by Fiza Quraishi

More than 13,000 children in California receive Kin-GAP benefits,¹ a program that provides cash benefits and Medi-Cal to former foster children who are in a guardianship with a relative.  Kin-GAP allows children whose parents cannot care for them to live in a stable, loving home.  However, a recent administrative court decision confirms that the California Department of Social Services (“CDSS”) has a policy that could unfairly terminate Kin-GAP benefits for hundreds of former foster children.

NCYL is working to change the state’s policy of discriminating against former foster youth who enter the delinquency system and to ensure that when these kids are returned to their legal guardians, they are not stripped of vital resources that help keep their families intact.
 
In the NCYL case at issue, CDSS has taken the position that a child who formerly received Kin-GAP funds is disqualified from receiving those funds if he or she enters the delinquency system and becomes a ward of the court, even if that child is once again living with his or her relative guardian. Once Kin-GAP benefits are established, a child remains eligible for as long as the guardianship remains intact, the child is under the age of 18 (or, in some situations, under the age of 19), and the child continues to live with the relative guardian.²

Joseph’s Story

When he was 12 months old, Fresno County’s Child Protective Services removed Joseph Greggs³ and his sister from their parents’ custody.  The dependency court placed them as foster children with their grandmother, Gloria Greggs. Six years later, in January of 2000, the Court appointed Ms. Greggs as legal guardian for both of her grandchildren.  In 2006, the Court closed Joseph’s dependency case and ordered that Ms. Greggs begin receiving monthly Kin-GAP payments in the amount of $560 a month, which later increased to $573, for the care and upbringing of Joseph. Like many guardians receiving Kin-GAP benefits, the funds were necessary for Ms. Greggs to support Joseph and his sister.

Joseph has suffered from Attention Deficit and Hyperactivity Disorder (ADHD) since he was a young child. Joseph’s Medi-Cal was connected to a county in which he did not live,⁴ and because of difficulties related to his out-of-county Medi-Cal status, he did not receive the intensive home-based mental health services he desperately needed. As a result, his mental health needs were not addressed and his behavior problems escalated.  Between 2007 and 2008, Joseph was suspended from school more than 30 times.  Each time he was suspended, Ms. Greggs had to leave work and take Joseph home.  As a result, in June 2008, she lost her job as an attendant in a nearby school. That same month, Joseph was arrested in Santa Clara County and charged with a misdemeanor.

Because his mental illness was believed to be the underlying cause of his offense and because he was only 14 years old, Joseph was referred to and accepted into Santa Clara’s juvenile mental health court, the Court for Individualized Treatment of Adolescents (CITA).  Although the juvenile court adjudged Joseph a ward of the court in August 2008, the court released him to Ms. Greggs because she was his legal guardian. Unfortunately, Joseph still could not receive the mental health services he needed and his mental health and behavior problems worsened.  In September, the CITA court placed Joseph temporarily in juvenile hall in Santa Clara County.⁵  He returned to live with his grandmother on November 24, 2008.

Fresno County learned of Joseph’s detention in mid-November and terminated his Kin-GAP and Medi-Cal benefits, effective November  30, 2008.  The county told Ms. Greggs that as long as Joseph’s delinquency case in Santa Clara remained open and he remained a ward of the court, he could not receive Kin-GAP or the Medi-Cal linked to the cash benefit, even if he was living at home.  

In December 2008, NCYL requested an administrative hearing to have Joseph’s Kin-GAP and Medi-Cal benefits reinstated.  Prior to the hearing, NCYL was successful in persuading Fresno County to reinstate Joseph’s Medi-Cal coverage because it had been terminated in violation of the law.  However, at the hearing, Fresno County prevailed on the issue of Kin-GAP cash benefits.

Since December 2008, Ms. Greggs’ only sources of income are $669 in Social Security payments and $573 in Kin-GAP benefits for her granddaughter. Ms. Gregg’s monthly income was reduced by almost 50 percent after she lost her job and Joseph lost his Kin-GAP benefits. She has been unable to secure new employment. In the winter of 2008 and spring of 2009, buying Joseph clothes and shoes for school became a daily source of stress for Ms. Greggs. In fact, money was so tight that she began halving her own medication doses because she could not afford to pay for refills. She had to withdraw money from her savings to feed and care for Joseph in the months after his benefits were terminated and as a result, she has depleted all of her savings.

Because of the delays in connecting him to appropriate services, as well as the stress of making ends meet, Ms. Greggs was not able to manage Joseph’s mental health needs.  In mid-April, Joseph was back in Juvenile Hall, where he remained until July 2009, when he was placed in a group home.  Santa Clara County’s Department of Social Services is paying $5,449 per month for Joseph’s group home, almost ten times the cost of keeping him in Ms. Greggs’ home with Kin-GAP benefits.  

The CA Department of Social Services’ Interpretation of Kin-GAP Eligibility

The fact that Joseph is no longer able to live with his grandmother is antithetical to the stated goal of Kin-GAP, which is to “enhance family preservation and stability.”  Why, at a time in his life when Joseph most needed love and stability, did Fresno County cut off Kin-GAP benefits, making it financially impossible for his grandmother to provide a home for him?

In its position statement, the County, relying on direct guidance from CDSS, stated that Joseph could not receive Kin-GAP benefits because he entered the delinquency system and his subsequent status as a ward of the delinquency court disqualified him from the Kin-GAP program.  In support of its position, the County cites to a 2006 change in the law governing Kin-GAP.  By adopting the administrative law judge’s proposed decision, CDSS agreed with this argument. Yet an analysis of the law and the All County Letters (ACLs), which clarify the State’s policy, demonstrates that CDSS’ interpretation is incorrect.  Children, like Joseph, that receive Kin-GAP funds pursuant to a relative guardianship do not become ineligible for those funds just because they subsequently enter the delinquency system.  

Kin-GAP Eligibility

There are two distinct and separate ways to create a guardianship through the juvenile court: through the dependency system (like Joseph’s guardianship) and through the delinquency system.⁶   Prior to October 2006, Kin-GAP eligibility was limited to foster children for whom a guardianship was created through the dependency system.  In October 2006, the program was “extended to allow KinGAP benefits to be provided to probation youth in foster care and under the supervision of the juvenile delinquency court” whose guardianships were created through the delinquency system.⁷ 

To be eligible to receive Kin-GAP benefits, a child under 18 must meet the following conditions:

1. Has been adjudged a dependent child of the juvenile court pursuant to Welfare and Institutions Code § 300, or, effective Oct. 1, 2006, a ward of the juvenile court pursuant to Section 601 or 602.
2. Been an eligible child who lived with a relative for at least 12 consecutive months.
3. Has had a kinship guardianship with that relative established as the result of the implementation of a permanent plan pursuant to Welfare and Institutions Code § 366.26.  
4. Has had his or her dependency dismissed after Jan. 1, 2000, pursuant to Section 366.3, or his or her wardship terminated pursuant to subdivision (e) of Section 728, concurrently or subsequently to the establishment of the kinship guardianship. ⁸

Regardless of how the guardianship is created,  once Kin-GAP eligibility is established, the child remains eligible for Kin-GAP benefits until the child turns 18 ⁹ as long as the guardianship remains intact and the child continues to live with the relative guardian.¹⁰

The State Fails to Distinguish Between the Two Categories of Children Eligible for Kin-GAP

In their analysis of the law, both the State and Fresno County fail to make the distinction between guardianships established through dependency (via Welf. & Inst. Code §300) and those established through delinquency (via Welf. & Inst. Code §728(d)).  Yet this distinction is key to determining a child’s eligibility for benefits after becoming a ward of the court.  

The first of the four listed requirements for Kin-GAP eligibility makes clear that there are two different categories of children that may receive Kin-GAP:  those who entered the system as foster children (that is, pursuant to Welf. & Inst. Code §300)¹¹ and those who entered the system through delinquency (that is, pursuant to Welf. & Inst. Code §§602).  Both of those categories of children must have lived with their relative for 12 months and had a kinship guardianship established (the second and third requirements, respectively).¹²  The fourth requirement again separates the two categories of children, establishing different eligibility conditions for each:

• For children whose guardianship was created in dependency court, “dependency [must be] dismissed after January 1, 2000, pursuant to Section 366.3, or”¹³
• For children whose guardianship was created in delinquency court, “their wardship [must have] terminated pursuant to subdivision (e) of Section 728, concurrently or subsequently to the establishment of the kinship guardianship.”¹⁴

CDSS erroneously decided that the delinquency court must terminate Joseph’s wardship in order for him to receive Kin-GAP.   The requirement of a closed delinquency case does not apply to Joseph or other children whose guardianships were created through the dependency court.  It only applies to children whose guardianship was created through the delinquency court.  Joseph need only demonstrate that his dependency was dismissed pursuant to Welfare and Institutions Code §366.26 – which it was when the court closed his dependency case in 2006 and ordered that his grandmother become his legal guardian.  

ACLs Make Clear That 2006 Law Change Does Not Affect Kin-GAP Eligibility for Children Whose Guardianships Were Created Through Dependency Court

Prior to the 2006 change in the law, children who had kinship guardianships established through dependency and then became wards of the delinquency court were not required to have the wardship terminated in order to be eligible for Kin-GAP.¹⁵  While the 2006 change created an additional way for youth to gain access to the Kin-GAP program, the legislation and All County Letters (ACLs) are clear that this change was not intended to limit eligibility for children who already had a guardianship through the dependency system. Indeed, the ACL describing the expansion specifically states that the “benefit and funding enhancements did not change the basic KinGap eligibility requirements.”¹⁶ That is, the eligibility requirements for children with guardianships through the dependency system (pursuant to Welf. & Inst. Code §366.26) have not changed. In fact, nowhere in the language of the Welfare and Institutions Code, nor in the ACLs, is there any indication that the 2006 expansion of the law affects the population of children who had a relative guardianship established through the dependency system and then subsequently become a ward of the court.

The State’s Interpretation Undermines the Purpose of the Kin-GAP Program

CDSS’s interpretation of the law also contradicts the stated purpose of the Kin-GAP program --  to “enhance family preservation and stability by recognizing that many children are in long-term, stable placements with relatives.”¹⁷  According to the State’s position, when a dependency court creates a kinship guardianship for a foster child, the child can receive Kin-GAP benefits, allowing the guardian to care for the child. However, if that same child later comes under juvenile court jurisdiction for a delinquency matter, the delinquency court can place the child with the guardian (ostensibly because he or she is the legal guardian) and expect the same level of care, but the child would no longer receive Kin-GAP benefits. This position unduly punishes both the child and guardian by stripping the family of vital resources even when a court does not alter the guardianship relationship, and in fact orders the child to remain in the guardian’s home.  Furthermore, the state’s position will deter relatives from becoming guardians because of the risk of losing all funding if the child becomes involved in the delinquency system at some later point.

Conclusion

The state’s recent interpretation of Kin-GAP eligibility law could be devastating to many former foster youth who have been living in a stable, loving environment through a kinship guardianship established in dependency court.  Like Joseph, if any of these children end up in the delinquency system, they are at risk of losing their Kin-GAP benefits.  For many kinship guardians, providing a home for their young relatives is a financial struggle – and the loss of Kin-GAP benefits could mean they can no longer provide appropriate care for the child.  Like Joseph, these children are more likely to end up in a group home or mental health treatment facility.  Such placements come at an enormous financial cost to the county as well as threaten the well-being of the child.