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Kentucky foster families take fight for aid to appeals court

A class of foster families argued before the Sixth Circuit that Kentucky's refusal to provide maintenance payments to children placed in the custody of a family member violates federal law.

CINCINNATI (CN) — A set of Kentucky legislative policies that deny payments for foster children placed in the custody of family members and do not provide administrative recourse violate federal law, foster parents argued Thursday before an appeals court panel.

The underlying federal lawsuit was filed in 2018, and eventually comprised four separate classes of individuals, including foster children, foster parents or caregivers, "cabinet custody" children and a "notice and hearing" class.

All of the plaintiffs sought injunctive relief to require Kentucky to provide foster care maintenance payments, or FCMPs, to all children removed from their original residence and placed in the custody of a qualifying individual, be they foster parent or family member.

Additionally, the notice and hearing class sought relief for the commonwealth's failure to provide proper notice of its members' eligibility for the payments, or an appeal mechanism to challenge denial of benefits.

The case turned on whether Kentucky accepted custody of a child – in which case it would be required to make benefit payments – when the child was removed from their original home and temporarily placed in the custody of a family member.

U.S. District Judge Gregory Van Tatenhove sided with the Kentucky Cabinet for Health and Family Services and granted its motion for summary judgment in May 2020. Van Tatenhove, an appointee of George W. Bush, determined that while the agency provides "services" to those children placed with a relative, that does not entitle them to maintenance payments.

"The Cabinet," he wrote "provides all sorts of services to all sorts of children -- including children who are not removed from their homes. The court is not prepared to say the Cabinet has 'placement and care' responsibility over the plaintiff children by virtue of providing services alone."

On appeal to the Cincinnati-based Sixth Circuit, the classes of children and foster care providers argued in a brief that Kentucky misconstrued federal law and implemented contradictory policies when it denied the maintenance payments. The family services agency is required to provide ongoing services to provide permanent placement or reunification for a child even after the child is placed temporarily with a family member, including FCMPs, according to the brief.

"When a child's parental custody is severed in a [dependency, neglect, or abuse] removal proceeding, the court cannot leave the child in custodial limbo, but must immediately decide where the child will go," the brief states. "Ordering the child into temporary custody of a relative or fictive-kin caregiver, as opposed to the Cabinet, is not usurping the Cabinet's responsibility for the child's placement and care."

In its brief to the appeals court, Kentucky argued that under state law, a child cannot be placed in the custody of the cabinet and a family member at the same time, and that its avoidance of payments to those children allows for better expenditure of tax dollars.

"Kentucky [can] expend scarce tax dollars for innovative programs to preserve troubled families or reunite children to their parents," the brief states, "without having those funds drained away defending costly litigation, of which this case is a prime example."

Attorney Douglas McSwain argued on behalf of the foster parents at Thursday's hearing. He told the three-judge panel Kentucky has never provided the maintenance payments, but adopted a formal policy after the 2017 Sixth Circuit decision in D.O. v. Glisson that has "created an absurd disparity" among benefit recipients.

Throughout the arguments, the panel focused on whether courts or the cabinet exercise "placement and care responsibility" over the foster children. U.S. Circuit Judge John Nalbandian, a Donald Trump appointee, asked McSwain if the state agency is always involved in placement decisions.

The attorney told Nalbandian it is, regardless of who files a petition to remove a child from their home, but that agency decisions must be ratified by a judge.

"You're telling us the cabinet is overseen by the court, which is playing a greater role than I thought when I read the briefs," said Senior U.S. Circuit Judge David McKeague, a George W. Bush appointee.

"You can't have it any other way," McSwain said, "It's baked into the Child Welfare Act."

Attorney Brent Irvin argued on behalf of the state, telling the court Van Tatenhove correctly interpreted Congress's intent when it created the Child Welfare Act.

Nalbandian was clearly conflicted regarding which party has ultimate placement responsibility, and spoke at length throughout Irvin's argument.

"If I'm whispering in the judge's ear," he said, "and he takes everything I say as gospel ... at what point do I assume responsibility?"

Irvin admitted responsibility can be delegated in some circumstances, but defended Kentucky's policy.

"This is not some dodge that we came up with after the Glisson case," he said.

During McSwain's rebuttal, Nalbandian's hesitancy surfaced again.

"Judges are reluctant to cede power," he said, to the amusement of his colleagues, and "whispering in someone's ear is not the same as putting your name on the line."

U.S. Circuit Judge Eric Murphy, another Trump appointee, rounded out the panel.

No timetable has been set for the court's decision.

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