Season 15 Episode 38
Kinship Caregivers & The Hidden Foster Care System
Creating a Family: Talk about Adoption & Foster Care
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Creating a Family: Talk about Adoption & Foster Care
Kinship Caregivers & The Hidden Foster Care System
Sep 15, 2021 Season 15 Episode 38
Creating a Family

Send us a topic idea or question for Weekend Wisdom.

Kinship caregivers (primarily grandparents raising their grandchildren) are often functioning as a shadow foster care system. We talk with Josh Gupta-Kagan, a Professor of Law at the University of South Carolina School of Law and author of America’s Hidden Foster Care System in the Stanford Law Review, and Karissa Phelps, a Stoneleigh Emerging Leader Fellow at Temple Legal Aid, where she provides legal representation and services to kinship caregivers.

In this episode, we cover:

  • In many cases, child protection agencies induce parents to transfer physical custody of their children to kinship caregivers by threatening to place the children in foster care.
  • How often does this happen?
  • Why do you call this the “hidden” foster care system?
  • Generally speaking, don’t we consider it best practice for kids to remain with extended family? So why is this a problem? Is it inherently coercive?
  • What are the advantages to encouraging placement with kin before they enter the formal foster care system?
  • What are the risks?
  • If this transfer takes place outside of the system, how long does it last? How can children go home? Who decides?
  • How does this differ from informal kinship care?
  • How does The Family First Prevention Services Act of 2018 contribute to the “hidden foster care system”?
  • Do you see kinship placements increasing?
  • What are child welfare agencies doing to support kinship families?
  •  Follow the money: Is it less expensive for agencies to place with kin rather than unrelated foster parents?
  • How is foster care funded?
  • What is the status of kinship navigator programs? 
  • How can we best support kinship families?
  • What do you see as the biggest challenges to kinship families? 

This podcast is produced  by We are a national non-profit with the mission to strengthen and inspire adoptive, foster & kinship parents and the professionals who support them. Creating a Family brings you the following trauma-informed, expert-based content:

Please leave us a rating or review

Support the Show.

Please leave us a rating or review. This podcast is produced by We are a national non-profit with the mission to strengthen and inspire adoptive, foster & kinship parents and the professionals who support them.

Creating a Family brings you the following trauma-informed, expert-based content:

Show Notes Transcript

Send us a topic idea or question for Weekend Wisdom.

Kinship caregivers (primarily grandparents raising their grandchildren) are often functioning as a shadow foster care system. We talk with Josh Gupta-Kagan, a Professor of Law at the University of South Carolina School of Law and author of America’s Hidden Foster Care System in the Stanford Law Review, and Karissa Phelps, a Stoneleigh Emerging Leader Fellow at Temple Legal Aid, where she provides legal representation and services to kinship caregivers.

In this episode, we cover:

  • In many cases, child protection agencies induce parents to transfer physical custody of their children to kinship caregivers by threatening to place the children in foster care.
  • How often does this happen?
  • Why do you call this the “hidden” foster care system?
  • Generally speaking, don’t we consider it best practice for kids to remain with extended family? So why is this a problem? Is it inherently coercive?
  • What are the advantages to encouraging placement with kin before they enter the formal foster care system?
  • What are the risks?
  • If this transfer takes place outside of the system, how long does it last? How can children go home? Who decides?
  • How does this differ from informal kinship care?
  • How does The Family First Prevention Services Act of 2018 contribute to the “hidden foster care system”?
  • Do you see kinship placements increasing?
  • What are child welfare agencies doing to support kinship families?
  •  Follow the money: Is it less expensive for agencies to place with kin rather than unrelated foster parents?
  • How is foster care funded?
  • What is the status of kinship navigator programs? 
  • How can we best support kinship families?
  • What do you see as the biggest challenges to kinship families? 

This podcast is produced  by We are a national non-profit with the mission to strengthen and inspire adoptive, foster & kinship parents and the professionals who support them. Creating a Family brings you the following trauma-informed, expert-based content:

Please leave us a rating or review

Support the Show.

Please leave us a rating or review. This podcast is produced by We are a national non-profit with the mission to strengthen and inspire adoptive, foster & kinship parents and the professionals who support them.

Creating a Family brings you the following trauma-informed, expert-based content:

Please pardon the errors, this is an automatic transcription.

Welcome, everyone to creating a family talk about adoption and foster care. I'm Dawn Davenport. I am both the host of this podcast as well as the director of creating a And that website has lots and lots of information that is available to you to help you on a foster adoption or kinship dirty. So pop over to creating a and check it out. Today we are talking about a topic that I care deeply about. And I read a fascinating article in the Stanford Law Review titled The hidden foster care system. And I immediately said, Yes, that's exactly what we have going on. So hunted down the author as well as someone else who is very, very knowledgeable. So we are today talking about the hidden foster care system. We will be talking with Josh Cooper Kagan. He is a professor of law at the University of South Carolina School of Law. Before becoming a professor. He practiced law at the Children's Law Center of Washington, DC. He has written many articles about child protection legal system, including the one I just mentioned, America's hidden foster care system. And we have caressa Phelps. She is a steadily Emerging Leader Fellow at Temple Legal Aid, where she provides legal representation and services to kinship caregivers. chrissa earned her law degree and her master's of social worker degree from Temple University. And Chris Oh, by the way, what a great combination to get both law and an MSW. Brilliant. So welcome, Marissa and Josh to creating a family. Thank you, Don. Thanks, Dan. All right. In in many cases, child protection agencies induce encourage, we could choose the verb their parents to transfer physical custody of their children to a kinship caregiver. And they do this by threatening if you place children in foster care, and it could be that their children would indeed be placed in foster care. caressa How often does this happen?

That's a great question. And actually, I think Josh might be better at answering it. Um, yeah, reading his article I, it was hard to read, because it resonated so much with so many of the kids that I talked to, but you know, by the time they get to me, they are talking to an attorney. So a lot of these families never even get to a point where they're talking to an attorney. So I'll turn it over to Josh, because he's, he's written a little bit more about this. Yeah. Josh, please.

Sure. So it happens a lot. But we can't give a specific number because the cases are in tracked by state child protection agencies, which is itself part of the problem and part of why we call this the hidden foster care system. For a little context. New when you look at federal data, the feds report numbers that the state agencies provide to them. There are somewhere around 225 or 250,000 children who are removed from their homes to the formal foster care system every year, I think there's somewhere in the ballpark similar numbers of children in the hidden foster care system where their their physical custody has shifted, based on this threat of we're bringing into the formal system if you don't do this, and where I get that numbers is from piecing together a few different data points that are out there. There's one study from 10 or 12 years ago, that finds roughly similar numbers of children who have been the subject of CPS investigations who are with kin, versus in formal foster care. There were some surveys of some select jurisdictions which found similar ratios. And there's been some states that have released some public information. And the bottom line is the number of kids shifted into the hidden system is comparable or sometimes a little less, or in some states a little more than then kids removed in brought into the formal system and brought into Family Court.

And Josh, this is you're not even covering the children who were grandparents step in voluntarily, and are parenting these children so that many of them made it the grandparents are Can I should say, are doing this to keep the kids out of the foster care system, are you including those numbers in the hidden foster care system.

So when when we talk about kinship care, generally, it's really essential to distinguish completely private informal arrangements from anything that involves the state. So a parent decides, you know, I just can't do it right now. It's better for my mom or whoever to take care of my child. That's me done for any sorts of reasons. I am in the military, I'm going to be deployed, I might be imprisoned I might be ill, I might be whatever I might be going into rehab for a while. All sorts of reasons. And these are arrangements that families do on their own all the time. They're incredibly common, as I'm sure you know, and I'm sure your audience knows That's not what we're talking about here. Those are private arrangements where when a parent decides This is what's best for my child, that decision is entitled to respect like any parents decision is,

although I would just want to interrupt and say very often, in the families that we work with, it is not the parents making this decision. It is the most often in cases that we see our grandparents who are coming in and saying, they walk in, and they're saying, I have to take this child away from you right now, because you are not capable, this child has been left alone or, or whatever. So it's not always the parents making the decision?

Absolutely. Absolutely. As a matter of law, if the state's not involved, the parent is sort of making a decision if they don't object,

right, to your point. And it's not what you're talking about. I appreciate that. Okay.

Right. Yeah. And so what we're talking about is when the state comes in, so imagine if in the scenario you just outlined on, imagine if the grandmother or whoever calls the state Child Protection Agency, and they investigate, and they come in, and then they use their power as the state agency, which is a truly awesome power, they have the power to destroy families, and to create families, if they come in, they wield that power, and they say, do this, let the kid put this child in kinship care, or else, we're bringing you into the family court system into the formal system. That's what we're talking about. And it's when we use that that state power is used that that dynamic has changed, and I think a fundamental way.

Okay, and hence why you call it the hidden system. Gotcha. Okay, so generally speaking, don't we consider it best for children to be with extended family if they are not able to be with their birth parents? So if that's the case, why is this a problem? And then Chris, I'm going to turn this to you. And then Josh, I'd like to get your thoughts on it as well. Sure, yeah. So there's,

there's a lot of studies that have shown that kids have better stability, more likely to stay with siblings, they're more likely to have better cultural identity, a sense of belonging, so so many important things more likely stay with their school. So there are so many things that make it really important for kids when possible. But I really emphasize it's, it's not just family kin has their natural circle of support. So it includes people who might not be blood related, but it's keeping kids within their family circle of support. And what really we need to be doing is bolstering those supports. But when the state comes in, and really the state comes in, and there are legal standards that the state is required to prove in order to be able to take children from their parents, because it is a fundamental right for children to be with their parents and parents to be with their kids. So it's a really high burden. And so what is happening in these situations is the state is coming in, and without getting the court involved. So they're not held accountable to that high burden. They're coming in and using these threats of we're going to take your children away, under circumstances that might not meet that high burden. And so they're moving children and taking them away from their parents, without the accountability of the court saying Did you meet that burden that allows the state to come in and move kids around?

I think it's so important to note that this is not something that is being done kind of off the record. It's not being done, where there's any type of review, including traditional review. Josh, thoughts on that about, you know, the dichotomy between wanting to keep kids with family but also not wanting the coercive aspects of removing children from functioning families?

Yeah, I think Chris has said it really, really well. It's, it's about what we're comparing it to. So if we're comparing living with kin to living with strangers in the form of foster care system, or even worse congregate care facilities, absolutely 1,000%. Living with kin, there's lots of research showing that that is better for all of the reasons Chris has said and and I think that's a point of consensus across the sometimes divided in child protection system. But when we're comparing living with parents to living with kin, we have to recognize the starting point for all of our cases is that is that the continuity matters and being removed. Whatever the legal status from the only parent or caregiver a child has known or from the primary parent or caregiver the child has known. That's inherently a trauma, even if there it's far from ideal situation. It that's a first principle of our field. And so if we're comparing, being forced to live with kin, versus staying home with mom or dad or whoever the primary caretaker has been over the child's lifetime, that's a loss right just like being removed from a family and being placed With in stranger foster care is a loss and incident posing a harm. And just as we wouldn't do do a child removal of any kind without it being necessary this we shouldn't. And just like we shouldn't do a surgery, unless that's the only medical intervention that will work, right? Most of us would rather get a pill or some lifestyle change rather than a surgery. Right. By the same token, we don't want to force a separation in the trauma that entails even if the child's going to live with kin.

Yeah, that makes sense. And I'm so glad you said that we we tell our foster families in kinship families, that you know, your child has experienced trauma. And if they say no, they really weren't abused or neglected. Well, number one, they probably shouldn't have been removed. But number two, just the very act of removing a child. And even if it's necessary, it still doesn't prevent it from the child standpoint of being traumatic. So, Josh, what there must be some advantages that are perceived advantages from the, from the state to encourage placement with kin before they entered the foster care system. So whether we call it an advantage or why what would make the foster care system, step in and try to encourage induce placement with kin and not just take the kids into the system? What's the advantage to them? What's the perceived advantage to the children? If there isn't? Well,

we'll start with a perceived advantage to the state. And I appreciate you're sort of using a verbal wink as you try to figure out what the right verb is right? I would go with coerce, right, I think this threat is inherently coercive, right. And I think that the perceived benefit to the state is they think the child needs to be moved, right. And they can facilitate that, without all those pesky due process requirements without lawyers raising questions, without judges raising questions without sometimes losing in court because the state sometimes loses, or sometimes realize that they're gonna lose, and so drop the case, I think the state gets to look good. Because this, everyone is conscious of the trauma that comes from removing children, everyone's conscious that the state doesn't really make a very good parent that being in foster care is not good for most kids. And the state can kind of make their foster care numbers go down by using hidden foster care instead of the formal system. So I think there's there's an advantage there. And finally, there, the state can save money. I think in a lot of ways, this is foster care on the cheap for the state, because they're not paying foster care subsidies, and they're not incurring a lot of the costs that come with the formal foster care system. Those I think are the advantages to the state. I think, despite all the critical things, I've said, there may be advantages to kids and kinship caregivers, and even to parents. But I don't want to move us there till we're ready.

One of the questions I have what are the benefits, of course, I'll direct this to you, what are the benefits that can receive when they when a child is placed with them, because the foster care system has come in and said, if you don't parent this child, we will take them into the foster care system. So what type of benefits do those kinship care providers receive?

So sometimes it is beneficial for kin and they want to stay out in the system. And when that happens, that then it doesn't hold the same, you know, coercive feel to the kin. Um, but some of those benefits would be if kin had a history of criminal history, child abuse history, and so the agency would refuse to license them, then can wouldn't get the kid unless they were informal unless they took the child without having to go through being forced to go through the licensing process. The Another thing is that they don't have the agency intrusion in their house. So they don't have caseworkers all the time. They got people telling them who can be in their house who can't be in their house clearances, they have to do trainings they have to do and they also get more say in what happens with the child. So when it when the county agency takes the child and puts them in foster care, the county or the county or the or the state or whatever, you know, whatever the jurisdiction is, the government takes custody of the child and so they're making decisions on behalf of the child. So where the where they live, where they go to school, all of those kinds of things. When kin are not working through the government and they're doing it informal outside of the system, and they go for custody, then they're the ones who think if they get custody, then they can be the ones to make those decisions on behalf of the child where they live, where they go to school, day to day decisions for them

and how the child is disciplined. We hear frequently, I don't want the state in my business. I don't want somebody telling me I can't paddle him because by golly I was playing I don't have a pair of my kids, everything's worked out just fine. Thank you very much. So you see, we do get that as well.

And don't let me say that the system, if you do paddle your grandchild and you're a licensed foster parent, they will take that child away from you quicker than you can blink. You know, I mean, that's, that's the reality, you just you forfeit a lot of your control over to the agency when you become a foster licensed, licensed foster parent.

Josh, what type of financial support in any form would a kinship provider receive? If they take the child because the parents place them with them? Because they were coerced, that if they didn't place the child with a grandparent or aunt or whatever, that the child would be removed? What type of financial governmental benefits would the kinship family be eligible for?

Not much is the short answer. And that's a real contrast between the hidden foster care system and the formal foster care system. And there's a lot of state by state and individual case variations here In brief, kinship caregivers in that situation could get 10 f child only benefits TANF, commonly known as welfare payments, temporary aid to needy families. And it's typically not very much it's like 200 200, some dollars a month, and the amount can vary from one place to another. Versus in the formal system, that kinship caregiver would be getting the foster care subsidy, which is typically significantly more money and much closer to the actual costs of raising a child 600 800 $1,000 a month, depending on what state you're living in, and what they're exactly how they have exactly set their their subsidy rates. And that's important, because money is important and because taking care of kids are important. And I know for some folks out there will say Okay, come on their family, they should be doing it for love. And and of course, they should be trying to get the government out of out of their, their, their homes out of their lives, like chrissa was saying, and that's fair for some folks. But I don't think it's for me or any of us to be making that choice for others, right? It's that I trust the families to be choosing between those options more than I trust, myself or the state. And that's where it becomes really important. And one last point about the money piece is when we talk about kinship caregivers, and the overlap between kinship caregivers in the child protection system, we also have really good data that kinship caregivers are disproportionately poor. Right? So the this these financial differences we can expect may matter more to them than they would to, you know, lawyers and law professors who probably don't have to worry about paying the bills and putting food on the table. Okay, yeah. Excellent.

Hey, guys, have you learned a lot from what you've heard so far? Today, we are so excited to offer you more expert based content, just like today's podcast, thanks to our generous partners at the chalky being Family Foundation. When you go to the website, Bitly slash jbf support that's bi T dot L y slash jbf. Support, you can find several free online courses on our education platform. There are a great variety of topics that you have to choose from one is like fears example, disciplining, while maintaining attachment pets been a very popular one. And it actually dovetails nicely with kinship families, because their kids may struggle with that as well. Each course is free. And the coupon code is JB f strong, and you supply it at checkout. But you don't have to remember our try to write down because it's on the website page and that website page is bi T dot L y flash JB f support. Are there any studies that have shown the world we've talked about? There's really no no studies or not really, it's hard to get data on how often this happens. But how children fare and in these families? Do we have any studies that that show how children fare? I guess we can't really compare them having been left in their home their birth home, their home, their their birth parents because the children would probably have been removed. So it may be an unfair question. chrissa Do we have any studies along those lines? Sorry, done diagnostic. None that I can point to him. Yeah, yeah, I don't I've not seen them either. So if this transfer of the child to a kinship home takes place outside of the system, how long does it usually last Josh and and who decides when the kids can go home?

I have no idea and that's part of the problem. Not that I don't know, but that we don't know. All right, so the first question like, how long does this last? We really don't know, because the state agencies don't track these cases. And so for kids in the formal system, we do know, we, we know when a child enters foster care, we know when they leave foster care, we know if they leave to reunification, which is the most common we know if they leave to guardianship or adoption, or a Jad or anything else, right. We just don't have that data for kids in the foster care system, one or two states have tracked the Texas did a big reporting back in like 2014, on their hidden foster care system, and they found the good number of kids went home, some number of kids were petitioned and rotten to the formal system. And some just kind of stayed in kind of informal kinship care of in limbo for an extended period of time. So this is a huge gap in our knowledge, and our understanding. And I do think one of the one of the remedies, not the most exciting one, but the one a really important one is to actually start tracking this data, so that we know what's what's what's happening, who decides. So this can be a risk or can be a benefit, right. And this varies case by case and again, goes back to I trust families, when they're fully informed and well counseled, ideally, by an attorney who knows what they're talking about, to decide more than I trust the state. Because if we're in outside of state custody, the family does have more choice to decide, right? If the CPS agency is still in inter intervening, and is still present, they may exercise power over the family. So the family may think, Hey, this, the parents have done better, and they're ready for the child to come home. But usually, when this arrangement starts, the CPS agency threatens the family, both side both the kinship caregiver and the parents. If you violate this, we're going to have to remove the child and go to court. And so they're, they're inserting themselves into this otherwise private situation. And it's incredibly murky legally, because they don't have any legal custody over the child. They just have this threat. Yeah, so the who decides is really a question in the hidden system.

Yeah. And I think we're where you really see the coercion is then the follow up threat to kin and parents is, if you don't take them and, and figure out a family arrangement on your own outside of the child welfare system, we're not going to put the children with you and license you the kinship placement as the foster parent, we're going to put them with strangers. So kids aren't even given the option of either we can figure this out on our own outside of the system, or I can become a licensed foster parent and the children can go into the system and I can be there placement, which is legally an option. It's this follow up threat of you will never see the kids again, they're gonna be placed with somebody else.

I'm having trouble. How does how does that this is a scenario we see that is, I think, going to be increasing. We'll talk about that in a minute. But we also see it a lot right now. Anyway. And that is a child comes is removed from the home by the foster care system. And the caseworkers, look first, to kinship families are they're supposed to, for the finding a place. So they go up to the kinship family. And they say we have Johnny, and we would Can you can you care for Johnny. And then usually they are offering for the kinship the providers to become a foster parent, we see a lot of them that choose not to. So then the child is placed with the it's placed through the foster care system. Because it's not it's not I guess this is not hidden per se. But the status, it looks good on their records, because they're being tracked now for how many children are placed with kin. And so the child is in placed with the family, the family makes it the kinship, family, kinship family makes the decision. They don't want to get licensed or they are fearful that they can't get licensed Are any of those scenarios. So Josh, how does that scenario fit in with what you're calling the hidden foster care system?

So in that scenario for if I'm following you, right, the state agency has started by bringing the child into the formal system. And that triggers all the due process protections that that system comes with. So if the judge sees, oh, there's no basis to remove this child, the judge orders that and the child goes home. If the parents attorney can argue can convince the judge of that the child can go home, if the parents attorney can or the child's attorney can help identify a kinship caregiver and help resolve a licensing issue or if there's any other barrier to a kinship placement as compared to a stranger placement. That can all happen. Right? those checks and balances can be really important and you know your previous questions about what happens after the child's removed. There's so many crucial decisions there. How often will the parent and child get to visit? Will it be supervised or unsupervised? What is the parent have to do in order to reunify? Has the parent met that bar? If they've met it partway? Is that enough? Right? None of these are easy questions. And I would certainly not pretend that they're answered Well, in the formal system, there are plenty of problems in the family court system. As inter we all and I'm sure your retina your listeners are aware, too. But at least there's some due process involved in those questions. And we shouldn't trust any agency, no matter how well intentioned to get all of those questions right all the time.

So so just to sum summarize what you're saying to make sure I'm understanding it. The other scenario I said, which is it's the it's the foster care system that is seeking out the kinship provider and saying, we would like to place this child with you, that is within the system due process is and then all the protections of due process exist. So those children would not count within the what we're calling the hidden foster care system.

If if the agencies go into court and triggering all those due process protections, yeah, that that's, that's what I would call the formal system, not the hidden system. And there are variations and the jargon used for will vary from one state to another, what you're describing sounds like an unlicensed, but court ordered kinship care placement.

So how often does it happen that they show up at a child welfare check, and they realize that they are they believe that there are problems? It's a whole nother issue that oftentimes the problems a CRS actually poverty? Not a neglect. But that's, that's another issue. Let's say they legitimately see a problem. And they don't bring the child in as far as having to take it to court. How does that work? How does that system work? Do they at that point, get on the phone, and Sarah is the parent? Do you have somebody who could take this child? Is that where the hidden system is happening? At that point, Josh?

Yes, so that's exactly the hidden system, there's been some allegation to CPS, CPS agency gets involved. They think there's a danger. And so they sit down with a parent and say, Look, you've got two choices, here we can, we can remove your child and go to court. And that's going to trigger the entire court process, it's going to start the asfa 15 month termination of parental rights clock, it's going to do all these things you may not like and the child may not even be placed with kin, even if you've got someone or you can sign the safety plan or whatever it's called in a particular jurisdiction that transfers physical custody of your child to someone else.

Gotcha. Okay, so it's taking place at that point. And it's, it's what they call it different things, the safety plan or whatever, that they're working out with the parents and child welfare agency is saying at this point, as long as the child is in the safe home, we don't, we won't get involved. Correct. Gotcha. Okay, that makes sense. If you have enjoyed this podcast on kinship, caregiving, and the hidden foster care system, or really any other of the creating a podcast over the years, can you please do us a favor, go to rate this slash creating a family and leave us a rating and a review or a review, either one will take either one, we're not picky. It's a simple way to help us reach others who can also benefit from the great information you were hearing today. The need for resources and support for our kinship families is great. And your rating or review really helps us increase our reach. Again, it is rate this slash creating a family and rate this podcast is all one word and creating a family is all one word. Thank you. Alright, so how does the family first Prevention Services Act? The one of 2018 contribute? How do you perceive that it will contribute or is contributing to what we're calling the hidden foster care system? Chris, if you start with that, and then Josh, I'd like to get your input as well.

So I think it really important thing is that it does prioritize kinship placements, and it has this mandate, we need to look for kin for kids, we shouldn't just be putting them in congregate care placements or general placements, if we can find natural supports natural connections for them to stay with them. So I think the one thing is it has incentivized increase of kinship placements, and also decent advise the placement of congregate care and funding for group care settings. So I'm going to pass the baton to Josh more specifically about how that how the change in prioritization in the incentivize, how would the the incentives change with family first services Prevention Act?

Sure. So the the family first act as a co a couple of things first, as Chris has said, it makes it much harder for states to use congregate care for lots of really good reasons right. And hopefully when kids are in the formal sense That means it there's a greater pressure on the agencies to choose kinship care. On the front end before kids are removed, family first tries to put a finger on the scale for prevention, right, preventing the need for family separation or foster care. And that's in that last phrase is the little bit of ambiguity in the statute, because they in talking about the statute, the the federal Children's Bureau talked to has talked about preventing the need to separate a child from the child's parents because of all the trauma that that entails. But there are a couple parts of the statute itself that talk about preventing a placement in foster care, in that meaning, probably the formal system. And so if this gets back to what a state agencies get out of it, well, they can say, Hey, we're complying with this general push from the family first act to keep kids out of formal foster care by putting them in the hidden system. And what the what the family first act does, as well, is it talks about keeping kids out of foster care through a variety of means, including using kinship placements. And so what that does that I think is actually a little dangerous, and I'm not sure intended, but a little dangerous from Congress is codified this practice of keeping kids not preventing fant Parent Child separations, but preventing foster care placements by using kinship placements, the hidden foster care system, but without providing any kind of regulation about how those placement should come about, and what protections should be in place once they happen.

And this is this is so fascinating to me, because that's exactly how I read the act as well, that it and I wasn't sure if perhaps I was was overgeneralizing, but it seems like it will encourage more children to be placed with kin, which we've talked about at the beginning. We believe that is a good thing. But they're but they're encouraging even before the kids are, the kids are not entering the system, so to speak. And from what you're saying, if I'm hearing you correctly, the problem there is that then the families have no real recourse to argue that this is an unfair removal. Am I hearing you correctly? And I'm not trying to put words in your mouth?

Yes, absolutely. Absolutely. In the other families aren't given lawyers at this point to evaluate the evidence or to advise them. Yeah, this is your best option, or No, it's not. The financial resources are different. There's aren't usually administrative or judicial remedies. Like if you want to say, hey, I've done enough, I should get my kids back now. But the caseworker says, If I take my kids, they're gonna file a court case against me. Right? I can take that risk, which is an awfully big risk, or, but there's no, there's no or there's no alternative remedy available in pretty much any place that I know of.

So what's the solution? Because we want kids to to be placed with kin. We don't want them to be removed. What's the solution? How do we achieve kinship placements? For children who need to be removed? I guess first, we should argue that Well, the first thing would be that we need to make certain that the monies that have been set aside or at least promised to the family first act, to prevent children, you know, to support birth families, and provide resources to them that needs to absolutely happen. But assuming that there is a substance abuse disorder issue, or whatever, and the child has to be removed, how do we go about it? Is it best to is it best, in your opinion, Josh to have the child brought into the formal system, knowing that then they that grandparents may lose some of the grandparents may not either want to become foster parents or may not qualify?

Not necessarily right. So let me first say, and I know you're using it using shorthand, but just the mere existence of a substance abuse disorder doesn't necessarily mean that a child should be separated from parent. I will certainly agree with that. It's funny to say that out loud for you know, for the record, really, I don't suppose there are people who I think would probably like to see hidden foster care never used in the formal system used entirely, you know, write it as you suggest, I don't think that's the best answer because there are real benefits to this less formal system of not having the state take custody of a child in particular, of having families have more have legal custody and have more power over the day to day decision making. That can be really valuable. But I do think we need to have some kinds of due process checks and balances. So that single most important solution I would support is providing attorneys to parents whenever the state is trying to separate Their children from them. Right? So you have an attorney who can, attorneys are really good at kind of bringing order to chaos. I mean, we care about making sure i's are dotted and T's are crossed. And if the state is saying, you got to do X, or we're gonna do y, they're can say, they can whisper in their clients here. Yeah, they really can do why. And so let's talk about whether this is the right option for you. Or you know, what state, you can prove it. And what you're saying is neglect is really poverty. And that's not okay. And I will happily fight this on behalf of my client, and you need to back off, right, by putting an attorney in in that moment, I think is the single best way that we can distinguish the cases where the child might need to be separated from a parent from from the, I think, larger set of cases where they don't.

And I think the distinction here is when families choose to rearrange and have different caregivers for children, when parents are struggling, whether it's substance abuse, or another issue, that that's great families are resilient families are full of strength and resources in themselves. So when they choose to do that, it's wonderful, wonderful for the kids, parents, everybody. The problem is when the government is coming in and rearranging the family, and it's the government's action that rearranges who the children are living with, and that's really where there needs to be checks and balances, not just a caseworker coming in and saying, Hmm, I think this child is unsafe. So I think they need to move. So I think if the government is involved, the agency is involved, and they are going to do any action on the family, then there needs to be some kind of court supervision. So that way, even kin can go and say to the judge, hey, I I don't I don't want to be a licensed foster parent, I would prefer informal and, and creating mechanisms. There are mechanisms, but from what I've seen the court not using them, but the court using those mechanisms to give custody, temporary custody to kinship caregivers to navigate it outside of the child welfare systems involvement. But whenever the government is involved, there should be these checks and balances, meaning they should have to file something in court in order to have a child that's the problem is that nothing gets filed in court, and they are rearranging who the child lives with.

So from what you're seeing caressa What are child welfare agencies doing to support these kin families? Is there anything in the family first act or in any other legislation, which is pushing services, if money services, whatever training I, you know, we're a training organization at creating a family, these these kinship families are not, they're not getting support, but they're also not getting training, and they're raising kids who've experienced trauma, and many of them are raising kids who had prenatal trauma. And these kids, these parents need support in order to better parent these kids, and we don't see them getting it. So from your experience, what, what are trovo for agencies doing? And what are they required to do to support these families are nothing because they're hidden?

Right? So I think that's that's the great question is that when you have kinship caregivers, outside of the child welfare system, there is there they're not getting the support the child welfare system. And so child welfare agencies aren't really helping kinship families that aren't, aren't involved. If they are involved, then then they're going through the licensure. So. So that's a tough question to answer, because so the informal kinship families aren't getting very much support from child welfare agencies. But I think that child welfare agencies who are licensing kin, who are putting kids with kin and going through that formal process, they're doing some great work of, of creating support groups, creating specialized licensing agencies, because can don't plan to become licensed foster parents, and so it's, it's a lot of work for them on the front end to, to get up to speed with all of that. So creating specialized licensing agencies that can walk with can through that, that quick process. But then also, you know, considering their internal policies for keeping track of, of kin of who's been identified as potential resources, because unfortunately, even kinship placements sometimes disrupt and so who can we go back to who can we lean on support when, when maternal grandmother's struggling, you know, his paternal grandfather, also there to help step in and be a support for whoever the kinship placement is? So yeah, there are a number of things that they're doing internally to help kinship and better kinship placements, but for those who are outside, there's a lot of community organizations but the child welfare agencies themselves are. I'm not seeing doing very much.

Josh, is there anything in the family first act or other legislation that would funnel some whether it be money or services You know, one of the biggest things that we were getting ready to have some listening sessions with grandparents or kin, kin providers. And we anticipate because from having other conversations with them, we anticipate what we're going to hear is one of their greatest needs, is understanding their legal rights, understanding what their rights are understanding, understanding the difference between guardianship, a custody, and you know, helping them walk through. And it's, it's, it's amazing and it is hard, and there are a lot of factors they have to consider. So is there anything that you have you read the the family first act or the legislation, which would funnel some services towards these families?

The closest thing I can think of is the are the kinship navigator programs, which I think emerged from an earlier act 2008, Fostering Connections act. And these are grants to state agencies to create kinship navigator programs are just to help kinship caregivers navigate the messy world of different services and supports that they can access. Does it do everything that you are suggesting caregivers want to need? Of course not?

No. And it doesn't do much from the legal and legal aid? Thank you very much for us, are the ones who are stepping up there. But even then, a lot of the legal aid organizations don't have anybody like caressa, who is trained in this area. Is that something that? Is there a move towards that in the legal aid corissa for getting more attorneys in legal aid to understand because this is a specialized area of law, and it's different from other and you know, not everybody, you know, I can't do a state work, but I could do other areas of law. So you know, it's a specialized area. Yeah, I

would, I think it definitely is a specialized area. So very unfortunately, I have become one of the very few experts in the state on kinship care, advocacy and navigating kinship care in in Pennsylvania, which is where I practice. And so I think there need there needs to be more of a push. And I think there's there's a little bit there's some funding trickling up, but it's from foundations, my my position is funded through a foundation I, I know, some other foundations are seeing this as a problem and want to get involved and create positions. But I think there really needs to be some more serious rallying around creating legal expertise in this specific area to help kids navigate their options.

Where I think there has been more progress is in getting attorneys to represent parents earlier on and listen, in at least some corners of the Child Protection System pre petition representation is become quite a buzzword, where families are identified as at risk of coming into the formal foster care system. And an attorney is appointed to represent the parent and can help them with with all sorts of issues that come up, they can help a parent get an order of protection against an abusive partner, they can be a housing attorney, and we're all familiar, I hope with the eviction crisis across our country housing, tons of housing issues that can help resolve Child Protection concerns and a host of other issues. That's where there's an opportunity, I think, to get attorneys for parents early on to help resolve some of these issues before there's ever a parent child separation. Beyond that, I would echo everything Krista said said and I would say to any budding young attorney listening in, please look into this field, whether it's parent rapper, kinship, caregiving rapper or child rapper, even agency rep, there's tons of good work to be done. And if you're really ready to run a foundation, please reach out to me or caressa or dawn or any number of other people and we can can find some good places where you can invest some money and get a real good return on your investment. There's also really good emerging research about very real benefits to high quality parent representation and other kinds of representation in our field. Yeah, that's the issue.

Yeah, I think that's such an important point, Josh, about the parent representation, because a lot of times can don't have don't have the right to have an attorney. And so it doesn't make sense for them to be represented. So a lot of my work has been advising kin as opposed to representing them and being there, their attorney, their counsel. And so I think it is so important that the parents attorney position is really bolstered and so I don't know that to better kin, kinship care, kinship, advocacy, that kid necessarily have to always have a lawyer but there needs to be people who are specialized in navigating and kinship issues and kinship advocacy. And being a lawyer does not hurt.

No, but you don't have to be because your rights. I mean, it doesn't hurt I as an attorney, I would certainly agree but they But it does. But somebody's just helping to figure out some of the really basic things they need it, should they become a foster parent? Should they seek for guardianship? Should they try to adopt? I mean, what are all the different ramifications from this? And I think you can, you could advise without representing and without them having to, to have you as a as a representative. Josh, you mentioned the kinship navigator programs. And this may be this may be outside of an area you know much about but what is the status of those throughout there is such variation in what the states have done with the money that how effective are they just what's the status of them?

I don't think I can answer to in too much detail other than I think the status varies on where you are, because some states have them and some states don't. And they're trying to in some states have them and are trying to renew their grants or get it get a new grant or or whatever else. So there's a lot of variation among those a lot of variation throughout our field from state to state and county to county. But I think, especially on this issue. Beyond that, I don't think I can speak with any expertise.

And I don't know, Chris, do you know outside of Pennsylvania, you guys have a strong program, it seems to me from what I've looked at kinship navigator program, do you know outside of Pennsylvania,

I do know there. And I'm trying to remember if it's New Mexico or Nevada, one of the states out there, it has a program that's a couple years older than ours in Pennsylvania, and I've heard they're doing really great work. What I have observed is that it's a huge burden. I mean, there's so much to cover. And so when you have bet, it's really great idea in theory, and I think it's just gonna take a few years to really develop programs that are comprehensive, that really are able to reach every corner of the state, you know, we have states that have urban areas that look in and act very different than rural areas. And so, so I think it's a really great, great program. Great idea. And I think it just is going to require a lot more work in advocacy to really make those programs and all the states really strong.

Well, and the nature of a navigator program is is by its name there. They're not providing services, or those some do. But they're trying to provide connections to services that already exist, or that's how I have understood or seen many of them, how they play out, which is a valuable service. Not trying to congregate everything into one, you know where everything has to be provided. But but letting people know, I just yeah, I'm always curious. Josh, is there any thoughts that how foster care is funded and how changing the funding for foster care is going to happen or how any of that might influence the issue of both the hidden system as well as providing more support for kin families.

But I would say in the formal system, there is decent financial support for kinship for licensed kinship foster parents, right, in terms of those much larger foster parents subsidies, which Kate that I mentioned earlier that that, you know, 600 $800,000 a month to help take care of a child. And those can transform into permanency subsidies, subsidies, guardianship subsidies, or adoption subsidies and can go on till the child has grown, depending on the state and the exact details of the case. That's what a primary benefit of the formal system, you know, you asked about reforming the financing of foster care. It's a huge, huge issue. Right? I think if you're out there, and you're wondering, wait a minute, why are foster parents getting 600 800 $1,000 a month to take care of children? Couldn't we give that to the parents who are struggling? And wouldn't that helps a lot? And yes, yes,

it would. And it is kind of the essence of Isn't it? Isn't that the essence of the family first day?

I don't think so. Actually, I think that some of the rhetoric of the family first act, but I don't think that's what the family for a sec actually does. It talks about the family first act as it provides money for states to use certain services, right, it envisions they pair a family that's struggling not struggling financially, but struggling to get services. And that can be a real benefit. There are of course, families that could benefit from mental health services and substance abuse services at all, all of that. And there are families that could benefit from some cold, hard cash to put it bluntly. And, you know, the best thing I think that's happened for Child Welfare in this country in the last few years is the per child tax credit that is now landing in most parents bank accounts every every month, and to listeners out there, if you're like that, call your representative and your senator and tell them to make sure they pass it through Congress. It's going to be debated over the next month or two. That sort of thing for families writ large. I think it actually keep a lot of kids out of foster care.

Yeah, because kids are sometimes taken because parents don't have money to pay rent and things such as that. So you know, cold, hard cash. Yeah, it spins. And sometimes that's what what we need. Let me pause here to thank hopscotch adoptions. They have been one of our longest supporters of this podcast. They have stood by us through thick and thin and we are so very appreciative. hopscotch adoptions is a Hague accredited international adoption agency placing children from Armenia, Bulgaria, Croatia, Georgia, Ghana, Guiana, Morocco, Pakistan, Serbia, and Ukraine. They specialize in the placement of children with Down syndrome and other special needs. And they also do kinship adoptions. They offer home study services, and post adoption services to residents of North Carolina and New York. chrissa. And I'm going to turn to Josh too, but this may be more in your bailiwick. What is the this is kind of a selfish question, because it's one that our organization is currently kind of wrestling with. And that is, what do you see is the biggest challenges to kinship families. And I would say those outside of formal foster care whether they are guardianship families, or whether they are in the hidden system, what I think is because I think some of the similarities would be there. What are some of the biggest challenges that you see for these families?

So I definitely think there is a lack of information. And that's both informal and formal, but a lack of information of what are my options? I have so many families that I talked to that say, should I file for custody? Can I file for custody? What does that look like? What does that mean? How is guardianship different than custody? on record? What we hear Yep, yep. So I think there needs to be very comprehensive. And by comprehensive, not just like complicated and dense, I mean, actually understandable materials and information, whether that's someone they can call in and navigate a program or organization like yours that they can talk to, to get information about, specifically around custody, right. So a lot of in my practice, families start to run into issues or a lot of these informal arrangements, parents are able to consent to things. And if they have a working relationship with the parent, then when they, the child needs their wisdom teeth removed and has to go under general anesthesia, parent can sign off on it. Where kinship caregivers start to run into problems is when the relationship with the parents isn't so friendly isn't so cordial, or the parents disappear. And they can't track down the parents. They're having a hard time figuring out there's homelessness, there's mental health issues, substance abuse issues. And so then they're not able to get kids, the school services, the dental medical services, even therapeutic services that they need, because they don't have parental consent. And so that's where they're saying, Well, what are my options? Can I get something from the court because this little signed affidavit that I have from the parent isn't being accepted anymore? At this point. So I think there needs to be some some really good resources about how to file for custody, who can file for custody, and that I think that's a really important thing. That's a big challenge. And then I think that also our system really sets kin and parents up to, to be pitted against each other. And I think what so often, we all need to remember when we're working with Kim, or working with families is to create more of a team mentality, a support mentality, there's a lot of hurt, and even trauma and history that happens in families. And so it can be really hard to navigate all of that. But I think families need need even just the support to be reminded of we're working together, how can we how can we figure out and do what's best by this child, by this by the parents, you know, to make sure that the child is doing well, which is everybody's goal,

and normalizing the, what they're going through, and helping them understand that their frustration, their anger, their shame, their guilt, and all of this, that they're not alone. And that others that this is a fairly typical, and just normalizing it. So because some often there is, there is shame, and there is and there's anger, and there's, it's a complicated situation. And and there's not a whole lot we can do to take that complication away. But we can try to support them through thinking through some of the both their options, but also just from an emotional level, helping them do that

they need and in working with kin was a desire to have like peer support groups to hear exactly that because it can be so isolating all of a sudden, you're taking on this big responsibility. And so you don't have time for your friends, your significant other your work in a way that you used to because you're dedicating so much of your time and energy towards caring for kids. And so yeah, and there's some even some, some ambivalence about that and being angry about taking on this role and you love these kids. But do you really want to do this and then you feel guilty? Because you're questioning do I really want to take care of my grandkids and so all of that is really complicated. So I completely agree I think kids need to need to hear they're not alone in that those feelings are normal and and be able to work through that. So they can care for the kids well, or decide that they're at a place where they can't care for the kids well and plan for, okay, what's the next best safe option for where the kids can stay?

Both? Let me just do a shout out, creating a family has created support group curriculum that can be used for kinship families. It's, it's for any families raising a child who has experienced trauma, which by definition, children who are in kinship care have been removed and experienced trauma. So we do have, we would love to say Our mission is to increase the number of parents support groups, especially for kinship families. All right, Josh, I'm gonna give you the last word. I know that this is a little further afield from from the hidden foster care system. And I think that you would probably say legal representation for for parents before the children get removed is one of the greatest needs. Are there any other needs that would be specific to kinship families that you have seen that you could show?

Sure. So I do think we need to think about financial supports to kinship caregivers, especially outside of the formal system. So there's a little bit more equity there. And I do think we need more folks like chrissa there's a real Legal Aid question for for kinship. caregivers, we both of you spoke about understanding options as one of the key issues. And you know, if you went to go buy a car, and the salesman said, Well, here are your financing options, you would know that they've got a vested interest, and they're trying to upsell you because

it works, because they're not going to tell you it's just gonna cost them more money to have to pay you you may not hear about it from them.

Exactly. And one of the things that we found when guardianship was subsidized guardianship was first introduced, is in some states workers were eager to share that news with kinship, foster parents, and in some states, they weren't right. And that mattered in terms of how often guardianship was used. And it's certainly true in the hidden foster care world whose Oh, all witches did to underscore the theme that have probably started to beat the dead horse is that we, we shouldn't be trusting agencies to get everything right and share every bit of information that is that carry that parents and children and kinship caregivers need without other people independent of the agency being involved. And I think lawyers are really good at checking agencies like that.

But what a great note to end on. Thank you so much, Josh Gupta, Kagan and caressa Phelps for talking with us today about the hidden foster care system and how it impacts kinship caregivers. And for everyone else. Join us next week. I will look forward to talking to you then

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