The Constitutional Rights of Kinship Families Kathleen G. Noonan, JD

1. The Constitutional Rights of Kinship FamiliesKathleen G. Noonan, JD July 23, 2015,

2. DISCUSSION OUTLINE • Overview • The Law: Constitutional Implications • Associational Rights & Liberty Interests • The Law: Statutory Support & Maintenance • Title IV & Child Welfare Act • State Support Questions & Discussion

3. THE LAW: CONSTITUTIONAL RIGHTS • Removing children from the care of relatives implicates constitutional protections • Liberty Interest – the Fourteenth Amendment’s Due Process Clause protects “fundamental liberty interests” • Includes “freedom of personal choice in matters of family life” • Includes “protection from state intrusion” • Right of Intimate Association – right to enter into and maintain intimate human relationships, including family relationships

4. LIBERTY INTEREST (SUPREME COURT) • Supreme Court acknowledges existence of a “private realm of family life which the state cannot enter. • Meyer v. Nebreska (1923); Pierce v. Society of Sisters (1925) • Freedom of personal choice in matters of marriage and family life protected by SDP of 14th Amendment • Cleveland Board of Edu. v. LaFleur (1974) • Applies to extended family as well as nuclear family because of the tradition and history of extended family (kinship) care in U.S. • Moore v. City of East Cleveland (1977)

5. LIBERTY INTEREST (LOWER COURTS) • Children possess a liberty interest in maintaining the family environment they have known since birth without state intrusion • Three factors to consider: • (1) whether biological relationship exists between kinship care-givers and child; • (2) whether there is a relationship between family members that pre-dates foster care placement; • (3) whether child’s parents support the kinship placement • Rivera v. Marcus (Second Circuit, 1982)

6. INTIMATE ASSOCIATION (SUP. CT.) • The right to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because such relationships safeguard the individual freedom that is central to our constitutional scheme • United States v. Jaycees (1984)

7. INTIMATE ASSOCIATION (LOWER CT) • Foster children have a constitutional right to be placed with their siblings or be allowed to visit on a regular basis Aristotle P (USDC N.D. Ill., 1989) But see, Connors v. Patrick, in class action court found that adequately stated a constitutional claim based on denial of contact with parents and siblings, but ultimately denied because actions fell short of “substantial departure” and “shocks the conscience” standard. (D. Mass, 2014)

8. THE LAW: FEDERAL STATUTORY RIGHTS OF SUPPORT • Title IV Social Security Act provides for foster care maintenance payments which are directed to foster care providers • Requires foster family home to be licensed to receive payments • Title IV benefits cannot be denied because caretaker related to children, Miller v. Youkaim( S.Ct. 1979) See California State Foster Parent Ass’n v. Wagner, CWA provisions created enforceable federal right of action to foster care maintenance payments (Ninth Circuit, 2010)

9. STATE SUPPORT PAYMENTS • Courts have upheld state statutes denying foster care payments to kinship care givers • California (King, 1986) • Oregon (Lipscomb, 1992)

10. Questions & Discussion • If a failure to place foster children with available relatives implicates children’s associational rights protected by the Constitution and some state constitutions, how can these rights be used to support kinship placements or visitation? • If a failure for states to provide adequate support for kinship care-givers rests on statutory grounds (Title IV, Child Welfare Act, etc.) (rather than Constitutional grounds), how can this be used to support kinship families?

11. POLICYLAB The Children’s Hospital of Philadelphia 3535 Market Street, 15th Floor Philadelphia, Pa 19104 267.426.5300 noonank@email.chop.edu Twitter: @PolicyLabCHOP www.policylab.chop.edu