Preventive Legal Services for Kinship Care: Reducing the Need for Foster Care with Family First

Abstract

This study examines the implementation of preventive legal services for kinship families within the Family First Prevention Services Act (FFPSA) service array. A university research team, contracted by the Title IV-E agency to evaluate the FFPSA programs, interviewed legal staff and kinship caregivers to understand how the provision of preventive legal services impacts the prevention-related needs of families. Findings suggest that the provision of free legal services can prevent children in kinship families from entering foster care by enhancing access to the services needed to ensure youth have legal membership in families that maintain their cultural and community ties. Future implementation should consider preventive legal services in the prevention service array, and how the referral mechanisms and systems of support surrounding kinship families can coordinate to ensure that more children can remain with their families.

Introduction

According to National Kids Count, more than 2.5 million children in the United States live under the care of relatives or kin, a practice known as “kinship care” (The Annie E. Casey Foundation, n.d.; National Commission on Family Foster Care [NCFFC], 1991). Many cultural communities, including communities of color, have historically practiced kinship care, as families leverage their relationships and resources to ensure that children’s needs are met when their parents cannot care for them (Children’s Bureau, 2003; Stack, 1974). In addition to supporting continuity of relationships between the parents and child (i.e., relational permanency), this practice also promotes continuity with the child’s cultural community (i.e., cultural permanency; The University of Iowa, School of Social Work, National Resource Center for Family Centered Practice, 2009). However, barriers to legally formalizing kinship relationships prevent families from accessing the resources they need rendering relational and cultural permanency for these children at risk. Although kinship care maintains connections with families and communities, children in informal kinship care (Child Welfare League of America, 1994), arranged by families without establishing legal authority for relative caregivers, risk being separated from these relatives by child protective services because their relatives or kin are not their legal guardians. In some states, including the Midwestern state where this study was conducted, living in informal kinship care without a legal guardian designates a child as a “candidate for foster care,” flagging the need and eligibility for Family First Prevention Services Act (FFPSA) programs and intervention services. However, when family members try to obtain legal authority for the children in their care, thus avoiding foster care and allowing for access to community-based services and support, legal services are often difficult to access and unaffordable (Slosar, 2022).

Since 2018, the FFPSA has funded in-home community-based services that prevent children from unnecessarily entering the foster care system, including children in informal kinship care. FFPSA implementation in one early adopting state included provision of free legal services for kinship caregivers seeking legal authority over the children in their care. This program, though administered under the umbrella of FFPSA, is supported through state investments in prevention aligned with FFPSA goals and is intended to meet the needs of the local population. Although FFPSA recognizes kinship navigation as an eligible prevention service, preventive legal services represent a unique contribution to the FFPSA service array. Informal kinship families present distinct challenges and opportunities for legal service providers to help prevent children from entering foster care when possible. By increasing support for kinship families through FFPSA, providers open access to legal authority and services to meet families’ needs.

This study examines the implementation of preventive legal services for kinship families as a state-supported resource within the FFPSA service array. Evaluators of the FFPSA programs in this state interviewed legal staff and kinship caregivers to answer the research question: How does the provision of preventive legal services impact prevention-related needs of families? In other words, in what ways does legal support for kinship caregivers serve as a mechanism of prevention, mitigating the need for foster care for children and youth residing with family members. This research has important implications for improving legal services for kinship families in states adopting FFPSA programs across the country and in identifying gaps in services needed to realize legal, relational, and cultural permanency for children in kinship care.

Literature Review

Preventive Legal Services

The use of preventive legal services in child welfare is a growing strategy with the aim of “supporting families and promoting the social determinants of health by addressing upstream legal issues that, if left unresolved, can lead to unnecessary reports to the child protection hotline” (Casey Family Programs, 2021, p. 1). Few formal research studies on preventive legal services within child welfare exist, but emerging evidence suggests that providing multidisciplinary legal supports (typically consisting of an attorney, social worker, and/or parent advocate) can serve as an effective primary child abuse and neglect prevention strategy. Specifically, early legal interventions can make a significant difference in the health and well-being of families (Genn, 2019). Civil legal problems (e.g., housing disputes, accessing economic benefits, disability accommodations, expungement, debt collections) pose a significant risk to the stability of families and increase the likelihood of poverty-related child neglect (Casey Family Programs, 2021, p. 2).

A 3-year pilot in Detroit, Michigan studied the efficacy of prepetition and preventive legal services, specifically investigating the impact of preventive legal services in the prevention of child maltreatment and family separation (Detroit Center for Family Advocacy, 2013). Legal services provided centered around housing stability, record expungements, custody orders, protection orders, and access to benefits. The study indicated that these legal services had a 98.2% efficacy rate in preventing out-of-home placements. This study further estimated a return on investment, indicating a $500,000 cost savings over 3 years.

According to a study conducted by the Legal Services Corporation, a nonprofit organization that promotes equal access to justice and funds legal aid organizations, people living at or below 125% of the Federal Poverty Level do not receive any or enough legal help for 92% of their civil legal problems (Slosar, 2022). Further compounding the lack of access to services for participants is the lack of resources among Legal Service Corporation-funded organizations (e.g., legal aid clinics), resulting in these organizations turning away nearly 50% of requests they receive.

Despite funding and capacity challenges, there is growing momentum nationally to pilot and expand preventive legal services. A partnership between the Barton Child Law and Policy Center and Casey Family Programs supports a national cohort of preventive legal advocacy and prepetition programs and pilot projects across the country (Casey Family Programs, 2022). Further evaluation and research are needed to demonstrate broader efficacy and return on investment.

This study adds new evidence to the body of formal research on preventive legal services intended to keep children from entering the foster care system unnecessarily. In addition, this study examines how these services are implemented utilizing new resources available through FFPSA, how services may be tailored to address the unique challenges of kinship families, and how provision of these services serves as a mechanism for mitigating child welfare involvement.

Kinship Care and Prevention Services

The status and support of relative caregivers have consistently challenged policy and practice in child welfare and social services. The term “kinship care” was adopted by the Child Welfare League of America in 1990 to recognize and distinguish relative caregivers from traditional nonrelated foster caregivers (NCFFC, 1991). The adoption of this term, drawn from Stack’s (1974) All Our Kin—Strategies for Survival in a Black Community, occurred during a dramatic expansion in the number of relatives caring for children, resulting in part from court decisions, the crack cocaine epidemic, and concentrated neighborhood poverty (Testa, 1992). Policies and court decisions have over time highlighted shifting perspectives from holding relatives legally responsible for children (justifying limited assistance, Testa, 2020) to accounting for the racial and economic disparities impacting families that rely on kinship care (justifying an expansion of assistance, Gleeson, 2020). Many questions raised during the later part of the 20th century about the role of the state in providing for children in kinship care continue to be debated today (Berrick, 2020).

Over the last two decades, kinship care has become increasingly preferred in the child welfare context (Casey Family Programs, 2018) in part due to a growing recognition that stability and permanency include aspects of connectedness beyond legal definitions of parental custody (Gleeson & Craig, 1994; Testa, 2020). While kinship families have a long history in the United States, only recently have they been formally acknowledged by the child welfare system as viable options for supporting children to prevent their placement into the foster care system and to facilitate more positive experiences and outcomes among children when they do enter foster care. Although much attention is paid to kinship foster care, where children are cared for by relatives while in state custody, this population represents only 9% of children living in kinship care, compared to the nearly 40% living in private kinship care arrangements, with no intervention from the state or courts (Testa, 2017). Notably, the FFPSA established a dedicated funding mechanism that allows jurisdictions to receive ongoing federal funds for up to 50% of the costs of administering kinship navigation services to private or voluntary kinship families (Casey Family Programs, 2018). While kinship navigation programs have existed through private funding and federal discretionary grants prior to the FFPSA (Casey Family Programs, 2018), this federal legislation affirms the relevance of kinship navigation as a key component of the prevention service array and helps to facilitate the development and sustainability of the programs (Testa et al., 2020).

Given the increasing attention to kinship families since the early 2000s, researchers have contributed to growing evidence of the unique circumstances of kinship families. The existing literature on kinship families’ needs and experiences with providing care in the child welfare context is especially relevant to kinship navigation programs. Across studies, findings reveal that kinship families have multiple and complex needs (MacDonald et al., 2018), including financial challenges (e.g., Backhouse & Graham, 2012; Gibbs et al., 2006; Lee et al., 2016; McKenzie et al., 2010; Swann & Sylvester, 2006), complicated family dynamics (e.g., Backhouse & Graham, 2012; Davis-Sowers, 2012; Lee et al., 2016; Strozier et al., 2011; Strozier & Krisman, 2007), concerns around caregiver physical and mental well-being (e.g., Gibbs et al., 2006; Gibbons & Jones, 2003; Harnett et al., 2014; Lee et al., 2016), and legal issues (e.g., Backhouse & Graham, 2012; Gibbs et al., 2006; Letiecq et al., 2008). In addition, due to historical and present-day systemic racism, the needs of kinship caregivers of color can be greater than those of White kinship caregivers (Lin, 2014; Rushovich et al., 2021).

Prior studies have identified access to information and supports for legal needs as particularly important to kinship caregivers (Schmidt & Treinen, 2017; Treinen et al., 2015). Many kinship caregivers care for children unexpectedly, and frequently they lack the information needed to fully understand their legal options around custody (Schmidt & Treinen, 2017). They also lack access to legal representation (Wallace & Lee, 2013). Moreover, laws around custody, licensure requirements, and reimbursement are inconsistent across jurisdictions, making access to and clarity of information even more challenging for kinship families. Issues of legal custody are particularly relevant for caregivers as they interact with schools, health care providers, and others to ensure the care and well-being of children. Despite a kinship caregiver providing the daily care for children, many systems and institutions will only allow the legal guardian to make decisions regarding children (Kropf & Kolomer, 2004; Lee et al., 2016). Yet, the path for a kinship caregiver to gain legal custody can be mysterious and complicated. Another nuance has been noted for Black families as they have a long history of taking in their grandchildren, nieces, and nephews without formal legal provisions, and thus may not consider legal custody as a preferred approach (Kropf & Kolomer, 2004).

Overall, this review has found that kinship caregivers’ needs are wide-ranging and significant, suggesting that kinship navigation programs should attend to multiple life domains to provide practical and meaningful assistance. While prior studies have identified legal concerns as particularly salient challenges for these families (e.g., Wallace & Lee, 2013), there is little evidence on how to address them effectively within navigation programs. Indeed, the FFPSA has laid a critical foundation by providing a federal funding stream for kinship navigation programs. More research is required to understand how these programs have been implemented, how legal issues are addressed within them, and in what ways these programs may need to be adapted to be responsive to kinship families, including families of color. This study begins addressing this gap in the literature by describing the implementation of a kinship navigation program that is centered specifically on the legal needs of kinship caregivers.

Method

Study Setting

This study was completed in one Midwestern state after FFPSA implementation in 2019, with evaluation conducted by a local university research team. The study commenced in October 2020 following a usability period during which programs launched and scaled their services. Funded by the state’s Title IV-E Agency, the overarching study seeks to establish evidence of impact for the array of services offered under the umbrella of FFPSA. The current study represents a substudy of this comprehensive statewide evaluation of FFPSA implementation and outcome achievement. This substudy examines one state-supported FFPSA service: preventive legal services offered by a single nonprofit law firm serving participants statewide to support achievement of permanency for youth in informal kinship placements. In contrast to other FFPSA services provided in this state, which seek to build individual skills and competencies over a designated service period, the service evaluated in the current study is a discreet legal service offered to remove barriers to permanency such as criminal record expungement and guardianship. This service also addresses other legal needs that may prevent placement and ultimately permanency for youth. As such, evaluation of this service required a distinct evaluation plan aligned with the scope and intended outcomes of the program.

Design

This study applied modified analytic induction (Bogdan & Biklen, 1997), a methodology examining a priori descriptive hypotheses. Modified analytic induction is an emergent methodological design that examines preconceived assumptions derived from theory and existing literature and negative cases that may disconfirm a priori assumptions and theories. This methodology differs from other inductive methods in that the purpose is not to arrive at a universal causal hypothesis, but rather to test hypotheses derived from literature or practice to describe behavior patterns (Gilgun, 1995). Use of this method anchors the hypotheses in theory or practice while also allowing for discovery and emergent ideas throughout the analysis (Gilgun, 1995).

Applying this design, the FFPSA evaluators began this substudy with a preliminary hypothesis that the provision of preventive legal services to kinship caregivers would stabilize youth placements and reduce the number of children placed in formal foster care. Through thematic analysis of focus group and informant interviews, the research team aimed to discover whether this preliminary hypothesis was tenable; and, if so, in what specific ways these legal services prevented further child welfare system involvement for families.

Procedures

In 2021, the university’s evaluation team conducted a series of 30- to 60-minutes semistructured interviews with preventive legal service providers and caregivers who received these preventive legal services in one Midwestern state. All families that received services were eligible to participate in the study. The purpose of the interviews was to understand how preventive legal services mitigated entry of children to foster care.

Sampling and Recruitment

The eligibility criteria to participate in this study included the following: (a) being a legal professional delivering preventive legal services through FFPSA implementation within the state; (b) being a kinship caregiver of a child who has been identified as a candidate for foster care, as established by the state candidacy for care definition; and (c) being referred by the Title IV-E agency in the state to receive preventive legal services. Evaluators partnered with the lead attorney at the service provider agency to coordinate outreach to 11 regional offices across the state to schedule interviews with legal professionals. Furthermore, the lead attorney compiled a list of caregivers referred to and receiving preventive legal services between October 2020 and June 2021 who provided verbal authorization to the agency for the evaluation team to contact them regarding the study. As of June 2021, 165 kinship caregivers had been engaged in legal services. A total of 33 caregivers agreed to be contacted by evaluators, and 16 individuals scheduled and completed interviews. Participants then provided informed consent as approved by the university’s Institutional Review Board study procedures prior to data collection.

Participants in this study included staff providers (n = 28) from the agency and kinship caregivers (n = 16). Among the participating caregivers, 10 were grandparents, 3 were adult siblings, and 3 were cousins or family friends of the child in their care. Staff participants included direct providers from the agency, including paralegals, attorneys, managing attorneys, and administrative staff in leadership positions.

Data Collection

All data were collected via Zoom interviews led by members of the evaluation team and were recorded for transcription purposes. Resulting audio recordings were professionally transcribed, reviewed by the evaluation team for quality, and scrubbed of identifying information prior to analysis. Participants were not compensated for participation. All study procedures were reviewed and approved by the university’s Institutional Review Board.

Analysis

Analysis began with researchers in the evaluation team familiarizing themselves with the data by reviewing transcripts and coding independently. Consistent with the methods developed by Braun and Clarke (2006), five initial transcripts were coded in Dedoose, resulting in an initial codebook used to develop emerging themes. This codebook was then applied to the remaining 39 transcripts, and additional codes and subcodes were added as new ideas arose from the data. Once interviews were coded, thematic analysis was used to combine codes into overarching themes and subcategories within themes. Later, findings from the caregivers were compared with findings from the providers in a matrix to analyze areas of convergence and divergence in participant responses. Member checking (Lincoln & Guba, 1985) was conducted with service providers to establish trustworthiness of the study findings.

Results

Findings from interviews revealed two major implementation considerations that impacted family experiences and successful completion of the goals of the program: (a) adapting legal service delivery to meet the needs of kinship families and (b) ensuring system-wide service coordination with court personnel, service providers, and the public child welfare agency. Respondents provided insight into how legal services through FFPSA can be delivered to address the unique needs of kinship families and successfully prevent children from entering foster care when services are comprehensive and aligned.

Adapting Legal Services to Meet the Needs of Kinship Families

As described above, research demonstrates that kinship families have multiple and complex needs (MacDonald et al., 2018), including financial challenges and complicated family relationship dynamics in addition to a variety of legal needs. To meet the needs of kinship families, legal services may be provided which (a) do not add financial burden to the family (provided at no cost to families), (b) include comprehensive services that address a variety of needs, (c) support navigating the array of legal authority options available to kinship caregivers, and (d) involve both the kinship caregiver and the parents in children’s lives. According to respondents, this program addressed all of these needs to varying degrees, and services were adapted over time to improve legal services specifically for FFPSA referrals for kinship families.

Comprehensive Services at No Cost Help Address Kinship Families’ Complex Needs

First and most emphatically, respondents described how the program met kinship families’ needs by providing preventive legal services at no cost. Free legal services allowed many kinship families to attain legal permanency that would not have been able to afford legal service fees. According to one caregiver, “I couldn’t have done what I’ve done for [child] without [this program]. I really couldn’t have, because financially I couldn’t afford to just go hire an attorney.” In addition to lawyer fees, the program covered all ancillary court and service fees, which would have been prohibitive or burdensome for many. This broad coverage of all costs to caregivers distinguishes this program from other legal services programs funded by the state; according to one attorney, “[This program] will pay the litigation fees for the attorney, for the ward fees. And that is an extremely important thing for our clientele. So, it helps out immensely.” Legal staff described how this program filled a gap in the service array, since all FFPSA families were eligible to receive free legal services with no additional income or age requirements which are stipulated for grants targeting low-income or older adults. Therefore, the program was able to reach the population of kinship caregivers that would otherwise not be served: those who are able to care for kin children, but for whom the cost of legal services would still be a significant financial burden. For example, one lawyer described a case where “We would not have been able to help this person, had it not been for [this] program . . . because she would not have qualified for any of our other grant and funding sources.” By providing legal services at no cost, respondents suggested that the program prevented children from entering foster care who would otherwise be at risk of removal due to limited financial resources. According to one staff member, “I think that [this program] serves that part of the population that would fall into state custody just because of lack of funding.”

Addressing Multiple Legal Issues Can Help Alleviate Additional Burdens on Families

Aligned with prior research, caregivers and legal staff described the complex needs of kinship families, including outstanding legal issues that increased financial pressure on the family (e.g., Backhouse & Graham, 2012), such as issues regarding wills, adoption services, applying for disability, and domestic cases. Some respondents reported that they received additional legal services beyond legal authority for children, such as criminal record expungements, to allow the caregiver to be eligible for the kinship placement and guardianship. According to one lawyer, “I know that we’ve done some expungements for people because when they’re looking at them, they’ve got something on their record. So we’ve had to hurry up and do expungements and then we can do the guardianship.” However, even though this program allows a variety of families’ legal needs to be met at no cost, needs beyond legal authority for children were not always raised with attorneys while caregivers were enrolled in the program. Therefore, some families missed opportunities to receive free legal services for eligible needs, creating an unnecessary burden. For example, one participant reported unresolved legal concerns following the death of the child’s parent: “I didn’t file probate papers. And the house, they won’t let me put it in [child]’s name, because we didn’t go through probate . . . I guess the house is in the state’s name . . .” Legal staff and caregivers reported limited communication about additional needs, and caregivers reported little knowledge of the variety of legal issues that the program could resolve at no cost.

Informing Caregivers About Their Legal Authority Options Can Help Families Make Decisions for Individual Needs

Caregivers reported receiving little information about what legal authority options were available for the kinship caregiver to meet the needs of the child. Multiple forms of legal permanency may be appropriate for kinship families, each affording different benefits and responsibilities for caregivers, and these options vary by state. However, caregivers often reported that they were not aware that there were other options that could be pursued. Agency and program staff frequently referred to the program service as “guardianship,” even though multiple legal options could be pursued. According to one caregiver, “I just know that they said guardianship and that’s what they worked on and that’s what I got. So, I don’t know what else there would be to do.” Another caregiver described a concern that she felt pressure to assume guardianship without sufficient consideration of other options. This caregiver described her perception that the referral to legal services moved too quickly without sufficient explanation of the goal, and suggested that:

I think if initially we had a team meeting to go through all of the options to explain all the next steps so we could fully understand and make an informed decision then. Because now I feel like we’re still making a decision. And like I’ve said, I would never want a child to be in foster care. But sometimes I feel like he would be better served in foster care. Not because we’re not . . . I would be his foster parent. He would stay here. But he would still have the supervised visits. The parents would have an opportunity to be held accountable. There’d be therapy services offered. There would be an opportunity for him to safely reintegrate.

This caregiver described the perception that more services would be provided to children and parents if the child entered foster care than if the caregiver assumed guardianship. Other respondents endorsed this perception, recommending that equivalent services be provided when legal services are engaged. According to one provider, “I would have all the different services that are offered to parents in these child-in-need-of-care cases, I think should be offered to parents when like a [kinship] case is involved . . .”

Kinship caregivers described a variety of circumstances that led to their FFPSA referral to legal services; some kinship families had lived in the informal kinship arrangement for some years, whereas others came to their kinship arrangement suddenly, sometimes following contact with child protective services. There were also a variety of reasons that children came to kinship homes. Parents may be deceased or incarcerated or be coping with substance use or other trauma. Parents may have discontinued contact with the caregiver, or they may be frequent, infrequent, or unpredictable visitors in the kinship home. Based on the individual family circumstances, relationships between caregivers and parents, and the result of the investigation by the child welfare system required to approve the FFPSA referral, no one legal resolution could meet the needs of every family. Depending on the initial needs assessment, each family may have distinct pathways to stable placements for children, and families need guidance to find the best legal options for the child and for their family which can address their specific needs.

Services Involving Whole Families Can Support Program Completion

Respondents, both caregivers and providers, strongly emphasized that communication with parents was the biggest challenge to successfully completing the goals of the program. Most forms of legal authority for children require the notification and consent of the parent. If parents’ whereabouts are unknown, by law efforts must be made to contact them, if by no other means than by publication in local newspapers. However, providers described receiving little to no information through the FFPSA referral about the parents or other family members that must be notified about the legal authority being pursued by the kinship caregiver. Legal staff and kinship caregivers cited the need for additional support for communication with parents as a major recommendation to improve the program, including help in locating the parents. Without this support, kinship caregivers were held responsible for obtaining information about parents and other relevant family members who needed to be notified, with whom the kinship caregiver may or may not have current contact information or existing relationships. The burden of explaining legal authority to the interested parties was also left to the kinship caregiver. The lawyers representing the kinship caregiver typically considered communication with the parent to create a conflict of interest, and so often avoided it, leaving the onus of explaining the legal action being pursued and obtaining consent from the parents on the kinship caregiver. One provider described,

. . . as the opposing counsel, it’s kind of tricky when you reach out because you can’t really advise them on how this all works . . . I don’t think I ever reached out to the father. I’m not sure if we even had a phone number.

Kinship caregivers also expressed concern about how to communicate with parents about legal authority without disrupting the kinship home, sometimes leading to caregivers exiting the program without legal authority. For caregivers maintaining some contact with parents, respondents described apprehension about approaching parents about legal authority and fears of “rocking the boat” in a way that would lead to parents taking their children out of the kinship home. According to one service provider,

I’ve had a couple of families where I did get to talk to them, and they’re like, “Look, I don’t want to shake things up. I want this, I need this. But I’m afraid once we initiate this action, my daughter, my son is going to get mad and come and take the kids.” I hear that, and so, sometimes . . . they’re second guessing do I really want to commit myself to this?

As a result, respondents described how parents were largely left out of the legal services process. Legal staff mentioned that parents were not involved in the plan to pursue legal authority for kinship caregivers and so were at times not contacted before the legal action proceeded. According to one lawyer, “Yes, we would love the parent to consent, because it makes things go smoother, those types of things. But if the parents will not consent, then the process would be is that we would go ahead and file the paperwork.” Parents were not provided with a lawyer, advocate, or case manager to advise them through the FFPSA program. Therefore, when parents were engaged, services risked being delayed or disrupted depending upon the kinship caregiver’s relationship with the parents and the parents’ reaction to the news that a relative or family friend was pursuing legal authority over their children.

Prompted by conflict-of-interest concerns, program directors and legal staff reexamined the process for accepting referrals for legal services to better meet the needs of kinship families through FFPSA. As a standard practice for other programs, and early in implementation of the FFPSA program, cases were dismissed in which parents presented any resistance to providing consent to guardianship (these cases were referred to as “contested”). As one provider recounted,

Of course, they fall apart if a parent is going to actively contest it. [We] hit probably one or two here in my office where we did have someone come in and contest it, and we end up having to dismiss it.

Over time, staff recognized that parents who are in children’s lives play a pivotal role in the successful completion of services, and without their participation, children may be separated from their families and placed in foster care. Legal staff began to consider how to accommodate cases where families may not be on the same page about legal authority for the kinship caregiver at the outset.

Ultimately the legal services agency adapted policy to serve kinship families through FFPSA by not immediately dismissing “contested” cases. In some circumstances, staff were able to resolve conflict by considering strategies to “negotiate” an agreement between parents and kinship caregivers. According to providers and caregivers that experienced this adaptation, this process supported relational and cultural permanency in ways that case dismissal and foster care placement would not. One provider described,

I think we’re able to successfully negotiate, not in a formal mediation, but essentially it was like mediation where they mediated an agreement as to contact with mom so that she could have a healthy relationship with the kids and with the grandparents, that she would be able to be kept up-to-date. The contact was going to be safe. And so, I think it preserved just all of those family relationships, which can be so important for the family, long-term. And for me, I see that as success, because that means that mom’s not going to disrupt this placement, kid’s needs are being met, and it’s also maintaining those relationships that the children need in a healthy way with mom.

This approach to serving whole kinship families challenged many legal staff in their understanding of best practice to manage conflict of interest. As a result, not all legal staff fully incorporated this policy change. Although some embraced the idea of mediating a solution among parents and caregivers, others described the perception that parents would not be willing to engage in mediation. Another lawyer described how the requirements of the FFPSA referral itself may inhibit an eventual agreement that legal service providers could broach between the parents and kinship caregivers, saying,

The problem with contested cases isn’t whether or not we can take them, but while the case is contested, what’s happening with the kid? So if parties are willing to have the kid go to grandma while we work it out, then that’s not a problem. But if they aren’t and the kid goes to foster care because nobody can agree to anything, then that’s when we hit the problem . . . We have to return the referral because of the parameters of the program that say day one of foster care, there can’t be a [FFPSA] program case anymore.

Although involving parents in kinship legal services is a critical first step, respondents emphasized that parents still need a representative or support person to explain processes and advocate for their needs when kinship caregivers are pursuing legal authority for their children:

I don’t know if this is feasible, but if there’s some way to let the bio parents know . . . we’re not trying to take your parental rights away . . . So maybe something to massage everybody’s fears . . . just some sort of way to let the bio parents know what this all means, what a guardianship is and why they’re doing it.

These recommendations for parent support were often motivated by the rationale that children will continue to seek contact with their parents, and that this program is intended to keep children safely with family, without severing relationships with parents. Both caregivers and providers recognized that relational permanency is the ultimate goal, and that support for parents is a key component for maintaining relationships. According to one caregiver,

If the end goal is to put the kids back with the parents, there needs to be some kind of a program or something that knows that that’s being done properly. So the kids are going back into a safe environment.

Another provider suggested,

We think that we’re fixing the problem by removing these children, but the reality is they want to be with their parents. They’re going to have contact with their parents at some point. And if we could do more for providing resources for those parents, I think it would be a better system.

According to respondents, providing comprehensive support for parents is critical for successfully preventing entry into foster care and ultimately ensuring the well-being of the whole family.

System-Wide Coordination With Service Providers, Courts, and the Title IV-E Agency

As with state Medicaid programs, funding for FFPSA is provided through a partnership between the federal and state government. The FFPSA legislation opened the door to federal dollars for prevention services under Title IV-E of the Social Security Act—funding previously only accessible to states for foster care services. However, this requires the Title IV-E agency—typically the state’s public child welfare agency—to determine each child or youth that is eligible for FFPSA services. For the state implementing the preventive legal services in focus, families are generally required to flow through the traditional child protective services response system to access FFPSA services. This begins with a call to the state’s hotline for reporting concerns of child maltreatment. Then, a child protective services worker connects with the family to conduct an assessment, before making a referral to a community-based FFPSA service provider. The following section describes how caregivers and providers experienced this structure for referring kinship families to legal services and the perceived impact on the outcomes of the cases. Legal staff and families described key system processes that met or did not meet kinship families’ needs, including the involvement of the Title IV-E agency, coordination with court personnel, and the provision of resource referrals and support from other service providers for children and families.

Clarifying the Role of the Title IV-E Agency Supports Continuity of Services

Both families and legal services staff described confusion about the role and responsibility of the Title IV-E agency in the provision of the FFPSA prevention service. This led to delays and disruption to the continuity of services provided to families. Kinship caregivers expressed a disconnect with the Title IV-E agency once the caseworker made a referral for preventive legal services. As a result, caregivers expressed that they were left unsure as to which agency was responsible for handling different aspects of their case. Some caregivers reported the agency caseworker simply told them someone from the legal services organization would be in contact with them, and families received little information about the legal services program or other available services that may meet their additional needs. Families were left unable to contact the caseworker for information or assistance because the agency’s child protective services case was closed following the referral. Some caseworkers said they were unable to help while others simply did not return calls to the kinship families. One kinship caregiver participant noted that the lack of information about other services delayed progress on their legal services case:

We were contacted by another [Title IV-E agency] employee with FFPSA. She was really nice. She said like, “I’m just here to help you if you need to talk to someone. But really [legal services provider] is your contact.” And so that was confusing to know because I had questions about medical. These questions have not been answered; medical, therapy, truancy, all of those things. Those questions are yet to be answered by anyone. So I contacted the attorney and told him, “We’re at a standstill right now.”

Once the case had been referred to legal services, kinship families did not receive ongoing support and assistance connecting with other resources and services the family needed, such as Medicaid, financial assistance, and mental health services. Some caregivers attempted to pursue additional information and resources independently, while others were unable to navigate complex service delivery systems on their own. Some caregivers also described losing access to services they had been receiving through other programs once legal authority had been obtained. For example, one family described termination of family preservation services after the guardianship had been finalized:

And that’s the part of the system where it’s failing. When the [legal service provider] come[s] in and the guardianship is there and then all the resources that were there for us [caregivers] and for them [children] have to go away just because you’ve got somebody to take care of it. It doesn’t stop there. This is when it really starts. And this is when everybody steps away from you.

Legal staff were similarly unsure about the Title IV-E agency’s role and responsibilities. First, according to legal staff interviewed during this study, some agency caseworkers seemed to command—rather than recommend—what legal outcome or resolution was required. This was frustrating to legal staff when the caseworker’s mandate appeared to be at odds with other legal options that may better meet the family’s circumstances, legal needs, or desires. For example, the agency caseworker may mandate guardianship for the kinship caregivers when legal staff believed adoption to be a more appropriate fit:

When we get the referral, it seems like they’re telling us what to do and telling the client what to do, and that’s not necessarily always what’s best to them. I would rather have a recommendation of what DCF is looking for to keep the parents or the grandparents or caregiver out of child-in-need-of-care cases rather than telling us they have to have a guardianship when something like a power of attorney or something like an adoption would work so much better for their situation.

Second, legal staff believed the agency caseworkers should or would be responsible for contacting the child’s biological parents. As described above, staff at the legal services organization frequently mentioned viewing the kinship caregivers as their “clients,” and maintained that providing any legal guidance to the child’s parents would constitute a professional conflict of interest for them. According to one staff member,

Whoever that DCF worker is that’s involved in this family, who made that referral, who knows these people. They’re in the best position to get them to sign up, contact the bio parents, and they would know best how to get in touch with them and how to approach them to get that done.

Finally, legal staff were uncertain which agency was responsible for connecting families to other resources and services. Legal staff identified additional supports and resources kinship families needed, but they did not believe they were well-equipped to help families navigate these service systems. After all, the public child welfare agency administers other public services and programs. And only the agency caseworker may make a referral if the family needed to access other FFPSA prevention services. However, legal staff were uncertain whether the Title IV-E agency provided ongoing support to these kinship families. One staff member asked,

Is there anyone then following up, besides us, to say, “Okay, now, do you need another mental health referral? Do you need access to this other program? What else do you guys need to make sure that you’re meeting the needs of this child?”

Coordination With Courts and Legal Partners Can Reduce Unnecessary Court Intervention

Legal and judicial partners play an essential oversight role when children are placed in foster care. These partners help safeguard rights and due process, ensure appropriate services are provided, and monitor progression of the case. However, the legal services involved in this study were expressly designed and implemented to prevent children from entering foster care. During interviews with legal staff providing the preventive legal services, staff described confusion and, at times, competing legal efforts from some legal and judicial partners involved in foster care cases.

In the state implementing the preventive legal services, district or county attorneys are responsible for filing the petitions alleging child welfare cases require court intervention and oversight. Legal staff recounted examples when district/county attorneys filed for court intervention when preventive legal services were being provided to resolve legal barriers:

. . . Because there had been some of those communication barrier delays early on, that the state went ahead and just felt like they couldn’t wait any longer and filed the child-in-need-of-care case. And then rather than allowing kind of this, “Get the guardianship done and we’ll just dismiss the child in need of care case,” they ended up just keeping—going that route . . .

Frequently, district/county attorneys will set a time limit to achieve an alternative legal resolution or they will file for court intervention, putting pressure on legal service providers and kinship caregivers to contact the relevant parties and make arrangements to proceed with legal action quickly. According to one provider, “I think I’ve maybe gotten three or four where the DA had gotten involved, and they were like, ‘You know, if this is not done within 45 days, we’re going to file a CINC [child in need of care case].’” One staff attorney reported the district attorney wondered whether the preventive legal service crosses into the district attorney’s statutory responsibility for determining whether to petition for court intervention. The district attorney was puzzled why the caseworker referred the case to the prevention program rather than providing information to the district attorney’s office. Legal staff recommended more education for court personnel on the opportunities provided by the program. Legal staff also reflected on how the program challenged the existing processes and ways of thinking about foster care and legal authority cases:

I think [the program is] kind of transitioning people’s way of thinking and kind of moving the pendulum a little bit in a particular direction. I think once child welfare gets involved, I think they get—we get our latches into a family and the case, and I think we don’t like to think outside the box.

The necessity for foster care should be determined based on the unique facts and circumstances of each case. Certainly, there are situations that require court intervention (i.e., foster care placement). However, legal staff reported they have witnessed situations resulting in court involvement solely because no preventive legal services were available at the time. Preventive legal services are new to many districts and courts in the state. According to legal services staff, rather than working in opposite directions, the program is more likely to work as intended and prevent unnecessary entry into foster care when legal efforts among legal and judicial partners are coordinated. According to one provider,

I would like to see as far as policies and procedures, the court have more ability to make referrals and identify [this program] or other family prevention services as resources. . . . Our judges should be aware of all of these services.

Referrals to Additional Resources and Services Stabilize Families

While the program was successful removing legal barriers for families, kinship caregivers also identified other needs for providing care, ensuring stability, and promoting well-being. Kinship caregivers reported needing concrete supports and assistance. Most of the kinship caregivers interviewed were relatives of the child(ren), and many reported living on limited and/or fixed incomes. Often, kinship caregivers will begin caring for children in their home without much time to plan or prepare. Caregivers frequently noted financial assistance, food assistance, medical coverage, and childcare as needs. Some families even had to move to a larger home. Kinship caregivers also identified service needs that would benefit their families such as mental health services, parenting services, and support groups. According to one caregiver, “When divorce happens, they have parenting classes. Well, what would be so wrong with support classes for all of us, for an open forum, to be able to talk about things that we’re struggling with?” Staff providing preventive legal services also acknowledged the need for additional support to receive stabilizing services: “We’re hoping that ultimately all of the programs funded by [FFPSA] will work together to do cross-referrals because we hear about families who come to us saying we really need [medical] services or mental health services.”

However, kinship caregivers did not know what assistance they would be eligible to receive. In general, they were not familiar with many programs or resources. Most kinship caregivers interviewed were also grandparents, many older adults with limited capacity to navigate information that is only available online. Many kinship caregivers expressed that they did not even know where to start or where to turn for help locating and accessing services and supports. When asked about additional resources the family might be eligible to receive, one caregiver responded, “Who do we call? Who do we ask? And like I said, we’re making ends meet. So, we just do what we got to do to take care of my granddaughter. So, we haven’t really pursued it . . .” Through the legal services program kinship families received assistance navigating the legal system, but no assistance was provided to navigate other, sometimes more complex service systems.

The contrast was particularly striking for one kinship caregiver who was connected with a small, local kinship navigator program in her city. While other families were still searching for answers long after their cases closed, a dedicated navigator helped this caregiver obtain childcare assistance, apply to receive the child’s birth certificate, receive food and medical assistance, and navigate Social Security benefits. The navigator also provided ongoing support. They frequently checked in with the caregiver, asking if there was anything else the family needed. Caregivers and legal service providers concur on the importance of kinship navigation as expressed in this quote:

A lot of people would not be able to navigate through getting their social security, their birth certificate, getting their medical and finding out where it was and how to do all that stuff and food stamps. I would say get a hold of a Kinship navigator somehow, some way, as soon as possible.

Ensuring caregivers have what they need to care for the children in their home promotes safety, permanency, and well-being. Kinship caregivers, specifically, need assistance and support. Connecting kinship families with resource navigators may help prevent children from entering foster care long after the initial legal issues have been resolved.

Discussion

This study provides new evidence supporting preventive legal services as a mechanism for preventing entry into foster care for children in informal kinship care. According to legal staff and kinship caregivers, preventive legal services are most likely to be successful when legal services can be adapted to address the unique needs of kinship families and services are coordinated among service providers, courts, and the Title IV-E agency.

Adapting legal services for kinship families to prevent foster care entry requires a shift in standard practice for legal services such as guardianship and child welfare cases. This preventive legal services program met kinship families’ complex legal and financial needs by providing legal services for a variety of needs at no cost to families. However, although the program covered a variety of eligible services, not all respondents were informed of the opportunities to receive help on matters other than legal authority for children, and not all families understood the available options for the family or the child. When families present with multiple needs, service providers should consider how preventive legal services are described to kinship caregivers, and how a comprehensive legal needs assessment at referral may help uncover additional legal needs that could be met by the program. To further meet the needs of kinship families, respondents recommended that legal services be adapted to support whole families, which may require a shift in mindset and practice related to conflicts of interest. Family dynamics can also impact progress toward legal permanency for children living with relatives, particularly when parents do not have their own lawyer or advocate to help them understand guardianship and its alternatives. While providing representation for parents is preferred, legal staff may need to find alternative solutions to working with parents without representation when children are at risk of entering foster care from kinship homes. Solutions may include collaborating with other providers to ensure the presence of a parent advocate and incorporating mediation into the standard process of pursuing legal authority with kinship caregivers and parents through FFPSA.

In many ways, adaptations to legal service delivery for kinship families depend upon system-wide coordination and the referral pathways designated by each state to deliver FFPSA services. If all referrals must flow through the Title IV-E agency, there is an opportunity for the agency to ensure that all needed services for the family are assessed and coordinated. For example, the ability for legal service providers to serve whole families and develop legal solutions with parents requires supportive contact with parents, which may be coordinated through the Title IV-E agency if the state requires an assessment to approve FFPSA services. The agency can also ensure representation is provided for parents when relatives or kin are seeking legal authority over their children through FFPSA, and that referrals to legal services are accompanied by referrals to kinship navigation services through FFPSA that can help meet the other needs of kinship caregivers, parents, and children.

However, referrals that must flow through the Title IV-E agency challenge legal services providers and participants to accept a potential risk in pursuing legal action that requires assessment by the child welfare system which could result in children being separated from kin and placed in foster care. Respondents described the concern that some participants were unwilling to receive FFPSA services due to this risk, and therefore could not benefit from the program. Likewise, when legal service providers encountered families that would be eligible for free legal services through FFPSA, they expressed reluctance to recommend that participants utilize the FFPSA services due to this potential risk. Therefore, the number of families that can benefit from the program may be limited by the referral pathway implemented by the state to receive FFPSA services.

To achieve system-wide coordination, states implementing preventive legal services should explicitly define the role of the Title IV-E agency in referral and follow-up and develop strategies to engage key personnel in the court system when legal services are implemented and when families are referred for legal services as part of FFPSA. Alongside service coordination with courts and the state agency, kinship caregivers and legal staff strongly recommended that families are provided with service coordination for other needs which are common among kinship caregivers and parents (financial needs, housing, medical and childcare assistance, etc.). Although the proximal goal of this program is to prevent unnecessary entry into foster care by ensuring that kinship caregivers have legal authority, many respondents recognized the distal goal of the program to maintain family relationships and potentially reunify children with their parents when possible. With this in mind, respondents emphasized the importance of services not just for children and their kinship caregivers, but also for parents. Importantly, states implementing FFPSA legal services should ensure that families can receive the resources and service coordination that they need without the child entering foster care. Respondents described the concern that entry into foster care could open access to support for parents, caregivers, and children that would not be available to families otherwise, and this concern reflects the dearth of system supports for kinship families, particularly those with sufficient resources to care for kin children but who would be burdened by additional financial obligations (such as fees for legal services). Although achieving legal authority for kinship caregivers is a key component to stabilizing placements for children, if sufficient resources are not available for informal kinship families during the process and after they have achieved legal authority, the program will not serve families or prevent foster care entry as intended.

When preventive legal services are provided for informal kinship families, caregivers can be relieved of burdens that could potentially disrupt a stable home for kin children. However, children who are determined to be candidates for foster care through the Title IV-E agency are at risk for removal if the child welfare agency caseworker, district attorney, or judge makes a different determination about the case before formal legal relationships with kinship caregivers can be made. Therefore, it is critical that all relevant service providers, caseworkers, and court officials are aligned on the goals of preventive legal service cases and that foreseeable barriers, such as communication with parents and resource navigation, be addressed at the outset to prevent unnecessary entry into foster care. If sufficient resources are available to families in need of support, the system will better serve children and prevent the need for foster care.

Study Strengths and Limitations

One of the many strengths of this study is that it is among the first of its kind to examine implementation of preventive legal services provided through FFPSA. Through this study, we begin addressing the gaps in the evidence base related to this new prevention initiative. As a new federal initiative being implemented uniquely in each state, it is essential that we begin to understand which community-based prevention programs are most efficacious in preventing unnecessary foster care placement while also improving the well-being of families. The study not only examined the process of implementation of the service but also helped identify systemic issues such as gaps in the referral process, communication between agencies involved in the implementation of the service, and lack of follow-up after legal authority was established. Data collection inclusive of multiple perspectives also enhanced the richness and precision of the analysis through triangulation. Researchers also ensured trustworthiness of the data and analysis using member checking.

Despite these strengths, the study also has certain limitations that must be acknowledged and considered. Although member checking was conducted with agency staff who participated in the staff interviews, this process ensuring integrity of the findings did not include kinship caregivers who were interviewed. Although this decision was made for reasons of feasibility and family burden, it missed the opportunity to ensure caregiver voices were accurately captured and synthesized. Relatedly, a primary limitation of this study was the inability to include parents of children whose relatives or kin were seeking legal authority in the data collection and cointerpretation of these study findings. As key parties to the issue, interviewing parents may help decision makers, researchers, and service providers understand key needs for ensuring coordinated and successful service, barriers to parent involvement, and the role of mediation in contested cases. Similarly, issues concerning diverse populations, including the unique needs of immigrant families, did not come up in the semistructured interviews with caregivers. Future studies should examine the differential experiences of subpopulations to better understand how the program is received by these families. More involvement from both parents and caregiver participants of diverse populations would strengthen these findings. Finally, sampling for this study was impacted by selection bias, with the population of kinship caregivers available for interviews being restricted to those willing to accept the service, thus potentially creaming the sample to those experiencing less risk. Future research should seek to include these voices.

Conclusions and Implications

The FFPSA was signed into law in 2018 and began scaling to individual states in 2019. Although FFPSA requires the use of evidence-based programs in implementation for states to receive federal reimbursement for services, evidence for novel and grassroots-developed programs meeting unique local needs must also be understood to continue to build the array of FFPSA-eligible services. It is also essential that existing evidence be reconsidered within the local context. With fewer than 4 years of implementation nationally, implementation and impact of FFPSA programs are not well-understood. Initial implementation has comprised a period of learning, coordination, standing up and supporting new systems and processes, and pivoting when new learning supported new directions. By exploring a new service provided through FFPSA, this qualitative study facilitated understanding of the implementation of this service in the state and helped to develop recommendations to enhance the provision of this service. Findings from this study were shared with the Title IV-E agency, as well as the legal service provider for use in refining the program through continuous quality improvement. However, these study findings reach beyond the local context and provide crucial learnings for kinship service delivery more broadly. As states take up kinship navigation and support under the auspices of FFPSA, considerations must include accommodations for providing holistic family care involving all members of the family and comprehensively meeting the needs of the kinship caregiver, the child, and the parents. Legal services are most effective when paired with navigation services, and vice versa. And service providers within and across systems must take on the burden of navigation and coordination to ensure family needs don’t fall through the cracks and result in child removal to foster care. To strengthen implementation in the current context given these findings, coordinated outreach, communication, leadership, and education from the state Title IV-E agency is needed to engage court and legal system partners. The goal of this work would include more deeply understanding the legal conventions and statutory requirements that may limit the application of this service or the ability to successfully navigate a preventive legal service case through the courts. As previously noted, conflict of interest conventions currently prevent attorneys from engaging the parent in a kinship case. If system partners can resolve this legal convention and ensure families can be served holistically and as a family system, then these services may mitigate some of the relational, and ultimately legal, conflicts that the family experiences. Other implications for practice include closely examining the referral pathway for accessing these services. Although initial evidence supports preventive legal services as a mechanism for preventing the need for foster care, the acceptability of the program because of the pathway for accessing the program reduces its potential impact.

Although this study begins establishing evidence for the use of preventive legal services in the context of FFPSA service provision, there is much opportunity to expand upon this work and deepen the evidence base. As mentioned above, this study is part of a comprehensive evaluation of the FFPSA service array. With administrative data from the population of families referred to FFPSA programs statewide, the evaluation will test the effectiveness of these programs in preventing unnecessary entry into foster care compared to “business as usual” family preservation services. These anticipated findings will be among the first available evidence for the FFPSA in addressing the needs of families prior to involvement with the foster care system. In addition to this developing work, as previously noted, it is imperative that future research includes diverse parent voices, including Black and Brown families and families with immigrant status to understand differential needs, impact, and experiences among various populations. Furthermore, preventive legal services are often paired with other FFPSA and community-based services. Research is needed to understand how these programs work together to either enhance or diminish impact, particularly among those families experiencing the most instability and most in need of the service.

The recommendations from legal staff and caregivers in this study align well with the position paper published in the 2017 Child Welfare special issue on kinship families (Testa, 2017). Although the FFPSA advances many of those recommendations, for legal assistance, FFPSA’s support for kinship navigation alone may not go far enough. Although legal assistance is a required component of kinship navigator programs, this study demonstrates that the needs of families stretch beyond individual navigation and referrals. The legal services program described in this study addresses the specific 2017 recommendations for legal assistance, considered to be “not addressed” by the FFPSA, with “increased access to attorney representation” at no cost and referrals for legal assistance specific to kinship families (Testa et al., 2020, p. 218). But the authors of those recommendations, and the respondents in this study, also that families’ needs will not be adequately met without increased system collaboration, particularly among Title IV-E agencies, kinship navigators, court administrations, and legal service providers to improve legal assistance (Testa et al., 2020).

Findings of this novel study suggest that the provision of free legal services can prevent children in kinship families from unnecessarily entering foster care by enhancing access to the services needed to ensure legal, relational, and cultural permanency for youth. Although these findings are promising, additional work is needed to establish robust evidence for these types of tertiary, yet essential, support services. Future implementation should consider greater investment in preventive legal services in the prevention service array, and how the referral mechanisms and systems of support surrounding kinship families can coordinate to ensure that more children can remain with their families.