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

2. The Law: Constitutional Implications
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
To understand the legal rights of children and their kin to remain together
What support does government owe kinship caregivers

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)
Moore involved city ordinance which limited occupancy of a home to the nuclear family; grandmother wanted to live their with her son and two grandsons – convicted of violating the law. The law struck down as a violation of the 14th amendment due process liberty protections; personal liberty in matters of marriage and family extends beyond the nuclear family to the tradition of kinship relationships in the US

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)
Rivera involved an adult half-sister who was custodial relative and foster parent to two children living in her home; state removed the children from her care and provided inadequate process (she was allowed to bring an attorney to the hearing where she contested removal). Adult half-sisters’ rights were violated; acting as a foster parent to half-siblings, she had constitutionally protected liberty interest in that relationship which state’s ability to remove kids.

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)
First amendment right to association but could be trumped to prohibit discrimination at club that was open to men but not women.

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)
Foster children challenged state practice of placing siblings separately and denying the children the opportunity to visit their sisters and brothers who were placed elsewhere. Court concluded that state’s practice violated the children’s first amendment right to intimate association and 14th amendment liberty interest.

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)
Miller v. Youkaim: Illinois law denied federal foster care assistance benefits to licensed foster caregivers who were related to their foster children. Case resolved on statutory grounds with the court concluding that Congress did not intend this distinction between related and unrelated foster parents to exist; relative foster parents were entitled to payments.

9. STATE SUPPORT PAYMENTS
Courts have upheld state statutes denying foster care payments to kinship care givers
California (King, 1986)
Oregon (Lipscomb, 1992)
California state court – different treatment was reasonable because it was rationally calculated to achieve goal of provide the maximum amount of foster care payments available. Oregon was federal court analysis if state law – applied rational basis test and came to same conclusion.

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?

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