by Deborah Yetter , @d_yetter –
A closely watched Kentucky case over whether the state must pay relatives who provide foster care for children in the same way it pays licensed foster care providers appears headed to the U.S. Supreme Court.
Lexington lawyer Richard Dawahare, who recently won a ruling from the 6th U.S. Circuit Court of Appeals that Kentucky must provide such foster payments to relatives, said state officials advised him they have hired lawyers from the Washington firm of Vinson & Elkins to handle the case and will ask the nation’s high court to hear an appeal.
Dawahare said a Supreme Court decision upholding foster payments to relatives would be “huge” for families in Kentucky, many of whom are low-income and struggling with the additional expense of caring for children they have taken in.
“It would be utterly huge,” he said. “Earthshaking.”
The case has attracted national interest among family law experts who say it could determine whether about half the states that don’t offer such payments to relatives — sometimes called kinship payments — must do so, said Rob Geen, director of policy reform and advocacy for the Annie E. Casey Foundation in Baltimore.
“This is the kinship case advocates have been waiting for,” Geen said.
Dawahare said he has received several offers of help with the case from national children’s law advocacy groups.
A spokesman for the Cabinet for Health and Family Services, which oversees foster care in Kentucky, did not immediately respond to a request for comment.
The ruling in favor of paying relatives for foster care has generated enormous interest among the many grandparents, aunts, uncles and others in Kentucky caring for children who have been removed from homes because of abuse or neglect. Many are low-income and struggling to care for children the state would otherwise pay foster parents to take in, Dawahare said.
“The little money they get to help these kids, it’s the difference between being able to pay the rent, to have enough food and clothes,” he said.
But any such payments could be months or years away as the appeal works its way through the legal system, Dawahare said.
Dawahare’s case involved a low-income woman seeking assistance in caring for two great-nephews. The 6th Circuit found that if Kentucky approves foster placement with a family member, the relative is entitled to foster payments.
The state pays licensed foster parents a base rate of about $25 a day, or $750 per month, per child. But relatives who take in children get no such “per diem” payments although they are eligible for limited benefits such as the Supplemental Nutrition Assistance Program, or food stamps, depending on family income.
Kentucky used to offer relatives who care for children removed from homes because of abuse or neglect a monthly stipend of $300 per child under a state program known as Kinship Care. But Kentucky closed that program to new applicants in 2013 because of budget constraints.
Geen, with the Casey Foundation, said advocates believe there’s a good chance the Supreme Court might agree to hear the case because the 6th Circuit ruling about Kentucky conflicts with a ruling in a similar case by the 8th U.S. Circuit Court of Appeals in a Missouri case.
Both address the question of whether federal law allows people to sue to enforce their right to receive payment for foster care. The 8th Circuit ruled against a group of foster care providers who filed suit in Missouri, while the 6th Circuit found that Kentucky’s failure to pay relatives who provide foster care “plainly violates federal law.”
Terry Brooks, executive director of Kentucky Youth Advocates, which supports Kinship Care payments, said the Supreme Court should uphold the 6th Circuit decision because Kentucky’s policy punishes relatives who step up to care for children.
“These are the state’s children and as such deserve state support,” he said. “A caring adult should not be discriminated against because they are a relative.”
Contact reporter Deborah Yetter at 502-582-4228 or at [email protected].
