Gupta-Kagan: "(De)Funding Family Separations"

Josh Gupta-Kagan (Columbia Law School) has recently posted to SSRN his paper, (De)Funding Family Separations.  Here is the abstract:

ederal foster care funding exists in tension with foundational family law principles. The law protects family integrity: the state may only separate parents and children in extreme cases and, when it does, the state must work to reunify families. Yet the federal funding system directs billions of federal dollars to support CPS agencies and pay subsidies to foster parents, adoptive parents, and guardians. It does so via an open-ended entitlement, so that the more families a state separates, the more federal funds it receives. This system makes it relatively cheaper for CPS agencies to take custody of children, incentivizes states to support permanent destruction of families and creation of new ones through terminations of parental rights and subsequent adoptions, and diminishes state courts' role in checking state agency power by enlisting them in efforts to maximize federal funding. The federal funding system also incentivizes families to agree to parent-child separations as a condition of aiding kinship caregivers, and incentivizes foster parents to seek permanent destruction of families and new permanent custody arrangements. The federal funding system's history and operation demonstrates how it serves to divert public benefits from parents, specifically CPS agencies and kinship and non-kinship foster parents, adoptive parents, and guardians.

Any reforms need to enable parents to receive necessary public benefits--which an increasing body of research shows limits child maltreatment and CPS agency involvement--and provide aid to kinship caregivers without requiring family separation or incentivizing family destruction. This article proposes a range of reforms to align financial incentives with the law's commitment to family integrity, and thus push the system towards separating families only when necessary. First, it proposes a set of incremental reforms to limit the worst incentives of the present system. Second, it proposes a mechanism to provide support to kinship caregivers without requiring the separation of parents and children. Third, it proposes a fundamental rethinking of the federal funding system: Congress should repeal the open-ended entitlement nature of the federal funding system, and direct similar funds to states to invest in efforts to prevent child maltreatment and prevention activities or foster care costs.