Onerous Rules Leave Kids Dangling

by Marjorie Shelvy

In Los Angeles County, more than 30,000 abused and neglected children are in foster care placements by order of the juvenile court. The court's order to remove them from parental custody starts with a petition filed by the Department of Children and Family Services.

When the court executes that petition, the children become the responsibility of the department. The court may order the child placed with a willing relative or in a licensed home or institution. More than 40 percent of these abused children are placed with relatives.

All these children should be eligible for federal foster care benefits, but they do not receive them. The monthly foster care grant is higher than Aid to Families With Dependent Children, now called CalWORKs, in recognition that abused children have greater needs. Depending on the child's age, the monthly grant can be $52 to $224 higher than AFDC. Unlike AFDC, the foster care grant increases as the child ages.

Foster care benefits include a small clothing allowance for children in school. For severely disabled children, there is a foster care increment, called a "special needs rate." The clothing allowance and special needs rate are not available in the AFDC program.

The main barrier to foster care eligibility for children placed with relatives is the current interpretation of federal law. (A child placed with a relative is eligible only for the federal foster care program.) Under this interpretation, the child's eligibility for foster care is dependent on the parents' eligibility for AFDC. That is, the parents must have been poor and receiving or eligible for AFDC at the time the court ordered the child removed from their care.

Children who do not meet the federal requirements and who are placed in licensed foster homes - i.e. with strangers - receive foster care benefits under a state program. The relatives' homes must meet the same approval standards, but children placed with relatives are not eligible for state foster care. In short, for children with relatives, foster care eligibility is based on the parents' circumstances, not the child's needs.

A further interpretation of the same federal law denies foster care benefits to children who did not live with their parent within six months before the court-ordered removal. If, for any reason, the department does not file the petition for removal within those six months, the child is forever barred from receiving federal foster care benefits. State law requires that the petition be filed within 48 hours of physical removal.

Take the case of Jean M. The department placed her grandson, Deshane, with her shortly after his birth. The department removed him from his mother because he was born with drugs in his system. However, the department did not file the required court petition, and no foster care benefits were paid. Jean M. had to leave her job and take early Social Security retirement because the infant needed constant care and AFDC was not sufficient to meet his needs.

Seventeen months later, the department removed a second infant, Derek, from this mother at birth for the same reason. He also was placed with Jean. While preparing the court petition for Derek's removal from his mother's custody, the department realized that no petition was filed for Deshane. It added Deshane to Derek's removal petition.

However, under federal law, neither of these children was eligible for foster care benefits. Deshane was not eligible because the department did not file his removal petition for 17 months. Because he had been away from his mother for more than six months, he was ineligible for foster care benefits.

Derek was denied because the department did not have proof that the mother was eligible for AFDC at the time they removed him from her. The mother was homeless and on the streets, and not available to do the required paperwork.

For years, Jean had to support her grandchildren on AFDC. An appellate court eventually ordered that she receive the foster care benefits. However, the onerous interpretations did not change.

Today, children placed with grandmothers, uncles, aunts, cousins, etc., are still regularly denied foster care benefits because of these overly restrictive interpretations.

The denial also ignores the fact that parents are always financially responsible for their minor children. Parents who have income or other means must repay the government's cost of caring for their children. Their children could receive the protection and care they need with no drain on federal, state or county resources.

As inconceivable as it seems, the interpretation of the federal "six months" rule denies foster care benefits to abused and neglected children when the department fails to file the required petition on time. Denying foster care benefits because the responsible county agency did not comply with their legal mandate or because an abusive parent could provide for the children but did not makes no sense.

Marjorie Shelvy is a staff attorney with the Legal Aid Foundation of Los Angeles' Government Benefits Unit.

This commentary originally ran in the Monday, December 23, 2002 edition of the Daily Journal.

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