Under federal law, states are required to institute “case review procedures that ensure the foster parents (if any) of a child and any pre adoptive parent or relative providing care for the child are provided notice of, and a right to be heard in, any proceeding held with respect to the child.”¹  Jurisdictions should have a process in place to provide notice and encourage attendance of kin caregivers at all hearings. Courts can further encourage participation by making hearings accessible by offering virtual options, flexible scheduling, and supportive environments.

A key component of cultivating a kin-first culture is fostering an inclusive courtroom environment that effectively engages youth, parents, and kin at every hearing. This active engagement will help ensure individuals with an important relationship with the child, such as relatives and close family friends, are provided the opportunity to stay involved in the child’s life. Active engagement also will provide the court with helpful information needed to make informed decisions about the case and to ensure successful outcomes for the family. The goal of conducting a quality hearing is best met when the following components are included:

        1. The active presence and participation by key parties;

        2. Engagement of parents and youth;

        3. A discussion of key topics; and

        4. Oral (verbal) findings being made on the record.²

Kin caregivers are a useful source of information about the child and the family’s needs and can help guide decisions about the child’s future. Some jurisdictions offer forms that kin may complete to provide written information to the judge, either electronically or by mail, about a child, prior to a hearing or at any time in the case. Although these “letters to the judge” can contain useful information, it is preferable for the kin to attend the hearing and be allowed to discuss their perspective in person. Honorable Edwina Richardson Mendelson, New York Deputy Chief Administrative Judge for Justice Initiatives encourages judges to “Ask the families what they need. Ask the children what they want. Ask at each and every court appearance whether the family can be reunified with support if there has been separation. If not, ask about kin and whether there are any kin caregivers for the child."³

To ensure meaningful participation of kin who attend hearings, judges should ask kin about:

1. The child’s progress and needs;
2. Their commitment to the child and whether they are receiving services and support to take care of the child;
3. How this placement has affected the kin caregiver’s relationship with the child’s parents;
4. Their understanding of placement and permanency options to care for the child and if they have received any written materials explaining these options; and
5. Any opportunities they have had to meet with a lawyer or get any helpful legal advice; and
6. For non-placement kin, their desire to stay connected to the child and how they can best support the family.

Additionally, the appointment of well-trained, high-quality attorneys for parents and children who advocate zealously can help both parents and children have a meaningful voice in court. When appropriate, the judge should ask the child or youth questions directly and listen to their wishes. If the kin caregiver is not present, someone else on the child’s team (the agency caseworker or child’s attorney) may be able to share information on the kin caregiver’s behalf; but the judge should hear directly from the caregiver whenever possible.

Prior to court, legal professionals can prepare children, parents, and kin by making sure they understand the purpose of the specific hearing, as well as the court’s expectations of the participants. This includes making sure the case workers are prepared to provide the court with information about efforts made to support the family toward achieving permanency.

Equally important is taking time after the hearing to review what happened in court with all present, making sure the court order is accurate, and following up with the agency to make sure that, if necessary, the case plan is revised to reflect the court's expectations regarding the case.  Attorneys should use easily understood language to review the results of the hearing with clients in a manner that does not speak down to them.

Ultimately, it is important to listen respectfully to the entire family when planning for the care of the child, as well-informed and engaged families are their own best expert.

Holding effective child welfare hearings that prioritize permanency and recognize the trauma of family separation requires a child-centered and trauma-informed approach.  A trauma-informed approach will:

1. Recognize the trauma by acknowledging that removal is deeply disturbing for children and parents.
2. Ensure that all participants, including judges, attorneys, and caseworkers are trained in trauma-informed care.
3. Minimize anxiety in hearings to reduce re-traumatization by using child-friendly language, reducing adversarial tones, and allowing youth, parents, and kin to have a voice.

Reiterate the importance of achieving permanency for the family by ensuring services are readily offered and available, as well as by conducting hearings with a sense of urgency and accountability. For example, hold frequent review hearings at short intervals (e.g., every 30-60 days) to monitor progress and ensure services are provided, and adjust as needed.  Avoid unnecessary delays by ensuring children, parents, and kin receive timely access to services rather than being placed on long waitlists and by eliminating unnecessary hearing continuances.

Additionally, the court should address the need for consistent and meaningful visitation with parents and kin at every hearing. When possible, visitation frequency should be increased with a move toward unsupervised visits as soon as safe. The court should also encourage and order visits and frequent contact with extended family. The agency should be working closely with foster caregivers and kin to facilitate and maintain a positive connection between children and their parents and to allow for co-parenting and mentoring to occur.

Finally, the court should ask about efforts to keep siblings together to minimize the trauma of removal and, if they cannot be together, should ensure that siblings are visiting and connecting frequently. This focus should include siblings who are not involved in the child welfare system.

Kin caregivers are often unfamiliar with the child welfare and court systems. They may find it difficult to navigate these complex systems and fear that asking for help will result in removal of children. Kin often do not qualify for free legal representation but also cannot afford an attorney. If kin attorneys are available in the jurisdiction, make sure legal referrals are provided.

In many jurisdictions, Kinship Navigator Programs are available to help explain the system, legal options, and any restrictions on kin who wish to make placement and permanency decisions when the child welfare system is involved. These programs can also refer kin to benefits and services. However, it is the job of all professionals to make sure that kin receive the assistance and support they need to allow them to meet the needs of the child in their care.

Professionals working with kin should meet with kin to explain their unique role as an attorney for a specific party and explain the child welfare process and all legal terms, using appropriate language and making sure not to speak down to kin. It is important to remember kin caregivers often assume their role during a time of crisis and didn’t anticipate the responsibility of caring for additional children. Therefore, kin may believe caregiving will be short-term and are not prepared to consider a long-term plan at the time of placement. Prior to and during hearings, legal professionals should inquire about the caregiver’s long-term commitment to care for the child. Additionally, kin should be active participants in all decision-making when planning for the child.

Kin caregivers may experience feelings of guilt and shame about their family circumstances, including a possible sense of their own failure as parents due to the child’s parents’ behaviors and actions, resulting in a reluctance to ask for help from friends, which may lead to social isolation. It is important to understand and acknowledge the changing dynamics when kin become the primary caregiver. Kin may struggle with assuming the role of the primary caregiver without hurting or replacing the parent and experience split loyalty by placing the child’s needs above those of the parents. Kin caregivers may also at times be placed in a position to disclose negative information about the parent’s actions to the court in order to keep the child safe. Be sensitive to kin’s shifting loyalties from the parent to the child and how that may impact their ability to keep the child safe and work with the parent. Judge Richardson Mendelson challenges judges to “Lead with humility and humanity: Set the tone in your courtroom. The families that come before you do not want to be there. They are angry, scared, and perhaps in crisis. Listen to what they say with open ears, an open mind, and an open heart. What we do is hard. What these families are going through is harder. It is very easy to shut down and turn off when you hear angry words, or hurt, or are shown signs of apparent disrespect."⁴

Ultimately, it is important to always respect parents and kin’s opinion about their family and demonstrate respect and empathy for family members. By focusing on the strengths of the family and actively listening to each family member legal professionals can validate the participatory role of family in caring for and planning for the future of the child. 

As referenced in other sections of this toolkit, each placement and permanency option has unique challenges, rights, and legal responsibilities for the kin caregiver. The various alternatives vary by state and can be very overwhelming to kin who have the main goal of supporting the family and caring for the child. Judges and attorneys should learn what options exist in their jurisdiction and make sure that the kin caregiver understands the impact of their choices, both legally and financially, as kin rarely have their own legal counsel. 

The agency attorney should make sure kin are invited and encouraged to take an active role in decision-making meetings; it is important that kin assist with planning for the child and are supported when choosing the legal option that they are comfortable with and is right for them.

Parents’ attorneys working collaboratively with their clients and the kin to help make informed placement and permanency decisions is critical. The parents may be hesitant to include family members, but as their attorney, counseling them about realistic goals of the case can assist with difficult choices. 

The children’s attorney or GAL should ensure that their client’s wishes are honored whenever possible and that kin caregivers have what they need to care for the child, both short term and long term, if needed.

Finally, the judge should ask questions to assess kin’s understanding and to ensure kin do not feel coerced to pursue a certain placement or permanency path. Kin may be unfairly pressured into caring for children without understanding their options or receiving appropriate services and financial support. Judges should encourage kin to ask questions and share their perspective to help the judge make important care and custody decisions and issue court orders that accurately reflect needs and expectations to safely care for the child after the case is closed. Prior to closing the case, the court should determine if adequate support and post-permanency resources are in place or available to support successful permanency for the child.

The main goal of kinship laws and policies is to keep the child connected with and, when possible, placed with their family when they cannot safely remain home. All legal professionals should be familiar with the various child welfare kinship policies and kinship laws in their jurisdiction to ensure compliance with these complex state and federal laws.

Families and parents are often hesitant to divulge information to the court and agency. The role of all professionals is to provide accurate and sufficient information that will help the court make difficult decisions that affect families.

Judges should enforce accountability by requiring that all professionals perform their tasks aimed at quick and safe permanency for the child, including requiring attorneys to regularly consult their clients prior to court, collect key information, and advocate zealously for their needs. The court has the difficult job of balancing the best interests of the child with the needs of the family and the parents’ rights and can best do so when all attorneys work as a team to support the family.