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Relative Caregivers Entitled to Benefits for Children in Delinquency Court

A California Superior Court judge has ruled that relative caregivers are entitled to cash assistance when the children they care for get in trouble with the law and are returned home on probation.

The Nov. 22 ruling is a significant victory for the thousands of children in California who receive benefits under the Kinship Guardian Assistance Payment program (Kin-GAP). The program provides cash support to former foster children who are living with relatives as their legal guardians.

The lawsuit was brought on behalf of Shirley Brazwell, the legal guardian for her grandson, whose Kin-GAP benefits were terminated when he was placed in juvenile hall. When her grandson was released, Fresno County told Ms. Brazwell that she could not receive Kin-GAP benefits so long as her grandson was a ward of the court, even though he was living in her home. Ms. Brazwell depleted her savings trying to care for him, and because of delays in connecting him to necessary services, could not manage his needs. As a result, the juvenile court sent him back to juvenile hall and later placed him in a group home in Santa Clara County. The county paid $5,449 per month to pay for the group home, almost 10 times the cost of what it would have cost to provide Kin-GAP benefits to Ms. Brazwell.

The ruling came after the National Center for Youth Law, the Alliance for Children’s Rights, and Morrison & Forrester, LLP, filed a lawsuit against the California Department of Social Services (CDSS). The suit, Brazwell v. Wagner, challenged the state’s interpretation of the Kin-GAP statute in denying benefits to these children.

More than 14,000 children in California receive benefits through the Kin-GAP program, which provides cash assistance and Medi-Cal to foster children whose relative guardians have agreed to become 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. Until recently, 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 to their guardians on probation.

Thus, as of 2006, two different groups of children were eligible for Kin-Gap: 1) foster children whose relative guardianships were created through the dependency court pursuant to WIC 300, whose dependency case had been dismissed pursuant to WIC 366.26; and 2) foster children whose relative guardianships were created through the delinquency system and whose wardships were terminated pursuant to WIC 728. A subsequent wardship has no effect on Kin-GAP eligibility for a child whose guardianship was created through the dependency system, so long as the guardianship remains intact and the child remains living with the legal guardian.

The state’s unlawful policy stemmed from a misinterpretation of the statute that disregards the existence of these two separate categories of children.

In his Nov. 22 decision, Alameda County Superior Court Judge Frank Roesch ruled that the state’s position was contrary to the plain language of the statute and to the Legislature’s intent in enacting the Kin-GAP program. He said that probation does not change the status of a guardianship and that benefits should continue for the duration of the guardianship.

Judge Roesch recognized that a guardianship can be created through the dependency or delinquency systems. He said that if a child’s became eligible for Kin-GAP through the dependency system, a subsequent delinquency would not terminate eligibility. The Court’s decision preserves the ability of families to stay together and be supported so long as the underlying guardianship remains intact.



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