More than 14,000 children in California receive benefits through the Kin-GAP program, which provides cash assistance and Medi-Cal to foster children living with relatives as their legal guardians. The program was created in 1999 by the California Legislature to encourage family members to care for youth who had been removed from their parents by the dependency courts. The Legislature’s intent was to keep families intact and to allow foster children to leave the dependency system to stable, permanent homes. In 2006, the program was expanded to include children who had been removed from their homes and for whom a guardianship was created through the delinquency court.
The stability of these families was threatened by a state policy that misinterpreted this expansion of the program. The policy unlawfully terminated Kin-GAP for foster youth who later became involved with the delinquency system, often for minor offenses, and then returned home on probation to their guardian.
On March 23, 2010, NCYL, the Alliance for Children’s Rights, and Morrison & Forrester LLP filed a lawsuit challenging the state’s interpretation of the Kin-GAP statute in denying benefits to these children.
The plaintiff, EB, is now a teenager, but was placed with his grandmother, Shirley Brazwell, when he was in foster care as a young boy. Eventually, his foster care case was dismissed and Ms. Brazwell became his legal guardian. She was determined to meet all eligibility requirements for Kin-GAP and began receiving benefits for his care. He was later arrested on a misdemeanor charge, placed in juvenile hall for over two months, and then returned home. He was still on probation when he returned home and thus had an “open wardship” with the juvenile delinquency court. CDSS terminated his Kin-GAP benefits when they learned he was in juvenile hall, and refused to reinstate them even when he returned home. They required Ms. Brazwell to show that the delinquency court’s “wardship” was dismissed before they could reinstate Kin-GAP benefits. Because EB was on probation, he still had an open wardship, and thus could not provide the requested paperwork.
NCYL argued that CDSS wrongly interpreted the Kin-GAP statute in terminating benefits to Ms. Brazwell. The Kin-GAP statute provides for benefits for children who exit foster care to legal guardianships – whether their foster care case was supervised by the dependency court or the delinquency court. The statute only provides for termination of benefits if the youth turns 18 (or 19 in specified cases), or the legal guardianship is terminated. Once a youth exits foster care and becomes eligible for Kin-GAP, that youth remains eligible for Kin-GAP even if he is subsequently declared a ward of the delinquency court. The wardship in no way impacts the guardianship and thus, as long as the youth remains in the guardian’s care and is not taken back into foster care, Kin-GAP eligibility continues.
