Laura Weinrib, Harvard Law School '03, served as Project Coordinator for the Massachusetts Appleseed Center for Law and Justice in 2001.
The past decades have witnessed a subtle but substantial transformation in the demographic of child rearing in Massachusetts. In response to such social phenomena as single parenthood, teen pregnancy, crime, child abuse and neglect, drug use, AIDS, incarceration, unemployment, and poverty, many parents have sought out innovative caregiving arrangements for their children.1 Today, nearly 70,0002 Massachusetts children live in households maintained by their grandparents. Twenty thousand more are in the care of siblings, aunts, uncles, and other relatives.3 The relatives who feed, nurture, clothe, school, and care for these children are known as "kinship caregivers."4 They are disproportionately poor and have limited access to legal resources. Children in "informal" kinship care relationships - those whose caregivers lack legal custody or guardianship - are especially vulnerable.5 Many schools and medical facilities, faced with prospective legal liability for acting without parental consent, deny services to informal kinship care children.
This article addresses two major obstacles encountered by children who are in the informal care of relatives. First, kinship care children may be excluded from school activities for which parental permission is required, and their caregivers may be foreclosed from participating in important academic and disciplinary decisions. Secondly, kinship care children may be denied routine medical treatment, including immunizations and physical examinations, crucial to effective preventive care. Although twenty-five states have enacted legislation to facilitate decisionmaking by kinship caregivers with respect to school enrollment and medical care,6 the Massachusetts legislature has thus far neglected to act. This article proposes educational and medical consent legislation as a mechanism for delegating decisionmaking authority in Massachusetts. The proposal, outlined in Part IV, would allow parents to delegate concurrent decisionmaking authority to a child's resident caregiver on an indefinite basis, subject to parental veto. Delegation would be achieved through a notarized form, bypassing the lengthy and expensive court proceedings that prevent many caregivers from obtaining guardianship. Consent legislation would neither supplant guardianship or adoption nor discourage family reunification. Rather, it would provide basic legal authority to caregivers who are legally powerless, in order to ensure proper education and medical attention to a growing and helpless population of Massachusetts children.
I. Kinship Care in Massachusetts
The increasing prevalence of kinship care has sparked substantial media and scholarly attention, both in Massachusetts and nationally. Within the past year, dozens of articles on kinship care have appeared in child welfare and legal journals. A June 2001 Boston Globe Sunday magazine cover story on the GrandFamilies House, a housing project in Roxbury, Massachusetts specifically designed for grandparents raising grandchildren, produced a barrage of community responses.7 In August, National Public Radio's Talk of the Nation featured a discussion of grandparent caregivers in light of results from the 2000 census - the first to include questions about relative caregivers.
Simultaneously, kinship caregivers have assumed a notable social and political presence. In 1999, Congress passed the National Family Caregiver Support Act to provide support services to relative caregivers.8 In 2000, the Urban Institute released a study of kinship foster care, commissioned by the U.S. Department of Health and Human Services at the direction of Congress.9 The American Homeownership and Economic Opportunity Act of 2000 contains a provision facilitating the development of new housing for grandparents raising grandchildren.10 Two bills pertaining to kinship care are currently pending in the Massachusetts legislature: H.B. 83111 would fund a study to determine the number of kinship care families in Massachusetts and what benefits they receive, and H.B. 83012 would establish a Family Preservation Trust Fund to support relative caregivers at a level consistent with that of foster parents. Dozens of relative support groups have formed in Massachusetts, and schools, hospitals, and legal assistance programs have become increasingly sensitive to the needs of kinship care children.
Despite growing awareness of kinship care, the special needs of relative caregivers and their children largely remain unmet in Massachusetts. Although kinship caregivers come from diverse socioeconomic backgrounds, a disproportionate number struggle to raise their children in poverty.13 According to estimates based on 2000 census data, one in three grandparents who are responsible for the care of their grandchildren are unmarried,14 nearly two in three are in the labor force,15 and more than one in eight have earned incomes below the poverty line for the past twelve months.16
Informal kinship caregivers in particular encounter many legal, social, and financial challenges in raising their children. As a population, informal kinship caregivers are largely invisible - legal reform efforts have focused primarily on kinship foster parents and guardians, who receive state funding. This proposal addresses two of the most prevalent and serious problems that face informal kinship caregivers. Informal caregivers are unable to make educational and medical decisions on behalf of the children in their care.17 Lack of legal guardianship may lead to delays in public school enrollment. Despite Massachusetts law to the contrary, many districts refuse to enroll children in informal kinship care households.18 Children may therefore be forced to attend school in the district in which their parents reside; if that district is far away, they may be unable to attend school at all. Even in school districts that comply with the residency law, caregivers may be unable to obtain the immunizations necessary to enroll their children in school. Such difficulties may be very costly with respect to a child's long-term educational success; even small gaps in schooling have been linked with developmental delays.19 The danger of barring children's access to health care is even more apparent. Because medical providers can act without parental consent only in case of emergency, they may be forced to delay treatment until a minor illness or injury becomes life-threatening.
The consent legislation described in this article would enable parents to authorize a caregiver to act on their children's behalf with respect to day-to-day medical and educational decisionmaking, without court intervention. The parents would retain all parental rights, including the ability to override specific decisions and rescind their delegation of authority at any time. Consent legislation would pose no cost to the government or to parental autonomy. It would, however, recognize the reality that many children in the commonwealth live in non-traditional households, and it would enable those children to attain the educational resources and medical attention they need and deserve.
II. Kinship Care and the Schools
Children living with informal relative caregivers face myriad educational obstacles. They may be refused admission to school if their parents fail to obtain the necessary immunizations.20 Once enrolled, they may be excluded from field trips and activities. Caregivers may be unable to obtain access to children's academic files. Nearly every Massachusetts statute pertaining to consent in the context of public education refers specifically to a child's parent or guardian.21 Parents or guardians may object to disciplinary actions or expulsion and recover in tort for unlawful exclusion,22 inspect student records,23 and affirm a child's decision to leave school permanently,24 and they are entitled to notification of a child's illness or disability.25 Informal kinship caregivers, conversely, have virtually no legal rights to intervene in a child's education; on the contrary, those schools that permit informal caregivers to stand in for parents may be violating the law.
A. Enrollment
In the summer of 2001, the Massachusetts Appleseed Center for Law and Justice (Appleseed)26 conducted a statewide survey on district enrollment policy and kinship care. Appleseed's Kinship Care Legal Assistance Program provides pro bono legal services to relatives who are seeking guardianships of the children in their care. Through this program and through outreach to kinship care support group leaders and advocates, Appleseed became aware that informal kinship caregivers were encountering difficulties in enrolling their children in the public schools, despite state law guaranteeing their access.
Residence requirements for enrollment in a Massachusetts school district are unambiguous: a child is entitled to attend school in the district in which she resides.27 The Massachusetts Department of Education's 1985 Advisory Opinion on Residence for School Attendance Purposes provides that school districts are legally bound to admit all children who "actually reside . . . in a town, whether with their natural parents, other relatives . . . or in virtually any other living situation," without regard to "technical questions of custody, guardianship and domicile."28 Moreover, the Department of Education has made explicit that "[a] school district may not condition a student's admission on . . . receipt of certain documents, unless those documents are specifically mandated by statute."29
To ascertain the degree to which Massachusetts school districts are unlawfully restricting the enrollment of students in informal kinship care arrangements, Appleseed surveyed more than two hundred school districts across the state.30 Of the 152 districts that responded to the survey, only thirty-one, or approximately twenty percent, reported practices that are consistent with state law as set forth in the Department of Education Advisory Opinion.31
Many school districts expressed reluctance to enroll informal kinship care children because their caregivers lacked legal authority to make school-related decisions. Although thirty-seven districts treat resident caregivers as guardians for the purposes of signing waivers and permission slips and in case of emergency, school officials in many of these districts expressed concern with potential legal liability should the parent or guardian object to a decision by the resident caregiver. Given relative caregivers' lack of legal authority to consent to school-related decisions and activities, most districts insist on communicating with a child's parents. This policy adversely affects those children whose parents or legal guardians are inaccessible, incapacitated, or unwilling to cooperate with the school.
B. Special Education
The school districts that responded to Appleseed's survey often cited concerns surrounding special education - and particularly the provision of expensive services to special needs children - as a rationale for requiring custody or guardianship as a prerequisite of enrollment. For the most part, those apprehensions were misguided: funding for special education services is strictly delineated by statute, as are the rules regarding who may authorize a child's educational plan.
All children in the commonwealth are currently entitled by Massachusetts law to attend school in the district in which they reside, regardless of their parents' place of residence.32 For children without special needs, the primary obstacles to participation in school involve disciplinary actions, permission slips, access to records, and other daily decisions ordinarily made by a parent or guardian. The complications surrounding educational decisionmaking do not, however, extend to special education. Relatives may participate fully in developing the curricular programs of special-needs children who are in their care. In fact, special education is the principal exception to the narrow statutory definition of "parent." The U.S. Department of Education regulations implementing the Individuals with Disabilities Education Act (IDEA),33 which provides much of the funding for special education in Massachusetts, defines the term "parent" to include "a person acting in the place of a parent (such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for the child's welfare)."34 Similarly, the Massachusetts Department of Education regulations define parent as "father, mother, guardian, person acting as a parent of the child, or an educational surrogate parent appointed in accordance with federal law."35
School districts' hesitancy to base enrollment of special education children on the residence of the child may stem from confusion over their financial responsibilities. Although school districts are bound to enroll students with special needs regardless of their parents' place of residence, they need not fund special education services. The Massachusetts Department of Education's regulations provide that "[t]he parent's school district shall have financial responsibility and the resident school district shall have programmatic responsibility when an eligible student is in a living situation . . . including . . . a relative's home that is not funded by the Department of Social Services. . . ."36 Despite their broad definition of "parent," however, the regulations define "parent's school district" as "the school district where the father, mother, and/or guardian resides."37 Special needs children are therefore unlikely to be substantially affected by educational consent legislation. A child residing with a kinship caregiver is entitled to special education services in her district of residence, and the child's caregiver is authorized to participate in decisionmaking, access the child's record, and intervene on the child's behalf.
III. Medical Care
The obstacles encountered by informal kinship caregivers in the context of public education are equally prevalent with regard to medical treatment. Although this article arose from a study of kinship care children in the schools, it soon became evident that legislation limited to school-related medical consent would ignore what is likely a more pressing problem: the inability of kinship caregivers to obtain medical treatment for their children.
Virtually no aspect of a child's medical treatment can proceed without the consent of a parent or guardian. The Massachusetts Regulations contain hundreds of circumstances requiring such consent prior to medical, dental, or mental health care. A few examples are representative. No long-term care facility may admit, discharge, or transfer a minor patient without the consent of a parent or guardian.38 A parent or legally authorized representative may authorize the release of a child who has been voluntarily admitted to a mental health facility.39 Prior to treatment for substance abuse, the parent or guardian of an unemancipated minor must sign a consent form.40 A group daycare program may not admit a child without obtaining parental consent for emergency treatment and transportation to a hospital along with proof of physical examination within one year prior to admission - barring a statement by the child's parents that such an examination would conflict with their religious beliefs.41 A school nurse may not administer prescription medication without the written authorization of the child's parent or guardian.42
In addition to parental consent requirements for treatment, health care providers often differentiate parents and guardians from other relatives for the purposes of hospital administration and policy. For instance, at Boston's Children's Hospital, parents and guardians may stay with their children twenty-four hours a day, whereas other relatives and non-relatives are subject to limited visiting hours. Parents and guardians receive a yellow photo identification badge to distinguish them from other visitors. Prior to surgery, a parent or guardian must accompany a child to the hospital's Preoperative Clinic or Admitting Office to sign consent forms; if the caregiver accompanying the child is not a parent, she must provide court papers proving legal guardianship.
A caregiver's inability to consent to a child's medical care may have grave results. While Massachusetts law does authorize emergency treatment without parental consent,43 the requirement of parental involvement for routine medical care often precludes early identification of potentially serious health conditions. Moreover, even when medical care providers are aware of a child's illness, they may be forced to wait until a mild and controllable condition becomes life-threatening before acting without parental consent. Emergency treatment is likely to be both less effective and more costly, and the latter is a public concern given the high proportion of kinship care children who are insured through MassHealth. By facilitating preventive medicine, medical consent legislation would save state resources as well as lives.
IV. Current legal options in Massachusetts
Kinship caregivers in Massachusetts have been resourceful in their adaptation of existing mechanisms for delegation of decisionmaking power. Although there has been no legislation in Massachusetts specific to kinship care, relative caregivers who have chosen not to obtain guardianship have employed statutory innovations such as durable power of attorney and standby and emergency guardianship, as well as the equitable alternative of limited guardianship. However, each of the existing options has substantial and in some cases prohibitive shortcomings for many caregivers. This section briefly describes the available options and their limitations.
A. Guardianship
The most obvious legal recourse for caregivers who are frustrated by their lack of legal authority is to acquire legal guardianship. Guardianships facilitate effective childcare while preserving family structures and respecting cultural traditions of extended family support. Guardianship does not require termination of parental rights; rather, it transfers custody of the child from the parent to the guardian. Parents retain the right to visitation as well as the right to consent to adoption of the child, though they cannot vacate the guardianship without court involvement.
Whatever the advantages of guardianships, they are not suited to all kinship care relationships. Many caregivers hope that their situation is only temporary and equate guardianship with permanency. Some are hesitant to relinquish their decisionmaking authority, even if they are unlikely to intervene in a caregiver's day-to-day decisions. Some fear that the initiation of court proceedings may trigger unwanted involvement from an absent parent who may contest the proceeding or backlash from the child's custodial parent. Still others lack the resources or information to pursue legal options. While guardianship may be a viable solution for some kinship caregivers, many informal kinship caregivers choose to remain so for legitimate reasons, and to push unequivocally for formalization may damage an optimal de facto arrangement. Currently, caregivers are forced to decide between legal powerlessness and guardianship, and many choose the latter even when it is undesirable, at the expense of family stability.
Moreover, guardianships may be logistically difficult to obtain, and they impose a substantial burden on both caregivers and the courts. Over the past two decades, there has been a steady rise, amounting to nearly two hundred percent, in the number of guardianship petitions in the Probate and Family Court.44 Although guardianship proceedings entail multiple steps and are fairly complex, many petitions filed in the Probate and Family Court proceed pro se.45 Lack of legal sophistication may lead a caregiver to mistakenly believe she has obtained guardianship and to act with that understanding, creating additional complications and potential legal liability. In short, guardianship is inappropriate for some families and difficult to obtain even when all parties agree.
In light of the significance of the transfer of custodial rights and responsibilities, a guardianship is considered uncontested only if neither parent46 objects to the guardianship petition after sufficient notice. If uncontested guardianships are less than straightforward, a contested guardianship entails an elaborate and often lengthy and expensive trial. The caregiver must demonstrate by clear and convincing evidence that the objecting parent is currently unfit to care for the child - a very high standard.47 Because many kinship caregivers can neither afford nor emotionally endure a guardianship trial, there is a palpable need for a less permanent legal option.
B. Standby and Emergency Guardianship
In response to the growing needs of parents suffering from AIDS and other terminal illnesses, Massachusetts created the categories of standby48 and emergency guardianship49 in 1996. Standby guardianship, often termed "springing guardianship" in other states, allows a parent or legal guardian to designate one or more adults as a health care proxy to act as a child's legal guardian in case of the principal's incapacity.50 If there are two living parents, both must consent to the appointment. The parents must file a petition with the court, which may then appoint the proxy. The proxy's authority is triggered by one of three events: the death, incapacity, or consent of the child's parent or parents.51 Upon commencement of the proxy's authority, the principal and the proxy share parental rights for up to ninety days, at which time the proxy must file for guardianship of the minor.52 If commencement of authority is initiated through the parent's consent, it may be revoked by the parent at any time.53
Emergency guardianship is substantially similar to standby guardianship. The most significant difference is that the designation of an emergency guardian need not be judicially approved.54 As with standby guardianship, a parent may not appoint an emergency guardian if another parent or legal guardian is willing to care for the child.55 The appointment of the proxy becomes effective upon the date of execution and is valid for up to sixty days.56 A parent may revoke or amend the appointment by notifying all necessary parties.57 An emergency proxy, unlike a standby proxy, may not act as guardian of the estate of the minor.58
Standby and emergency guardianships fulfill many of the functions served by medical and educational consent legislation: most importantly, they allow for concurrent exercise of parental authority by a parent and a substitute caregiver. However, they are of limited usefulness in light of their strict time limits. Additionally, they are too difficult to obtain to serve the needs of most kinship caregivers. Even if the time limits were extended, the requirements of court approval and of notification of the non-custodial parent would make standby guardianship impractical for many families.59 On the whole, standby and emergency guardianships are simply not designed to accommodate long-term kinship care arrangements. Many of the most critical aspects of medical and educational consent legislation - most notably, its accessibility to caregivers and its clear explication of the duties and potential liability of parents, caregivers, and medical care providers - are absent from the proxy legislation.
C. Durable power of attorney
Every jurisdiction in the United States has enacted legislation creating some form of durable power of attorney.60 The Uniform Durable Power of Attorney Act,61 enacted by Massachusetts in 1981,62 allows a person to delegate decisionmaking authority to another adult without court notification; that authority remains intact even if the principal suffers subsequent disability or incapacity.63
It is unclear whether the Massachusetts durable power of attorney statute allows for delegation of parental rights and responsibilities. Even if power of attorney extends to health care,64 it may not be the case that a parent can authorize another adult to consent to the medical treatment of a child.65 In any case, the ambiguity of the statute renders it undesirable for common use. Whereas medical and educational consent forms would be readily available and comprehensible with minimal assistance from legal services providers, drafting powers of attorney for individual kinship caregivers would be impractical and, in all likelihood, prohibitively expensive and time-consuming.
D. Limited Guardianship
Massachusetts courts have occasionally established equitable guardianships known as limited guardianships66 for the purpose of school enrollment or medical decisionmaking. Limited guardianship faces many of the same obstacles as durable power of attorney: it is costly and time-consuming, and many caregivers are unaware of its existence or lack the financial and educational resources to pursue it. Moreover, like guardianship, limited guardianship requires the consent of both parents. Finally, because there is no explicit statutory authorization of limited guardianship for decisionmaking purposes,67 the solution is entirely contingent on the judge's amenability to approving the guardianship.
V. Consent Legislation in Massachusetts: A Proposal
Faced with the swiftly climbing numbers of children living in informal kinship care arrangements, many states have begun to address informal caregivers' legal incapacity through legislation. To date, twenty-four jurisdictions have enacted medical consent legislation, and six have enacted educational consent legislation. Massachusetts has thus far declined to follow suit. Given the rapid growth of kinship care over the past decades, the need for legislation in Massachusetts is pressing. A statute designed to assist parents and substitute caregivers should be comprehensive, accessible, and accommodating of parental preference. These goals will best be facilitated through a bill with the following elements:
Parents and guardians should be free to appoint any adult residing with the child as caregiver, regardless of whether the caregiver is a relative.
A legislative proposal to assist kinship caregivers should encompass as many caregiving arrangements as possible. There is no compelling reason to limit potential caregivers to relatives so long as parents are aware of the implications of the legislation and retain the power to rescind authority and override specific decisions. In addition, although this proposal is intended to assist kinship caregivers who reside apart from the children's parents, many children live in multigenerational households, in which caretaking responsibilities are often shared. A statute should therefore allow delegation of authority to such concurrent caregivers as well as substitute caregivers.
Parents and guardians should be free to delegate substantial but limited decisionmaking authority.
Allowing a parent to share decisionmaking authority with a caregiver with whom she may have little regular contact carries one significant risk: if a caregiver may make routine medical and educational decisions without consulting the parent, it is inevitable that her decisions will on occasion diverge from the parent's desires. Such a struggle may endanger the relationship between the caregiver, the parent, and the children. Nevertheless, the limited compromise of parental autonomy seems justifiable insofar as the parent has voluntarily selected a caregiver. Similar disagreements occur in any joint caregiving arrangement, including two-parent homes, and they do not substantially undermine the advantages of consent legislation. The alternative - refusal on the part of health care providers to attend to sick children or the blanket exclusion of caregivers from educational decisions - is in no one's best interest.
Comprehensiveness does not, however, mean boundlessness. Excessive flexibility may in fact discourage delegation of caregiving authority or strain the relationship between parent and caregiver once formed. As a result, legislation should permit delegation of medical and educational authority only. While some parents may wish to share all aspects of parenting - with all of its concomitant rights - with a substitute or concurrent caregiver, most parents will likely be hesitant to surrender authority over legal matters, finances, and other highly personal aspects of childrearing. For those who choose the former route, the legal protections of guardianship proceedings are warranted.
With this balance in mind, delegable medical powers should include the authority to consent to medical, surgical, dental, developmental, and mental health treatment. Moreover, caregivers should be free to exercise parental rights to obtain records and information with regard to health care services and insurance and to consent to the release of records. Because the ramifications of potential disagreement over a child's education are less ominous than in the medical context, parents should be free to share full educational decisionmaking power with their children's designated caregivers.
Parents and guardians should retain all parental rights, including the ability to supersede individual decisions made by the caregiver and the right to revoke the delegation of authority at will.
Caregiver authority should complement rather than supplant parental decisionmaking power. Concurrent authority is preferable for at least three reasons: it encourages cooperation between a parent and caregiver and continued parental involvement in a child's life; it is less objectionable to most parents and therefore more likely to be employed; and it obviates the need for consent from an absent parent.68 The primary impetus for consent legislation is the present inability of parents to share parental responsibilities: transference of parental rights is already available through custody, guardianship, and adoption. Moreover, whereas parents cannot feasibly waive the legal process protecting them and their children in guardianship and adoption petitions so long as they surrender legal rights, the enactment of emergency guardianship in Massachusetts demonstrates the legitimacy of sharing parental power without court involvement.
Consent legislation will be successful only if it is widely employed. While parental autonomy should not be a primary consideration in drafting legislation, it should be considered to the extent that it affects the statute's use: if parents are unable or unwilling to surrender their legal authority, legislation will have accomplished nothing. A Massachusetts statute should therefore preserve the right of both parents to veto individual decisions made by a caregiver69 and to rescind delegation of authority at any time.70
Authorization should be conveyable through any notarized written form meeting specified formal requirements and signed by a parent or guardian, the caregiver, and two witnesses. No court appearance should be necessary.
The kinship caregivers for whom legislative reform is most important have limited time and few financial resources. A complicated, time- and money-intensive solution is therefore unlikely to be of substantial use. The principal advantage of consent legislation over current legal options is that it will enable parents to invest legal authority in their children's designated caregivers without undertaking a substantial legal burden.
The bill should include a straightforward and comprehensible sample form.
As in the majority of states that have enacted legislation, a Massachusetts statute should provide a concise sample form. Although any reasonable written document should be acceptable, offering an example would facilitate swift and legally secure delegation of authority with limited need for outside assistance. These forms should be easily obtainable though support groups, schools, medical facilities, and legal services. The provision of simple, easy-to-read notarized forms would reduce the burden on courts and legal assistance programs and encourage broader use.
Parties who rely on a written delegation of caregiving authority should be exempt from liability absent actual knowledge of a contravening decision by the parent or guardian.
Given that fear of legal liability is a principal factor in the current denial of education and health care to informal kinship care children, the need to relieve from liability those who rely on the delegation of authority should be apparent. Most states that have enacted consent legislation have expressly relieved medical and educational facilities and their employees from liability unless they have actual knowledge that the form is invalid or that the parents have rejected the caregiver's decision or rescinded caregiving authority.71
The sample form should contain detailed notices to school officials and health care providers specifying their responsibilities and liabilities.
Notices to implicated parties regarding their legal obligations and potential liability should be included in the form in straightforward language. Particularly in the case of medical care, the form should unambiguously notify medical care providers of the legal validity of the document in order to avoid costly delays in treatment. With respect to education, clear articulation of districts' responsibilities will lead to swift enrollment, as well as effective integration of both children and caregivers into school administrative processes. The form should also include a concise statement of enrollment policy for kinship care children, addressed to those responsible for making enrollment decisions, to ensure statewide compliance with current law.
Conclusion
The prominence of kinship care does not reflect, as some critics suggest, the denigration of "family values" and responsible parenthood; rather, the creation of extended caregiving networks to support those in need of assistance represents an admirable sacrifice of self-interest, generally in favor of children's interests, on the part of parents and caregivers alike. Legislation designed to assist kinship caregivers in making daily decisions on behalf of their children will serve those ends.
Ultimately, however, educational and medical consent legislation should facilitate effective childcare. Whatever one's opinions of kinship care - whether one favors preservation of the nuclear family, permanency through guardianship or adoption, increased or reduced state intervention in parenting - the lack of political attention to its prominence is unequivocally damaging. There can be no ambiguity surrounding the "best interests of the child" when children are turned away from school or denied medical treatment simply because the authority of their caregivers is not legally recognized. Kinship care is a reality in the commonwealth; it is time for the legislature to acknowledge that reality and afford kinship care families the rights and recognition they deserve.
1. See Nat'l Ass'n of State Bds of Edu. & Pol'y Update No. 16, Grandparents and Other Relatives Raising Children: Implications for Schools 1 (Oct. 1999).[back]
2. This number is up from 61,953 in 1990. U.S. Census Bureau, Census 1990 Summary Tape File 1 (STF-1), P015.[back]
3. U.S. Census Bureau, Census 2000 Summary File 1 (SF1), QT-P28. The precise numbers are 67,781 and 19,721 respectively.[back]
4. Although substitute caregivers are likely to be relatives, many are close family friends. Whether non-relatives are included in the category of kinship caregiver varies by state. For pragmatic reasons, this article deals primarily with relative caregivers. However, much of the analysis pertains to non-relatives as well.[back]
5. Other categories of kinship care include kinship foster care (which arises from state intervention with parenting as a result of abuse or neglect), adoption, and guardianship. The vast majority of kinship caregivers do not formalize their legal statuses. A distinction can also be made among kinship caregivers between multigenerational households, in which the children's parents reside in the same home as the principal caregiver (usually a grandmother), and caregiver-only households, in which the children reside with the caregiver but apart from their parents. In multigenerational households, caretaking responsibilities are often shared, though the caregiver may still be fully or principally responsible for daily decisionmaking on behalf of the child. Although the two family structures share many elements, particularly with respect to financial difficulties and legal resources, this article focuses on those caregivers who assume full and independent responsibility for all aspects of childcare.[back]
6. Twenty-four states have enacted medical consent legislation. They are Arkansas, California, Colorado, Delaware, Washington D.C., Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Texas, Utah, and Virginia. Six states have enacted educational consent legislation: California, Delaware, North Carolina, Ohio, Oklahoma, Connecticut. Legislation varies significantly in form and approach - some states have chosen to adapt traditional mechanisms such as power of attorney to accommodate kinship caregivers, others have created statutes specific to the delegation of educational and medical consent, and a few have begun to explore entirely new categories of caregiving relationships, including concurrent guardianship and co-parent adoption.[back]
7. See, e.g., William Elsbree, Felice Mandell & Mary Adams, Letters, Kith and Kin, Boston Globe, July 15, 2001, Magazine, at 3; Nina M. Silverstein, Letters, Kith and Kin, Boston Globe, July 15, 2001, Magazine, at 3; Martella Wilson-Taylor, Letters, Kith and Kin, Boston Globe, July 15, 2001, Magazine, at 3.[back]
8. Older Americans Act Amendments of 2000, Pub. L. No. 106-501, § 316, 114 Stat. 2226 (2000) (codified at 42 U.S.C. § 3030s).[back]
9. U.S. Dep't of Health and Human Servs., Office of the Assistant Sec'y for Planning and Evaluation Report to the Cong. on Kinship Foster Care (June 2000).[back]
10. American Homeownership and Economic Opportunity Act of 2000, Pub. L. No. 106-569, § 904 114 Stat. 2944 (2000) (codified at 42 U.S.C. § 12745(a)(6)).[back]
11. H.B. 831, 2001 Leg., 2000-2001 Sess.[back]
12. H.B. 830, 2001 Leg., 2000-2001 Sess.[back]
13. See, e.g., Lynne M. Casper & Kenneth R. Bryson, Co-resident Grandparents and Their Grandchildren: Grandparent Maintained Families 13, 16 (U.S. Census Population Division Working Paper No. 26, 1998) (27 percent of children living in grandparent-maintained households are in poverty; two-thirds of children living in grandmother only, no parents present families are in poverty).[back]
14. U.S. Census Bureau, Census 2000 Supplementary Survey Summary Tables, PCT017.[back]
15. U.S. Census Bureau, Census 2000 Supplementary Survey Summary Tables, PCT018.[back]
16. U.S. Census Bureau, Census 2000 Supplementary Survey Summary Tables, PCT019.[back]
17. Other complications may arise with respect to a caregiver's insurance, lease, or public or work-related benefits.[back]
18. See discussion infra Part II.A.[back]
19. For a discussion of the dramatic negative implications of out-of-home care on child development and the significantly higher incidence of foster care children in special education, see Cynthia Godsoe, Caught Between Two Systems: How Exceptional Children in Out-of-Home Care Are Denied Equality in Education, 19 Yale L. & Pol'y Rev. 81 (2000).[back]
20. Mass. Gen. Laws ch. 76, § 15 (2002). Notably, the section on vaccination and immunization contains the following provision: "[I]n the absence of an emergency or epidemic of disease declared by the department of public health, no child whose parent or guardian states in writing that vaccination or immunization conflicts with his sincere religious beliefs shall be required to present said physician's certificate in order to be admitted to school." Id. (emphasis added).[back]
21. Unless specified otherwise, the term parent is assumed to denote a child's biological or adoptive father or mother. See Kerins v. Lima, 425 Mass. 108 (1997). The principal exception is special education, discussed below. Additionally, schools are required to include relative caregivers in federally funded "parental activities": Title I of the federal Elementary and Secondary Education Act (ESEA) specifies that the term "parent" "includes a legal guardian or other person standing in loco parentis (such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for the child's welfare)." 20 U.S.C. 7801(31) (2002).[back]
22. Mass. Gen. Laws ch. 76, § 16 (2002). The statute provides that "the parent, guardian or custodian of a pupil who has not attained [the] age of eighteen . . . may recover from the town. É" Although it does not define custodian, the term generally refers to legal custody. For the purposes of Mass. Gen. Laws ch. 119, §§ 22-51 (2002) (pertaining to the protection and care of children and proceedings against them), for example, "custody" is defined to include the powers "(1) to determine the child's place of abode, medical care and education; (2) to control visits to the child; (3) to consent to enlistments, marriages and other contracts otherwise requiring parental consent." Mass. Gen. Laws ch.. 119, § 21 (2002). A relative caregiver might nevertheless claim a right to recover for the child on the basis of physical custody.[back]
23. Mass. Gen. Laws ch. 71, §34E (2002) ("Each school committee shall, at the request of a parent or guardian of a student, allow such parent or guardian to inspect academic, scholastic, or any other records concerning such student. . . .")[back]
24. Mass. Gen. Laws ch. 76, § 18 (2002) ("No student sixteen years of age or older shall be considered to have permanently left public school unless an administrator of the school which such student last attended has sent notice . . . to the parent or guardian of such student . . . stating that such student and his parent or guardian may meet with the school committee or its designated representatives prior to the student permanently leaving school. É"[back]
25. Mass. Gen. Laws ch. 71, § 56 (2002) ("If any child is found to be suffering from any disease or defect, or if any child is found to have any defect or disability requiring treatment, the school committee shall forthwith notify the parent or guardian of such child.") Other rights reserved to a parent or guardian include approval of voluntary prayer, Mass. Gen. Laws ch. 71, § 1B (2002), and abstention from military exercise, Mass. Gen. Laws ch. 71, § 3 (2002).[back]
26. The Massachusetts Appleseed Center identifies and develops practical solutions to problems that affect underserved groups. Appleseed draws upon the resources of lawyers, community leaders, and others to address the unmet needs of vulnerable groups in Massachusetts, such as low-income homeowners, kinship caregivers, and homeless students. The Center is an affiliate of the Appleseed Foundation, Washington, DC.[back]
27. Mass. Gen. Laws ch. 76 § 5 (2002) ("Every person shall have a right to attend the public schools of the town where he actually resides."). If a child resides in a district for the "special purposes of their attending school," the town may charge tuition. Mass. Gen. Laws ch. 76 § 6 (2002).[back]
28. Massachusetts Dep't of Educ, Advisory Opinion on Residence for School Attendance Purposes 1 (1985).[back]
29. Id. at 2. The position is consistent with the Superior Court's 1977 decision in Anrig v. Joseph (Sup. Ct. No. 18871).[back]
30. The Center interviewed primarily superintendents and assistant superintendents, in addition to administrative assistants, guidance counselors, school principals, and other administrators. The districts were asked: 1) whether they enroll children who are living on a long-term basis with relatives who do not have legal custody or guardianship; 2) if so, whether they require any forms, notarization, or other documentation; and 3) whether the resident caregiver or the legal guardian would be responsible for such tasks as signing school forms, permission slips, and report cards, and handling disciplinary and academic problems.[back]
31. Following are some notable statistics derived from the districts' responses to Appleseed's survey: 52 districts (34%) require custody or guardianship as a prerequisite of enrollment; 29 districts (19%) require a notarized letter or court document conveying legal responsibility for the children to the relative caregiver as a prerequisite of enrollment; 40 districts (26%) assess cases on an individual basis or have no stated policy. The percentage of districts reporting practices consistent with state law varies significantly by DOE region: Central Worcester - 8%; Greater Boston - 14%; Northeast - 29%; Pittsfield - 23%; Southeast - 4%; Springfield - 11%. While deviation from state law may be particularly common in some regions, it is prevalent throughout the commonwealth.[back]
32. See discussion supra Part II.A.[back]
33. Individuals with Disabilities Education Act, Pub. L. No. 105-17, 111 Stat. 37 (1997) (codified at 20 U.S.C. §§ 1400-1500 (2002)).[back]
34. 34 C.F.R. § 300.20(a)(3) (2001).[back]
35. 603 C.M.R. § 28.02(15) (2002).[back]
36. 603 C.M.R. § 28.03(4)(d) (2002).[back]
37. 603 C.M.R. § 28.02(16) (2002).[back]
38. 105 C.M.R. § 150.003 (2002).[back]
39. 104 C.M.R. § 27.09 (2002).[back]
40. 105 C.M.R. § 160.401 (2002).[back]
41. 102 C.M.R. § 7.09(5)(a)(1) (2002).[back]
42. 102 C.M.R. § 3.05 (2002).[back]
43. Mass. Gen. Laws ch. 112, § 12F (2002) provides that "[n]o physician, dentist or hospital shall be held liable for damages for failure to obtain consent of a parent, legal guardian, or other person having custody or control of a minor child . . . to emergency examination and treatment, including blood transfusions, when delay in treatment will endanger the life, limb, or mental well-being of the patient."[back]
44. Pro Se Litigants: The Challenge of the Future, Report of the Massachusetts Probate and Family Court Bench/Bar Conference 10-11.[back]
45. Id.[back]
46. Any child over the age of fourteen must assent as well.[back]
47. Mass. Gen. Laws ch. 201, § 5 (2002). The court requires detailed and specific evidence of unfitness. Custody of a Minor, 377 Mass. 876 (1979).[back]
48. Mass. Gen. Laws ch. 201, § 2B (2002).[back]
49. Mass. Gen. Laws ch. 201, § 2G (2002).[back]
50. Mass. Gen. Laws ch. 201, § 2D (2002).[back]
51. Id.[back]
52. Id.[back]
53. Id. § 2F.[back]
54. The statute requires that the instrument be signed by two witnesses as well as the emergency proxy. Mass. Gen. Laws ch. 201, § 2G (2002).[back]
55. Mass. Gen. Laws ch. 201, § 2G (2002) provides that "[a] parent shall not appoint an emergency proxy of a minor, if the minor has another living parent whose parental rights have not been terminated, whose whereabouts are known and who is willing and able to make and carry out day-to-day child care decisions concerning the minor, unless the nonappointing parent consents to the appointment by signing the written instrument of appointment."[back]
56. Id.[back]
57. Id.[back]
58. Mass. Gen. Laws ch. 201, § 2H (2002).[back]
59. See, e.g., Karen Czapanskiy, Grandparents, Parents and Grandchildren: Actualizing Interdependency in Law, 26 Conn. L. Rev. 1315, 1353 (1994) ("[T]he springing guardianship statutes retain the traditional parens patriae approach of requiring a court order to establish the guardianship. . . .[G]oing to court is not a process that many parents and grandparents willingly engage in, and many will lack the financial resources to gain access in any event. . . . [M]ost parental decisions - other than delegation decisions - are immune from judicial review, in the absence of parental neglect or abuse.")[back]
60. The Uniform Probate Code promulgated the Uniform Durable Power of Attorney Act (UDPAA), which provides for the continuation of power of attorney regardless of the incapacity of the principal. The majority of jurisdictions have adopted the UDPAA. Others have created their own durable power of attorney acts or have limited durable power of attorney to health care. For a detailed breakdown by jurisdiction, see Joyce E. McConnell, Securing the Care of Children in Diverse Families: Building on Trends in Guardianship Reform, 10 Yale J.L. & Feminism 29, 43, n. 64 (1998).[back]
61. Unif. Probate Code § 5-501 (amended 1998), 8 U.L.A. 418 (2001).[back]
62. Mass. Gen. Laws ch. 201B (2002).[back]
63. Unif. Guardianship & Protective Proc. Act § 1-107, 8A U.L.A. 451 (1998).[back]
64. Chapter 201D, Section 16 of the Massachusetts General Laws specifies, "Nothing in this chapter shall invalidate a power of attorney delegating the authority to make health care decisions executed prior to the enactment of this chapter."[back]
65. In general, the common law is ambiguous regarding the enforceability of delegating parental decisionmaking authority through power of attorney. See, e.g., Joyce McConnell, Standby Guardianship: Sharing the Legal Responsibility for Children, 7 Md. J. Contemp. Legal Issues 249, 254 (1995-96).[back]
66. See Massachusetts Executive Office of Elder Affairs, Massachusetts Executive Office of Health & Human Services, & Massachusetts Department of Education, A Resource Guide for Massachusetts' Grandparents Raising their Grandchildren 9 (3d ed. 2001). While there are apparently no reported Massachusetts cases pertaining to limited guardianships for decisionmaking purposes, an analogous category of limited guardianships often arises in the context of mentally incapacitated wards who are competent to make some decisions. In that setting, the court will generally consider a limited guardianship only upon the request of the parties and evidence of special circumstances making it appropriate.[back]
67. There is, however, a statutory category of limited guardianship, equivalent to guardianship of property, with respect to child entertainers. See Mass. Gen. Laws ch. 231, § 85P (2002). S.B. 877 and H.B. 1042, referred to the Joint Committee on the Judiciary in January of 2001, would codify this category. The bill reads: "In the interest of developing self-reliance of a ward or for other good cause, the Court, at the time of appointment or later, on its own motion or on motion of the minor ward or other interested person, may limit the powers of a guardian otherwise granted by this Article and thereby create a limited guardianship. Any limitation on the statutory power of a guardian of a minor must be endorsed on the guardian's letters or, in the case of a guardian by parental appointment, must be reflected in letters that are issued at the time any limitation is imposed. Following the same procedure, additional powers may be granted or existing powers may be withdrawn." However, statutory authorization will not ameliorate the difficulties involved in securing a court-approved guardianship.[back]
68. Given judicial protections of parental authority, any parent whose rights had not been terminated would retain the right to object to a decision by a caregiver. However, the question of whether a non-custodial and inactive parent is entitled to notice or, indeed, must affirmatively consent to caregiver authorization is more controversial. Today, many families choose not to formalize their caregiving arrangements because a guardianship petition might rekindle a relationship with a distant and potentially disruptive or even abusive absent parent. It may be possible to structure legislation such that a single custodial parent may unilaterally authorize a caregiver to make decisions on behalf of her child, with the provision that a non-custodial parent could intervene on a case-by-case basis. Because there would be no need to alert an absent parent to the arrangement, confrontation would be unlikely. More radically, the statute might require a non-custodial parent to challenge a delegation in court. Because delegation of power already awarded to a custodial parent would not further interfere with the parental rights of a non-custodial parent, such an arrangement might be legally sustainable. Where so doing furthered the best interests of her children, a parent would be entitled to share with a caregiver those rights already conferred on her by the court in the course of custody proceedings.[back]
69. This provision would not affect a school or health care provider's liability without actual knowledge of a contravening parental decision or revocation of consent. While there is no apparent need for a set duration of authorization, a delegating parent should be entitled to revoke consent at will.[back]
70. The preservation of parental veto power, particularly by a non-consenting parent, is legally necessary as well as socially desirable. States must generally demonstrate parental unfitness to usurp parental decisionmaking. See, e.g. Troxel v. Granville, 530 U.S. 57, 66 (2000) ("In light of . . . extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.")[back]
71. See, e.g., D.C. Code Ann. § 16-4901 (e) (2001) (health care provider is relieved of liability for treating a minor without legal consent "if a reasonable and prudent health care professional would have relied on the written instrument under the same or similar circumstances."); Cal. Fam. Code § 6550(d) (2002); Del. Code. Ann. tit. 13, § 708(c) (2001).[back]