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Kentucky foster families that take in relatives are not entitled to benefits, panel rules

A federal appeals court found the Bluegrass State is not required to provide maintenance payments for children placed in the custody of a family member.

CINCINNATI (CN) — The commonwealth of Kentucky does not have "placement and care responsibility" over foster children put in the care of their relatives, and so the foster families are not entitled to maintenance payments under federal law, a Sixth Circuit panel ruled Friday.

The decision affirmed a federal judge's dismissal of claims brought by a class of Kentucky caregivers and foster children and ratified the state's argument that foster care maintenance payments are paid to foster families only after a court commits a child to the custody of the Cabinet for Health and Family Services.

U.S. District Judge Gregory Van Tatenhove, a George W. Bush appointee, admitted in his May 2020 decision for Kentucky that the cabinet provided services to the children temporarily placed in the homes of family members, but emphasized these services did not entitle the family member to maintenance payments.

The foster parents appealed to the Sixth Circuit and arguments were held before a three-judge panel in October 2021.

U.S. Circuit Judge John Nalbandian, a Donald Trump appointee, wrote the panel's opinion and began with a textual analysis of the statute at issue, the Title IV-E program of the Social Security Act, created in 1980 by the Child Welfare Act.

Nalbandian explained the cabinet only has "placement responsibility" – and a corresponding duty to make maintenance payments – when it has a duty or obligation to place a child, which is not present when a court decides to place a child with a family member.

The families argued Kentucky's approved plan for the Title IV-E program imposes certain requirements on the commonwealth, including placement responsibility, but Nalbandian disagreed.

"True, Title IV-E sets out plenty of requirements for approved state plans," he said. "But although those requirements require the cabinet to monitor children, develop a case plan, and work to find permanent custody, those obligations fall short of placement responsibility.

"Most of all, they do not create an obligation to place a child. Instead, these obligations could either be 'care responsibilities' or other general obligations. In the end, the plaintiffs stretch the definition of placement too thin."

Nalbandian pointed out that Kentucky law supports the viewpoint taken by Van Tatenhove and the appellate panel, considering family court judges make determinations regarding temporary custody of the individuals involved in the suit, regardless of any entity that provides services.

"The planning, monitoring, and other services the cabinet provides fall short of the ability (or responsibility) to place children," he said. "And the cabinet provides many of these services to all removed children, no matter where the state court has placed them.

"This is even the case when the child remains in the home. And the plaintiffs cannot seriously argue (nor do they try to argue) that the cabinet has placement responsibility over children still in their homes. So we fail to see how services alone can confer placement responsibility onto the cabinet."

U.S. Circuit Judge Eric Murphy, another Trump appointee, agreed with the panel's ultimate decision, but authored a concurring opinion to explain his thoughts about the statutory construction of Title IV-E of the Social Security Act.

Murphy expounded on the ambiguity present in the words "placement" and "responsibility" in the legislation, and pointed out the federal government's own Child Welfare Manual states the government will not revoke funding to states when a court disagrees with a placement agency's recommendation.

"This manual," he said, "suggests that a duty to offer a placement recommendation can suffice to give an agency placement responsibility (and permit federal funding) as long as the court with decisionmaking authority considered the recommendation."

Ultimately, Murphy determined that because Congress passed the Child Welfare Act under the spending clause of the U.S. Constitution, the federal government was required to provide "clear notice" to states regarding whether they would be "on the hook" for additional payments if they participated in the foster-care program.

"Because Kentucky could have reasonably believed that the Child Welfare Act applied only when the cabinet itself had final placement authority, we cannot impose this additional burden on the state fisc after the fact," he concluded.

Senior U.S. Circuit Judge David McKeague, a George W. Bush appointee, rounded out the panel.

Neither party immediately responded to requests for comment Friday.

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