Broaden Kinship Guardian Definition

First, the measures makes two changes to fill significant gaps in the definition of individuals eligible to be appointed as kinship guardians of children in foster care. It would amend the definition of "prospective relative guardian" in subdivision three of section 458-a of the Social Services Law to include prospective guardians who are related to only one of a sibling group, thereby allowing sibling groups to continue to be placed together. Thus, the half-sibling of a child could be placed with that child's prospective kinship guardian even though the half-sibling is not related by blood, marriage or adoption to the prospective guardian. Further, it would add as prospective guardians those "with a positive relationship with the child, including, but not limited to, a step-parent, godparent, neighbor or family friend." Both of these changes are consistent with practices and definitions used for foster care, thus allowing continuity of care by authorizing a permanency option consistent with children's prior placements and, importantly, preventing the breakup of sibling groups. Under Federal law and under section 458-a of the Social Services Law, in fact, a prospective guardian must have cared for a child for six months as a foster parent, underscoring the importance of utilizing consistent definitions. Similar to this measure, regulations of the State Office of Children and Family Services define prospective kinship foster parents to include, but not be limited to, "a child's godparent, neighbor, family friend or an adult with a positive relationship with the child." See 18 NYCRR § 443.7(a)(2).

Both of these changes are clearly permissible and thus reimbursable under Federal law, since the law authorizing KinGAP specifically delegates to the states the authority to define prospective guardian relationships and does not use the term "relative" or "kinship." See Fostering Connections to Success and Increasing Adoptions Act of 2008 (Public Law 110-351; 42 U.S.C. § 675(7)).* The Federal Act specifically authorizes states to include half- siblings who may not be related to the prospective guardian, a feature explicitly contained in the laws of the following eight states: Idaho, Michigan, Minnesota, Nevada, North Dakota, Rhode Island, Tennessee and Wisconsin. Current New York law, in limiting prospective guardians to those who are related by blood, adoption or marriage, uses a far narrower definition than that which is used in the vast majority of states that receive federal guardianship assistance. As of 2015, the following 31 jurisdictions utilized a more expansive definition that includes "fictive kin," many of which utilize factors similar to the instant measure: Alaska, Arkansas, California, Colorado, District of Columbia, Georgia, Hawaii, Kansas, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Washington, West Virginia and Wisconsin. Among states not including "fictive kin," some nonetheless utilize a definition broader than that used in New York; Illinois, for example, includes god-parents and step-relatives and spouses of relatives and step-relatives, while Michigan includes putative fathers.

Second, this measure would rectify an anomaly in section 458-a of the Social Services Law, i.e., that continued KinGAP assistance under current law is only available beyond the age of 18 if the Guardianship Assistance Agreement did not commence until the child was already 16 years of age or older. This means that a child 14 or 15 (or younger), who may want to go to college or participate in a vocational program while living in the guardian's home, would be foreclosed from a permanency option that may be the best, and often the only, option available. Such children are faced with an untenable choice: to delay permanency until they reach the age of 16 (thus costing the State and county continued foster care assistance), to limit the assistance available only until they age out at 18, or to sacrifice the kinship guardianship permanency option altogether. The original justification for the age limitation was that Federal reimbursement for extended KinGAP assistance is only available for youth whose KinGAP agreement commenced on or after their 16th birthdays, pursuant to 42 U.S. § 675(8)(B)(i)(III). However, even if Federal reimbursement is foreclosed for a limited number of youth, it would clearly be cost-effective to make the KinGAP permanency option available to the youth in order to expedite permanency for them and permit their exit from foster care. In fact, Bryan Samuels, former Commissioner of the Administration on Children, Youth and Families of the United States Department of Health and Human Services, the Federal agency charged with oversight over State KinGAP programs, cautioned that a state policy restricting KinGAP to children over a certain age "may not serve an individual child's best interests." For these reasons, the instant measure would eliminate the age restriction.

Significantly, each of the modifications to the KinGAP statute contained in this measure is recommended in the New York City Administration for Children's Services' Foster Care Strategic Blueprint Implementation Status Report, dated June, 2016, at page 4. Over 300 foster children in New York City were able to exit foster care via KinGAP in Fiscal Year 2016,2 an increase from 119 in Fiscal Year 2013, but a significantly larger number will be able to do so if this measure is enacted. Adding needed flexibility to the KinGAP program will also make it more usable for counties outside New York City, thus providing an important option to expedite permanency for children in foster care throughout the State.

This measure, which would have no fiscal impact upon the State, shall take effect 60 days after the U. S. Department of Health and Human Services has approved a Title IV-E State Plan Amendment for federally reimbursable expenditures.

2017 LEGISLATIVE HISTORY :

Senate 4833 (Sen. Avella) (ordered to 3rd Rdg., Cal. 1550) Assembly 7554 (M. of A. Hevesi) (advanced to 3rd Rdg., Cal. 468)

*The statute neither defines kinship nor requires states to do so, as states are free to define prospective guardians, for example, as in the instant measure, that is, including individuals with a positive relationship with the child, such as god-parents or friends. See "Sample State Legislation Needed to Implement the Federal Kinship Guardianship Assistance Option Under Title IV-E of the Social Security Act (Children's Defense Fund., Jan. 26, 2010).

**See Mayor's Management Report 187 (New York City Mayor's Office, Sept., 2016) available at: http://wwwl.nyc.gov/assets/operations/downloads/pdf/mmr2016/2016_mmr. pdf-.