BILL NUMBER: S7546

SPONSOR: MONTGOMERY
 
TITLE OF BILL:

An act to amend the social services law, in relation to a child's eligi-
bility for kinship guardianship assistance payments after adoption by a
guardian

 
PURPOSE:

The purpose of this bill is to amend the social services law in order to
take the guess work away from counties and allow caregivers to pursue
the ultimate level of permanency through adoption and avoid losing the
adoption subsidy.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends the social services law to allow a child to
remain eligible for the kkinship guardianship assistance payments subse-
quent to adoption of the child by the relative guardian, or successor
              

guardian.

 
JUSTIFICATION:

KinGAP has advantages over adoption as permanency option that benefit
both the caregiver and the Local Department of Social Services (LDSS).
When a child enters foster care, they enter with the permanency goal of
"return to parent" in most instances. It is the job of the LDSS and the
courts to ensure that reunification efforts are being made throughout
the life of the foster care case. In instances where the LDSS and courts
have determined that it is no longer in the child's best interests to
return to the parents, they are faced with finding a new permanency
solution for the child. In adoption proceedings, parents must either
voluntarily relinquish their parental rights, or, if unwilling to do so,
must have their rights terminated by the court before a child can be
freed for adoption by a foster family or pre-adoptive family.  KinGAP is
achieved by an order of guardianship from family court, with an agree-
ment from the LDSS to continue a subsidy for the child, similar to the
adoption subsidy. In this instance, no termination of parental rights
proceeding must take place, therefore eliminating time and effort on the
part of the county, while also maintaining familial integrity for the
family unit who is exiting foster care.

While kinship caregivers who are foster parents are given the choice
between exiting to KinGAP or exiting to adoption, the quickest path to
permanency is often KinGAP, and while it is considered a "permanent"
option, the biological parents still have rights intact and may choose
to pursue regaining physical custody of the child at a later date. The
biological parents also may continue to have visitation rights, which in
some cases is seen as a positive, while in others it may be seen as a
negative.

In the Office of Children and Families booklet entitled "Know Your
Permanency Options: The Kinship Guardianship Assistance Program
(KinGAP)", indicates to families who are considering KinGAP as a perman-
ency option that: "I am not prevented from adopting this child at any
time in the future". It does not subsequently indicate that if an
adoption were to happen after a KinGAP agreement has taken place, the
caregiver would then lose the KinGAP subsidy agreed upon with the coun-
ty.

In a recent case in Schenectady County, a kinship guardian who was
receiving a KinGAP subsidy for the child in their care pursued adopting
the child in family court. The county subsequently stopped her KinGAP
subsidy after the adoption went through. Reasons may vary from case to
case as to why a guardian of a child may want to pursue adoption at a
later time, but adoption does offer finality when considering permanen-
cy, and would allow a caregiver to take over in the role of adoptive
parent. The Administrative Law Judge who presided over the case deter-
mined that the Social Services Law Sec.  458-b(7)(b) indicated that the
subsidy may be terminated "if the relative guardian is no longer legally
responsible for the child", indicating that possible causes may include
the status of the guardian being terminated or the child is no longer
receiving support from the guardian. The decision indicated that the
guardians who became the adoptive parents did not at any point stop
being responsible for the child, nor did the child stop receiving
support from the guardians turned adoptive parents, and therefore
awarded the KinGAP subsidy continued to the caregivers.

Codifying the ruling in an amendment to SSL 458-b would take the guess-
work away from counties as to what to do with these cases, and allow
flexibility for caregivers who may want to adopt in the future, but are
being ushered into KinGAP at the end of their foster care cases. Care-
givers should not be penalized for pursuing the ultimate level of
permanency through adoption if that is what is in the best interest of
the child in their care, nor should counties now discourage families
from exiting foster to KinGAP so as to avoid losing a subsidy in the
future. As more kin enter into caregiving arrangements for children, it
is important to support these families and not limit or hinder their
stability or permanency outcomes.

 
LEGISLATIVE HISTORY:

This is new legislation.

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect immediately.