Kentucky needs Kinship Care but that’s not what federal lawsuit is about

Richard Dawahare
Richard Dawahare

Respectfully, Blake Brickman was wrong in his May 4 op-ed. As part of Gov. Matt Bevin’s smear campaign against the Beshears, Bevin’s chief of staff misrepresented the lawsuit I filed on behalf of two indigent, neglected children and their great-aunt. This action has nothing to do with Kinship Care. It has everything to do with forcing Kentucky to follow the federal law mandating it to pay my clients the same foster care maintenance payments it pays to children placed in non-relative foster care.

This case arose through my service as a guardian ad litem for neglected and abused children. In 2013 the court appointed me to represent two young boys removed from their home. The Cabinet for Health and Family Services approved a great-aunt, but she could only afford to take one of the boys. One was placed with her, the other in a foster home. This was a grave injustice that I sought to correct. Looking for a way to unite the brothers I discovered that the cabinet was wrongly denying them foster care maintenance payments, and not only to them but to all other children placed with relatives.

I therefore filed a motion demanding for this family the same foster care maintenance payments that children placed with non-relatives were getting. The cabinet refused. This eventually led to the federal lawsuit against then-cabinet secretary Audrey Tayse Haynes (and then-Gov. Steve Beshear and then-Attorney General Jack Conway, who were dismissed).

The Child Welfare Act of 1980 clearly protects my clients’ rights: 42 U.S.C. § 672(a)(1) states that “Each State with a plan approved under this part shall make foster care maintenance payments on behalf of each child who has been removed from the home of a relative…into foster care.” The federal definition of foster care includes relative caregivers like the great-aunt.

But Kentucky has never followed this law, and has thereby cheated some of its most vulnerable citizens for decades. This is especially cruel considering that the federal government reimburses up to 80 percent of these payments back to the commonwealth.

Kinship Care is a completely different program that is optional, unlike the mandatory foster care maintenance payments. States that opt in get federal reimbursement for paying relative caregivers who commit to taking permanent custody. It pays about half the regular foster care payment but continues until the child turns 18. While I strongly support it, and roundly criticized the Beshear administration for its moratorium, our lawsuit has absolutely nothing to do with Kinship Care. It only involves foster care maintenance payments for children in temporary custody, whether that is with an approved relative or a licensed non-relative foster home.

The governor claims he is obligated to continue his fight against these children. While the commonwealth has the right to seek Supreme Court review it is in no way obligated to do so. Nor is he “constitutionally obligated” to defend Kentucky's termination of Kinship Care, because that is not and never has been the issue. He is also wrong when he says there will be no cost to the taxpayer. Kentucky must pay the expenses, which are often substantial.

Richard Dawahare is an attorney in Lexington.