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Extending kinship guardianship assistance. In re Jaquan L., 2020 N.Y. Slip Op. 213 (N.Y. App. Div. 2020)


Kinship guardianship assistance payments in New York, often referred to as KinGap, are financial subsidies provided to relative caregivers who assume legal guardianship of children in their care. These payments are intended to support the guardians in meeting the needs of the children. Some examples of what the payments can be used for included:

  • Housing expenses such as rent or mortgage payments, utilities, property taxes, and other housing-related costs to ensure stable and safe living conditions for the children.
  • Food and nutrition such as purchasing groceries, meals, and other food items to meet the nutritional needs of the children.
  • Clothing and personal care items such as purchasing clothing, shoes, toiletries, and other personal care items for the children.
  • Medical and health-related expenses such as paying for health insurance premiums, co-pays, medications, medical supplies, and other healthcare needs of the children.
  • Educational expenses such as covering school fees, supplies, uniforms, tutoring services, and other educational expenses to support the children’s academic success.
  • Childcare and supervision such as paying for childcare services, afterschool programs, recreational activities, and other supervision needs of the children.
  • Transportation such as paying for public transit fares, fuel, vehicle maintenance, and insurance, to ensure the children have access to school, medical appointments, and other essential services.

The related statute governing Kinship Guardianship Assistance Payments in New York is Social Services Law § 458-b. This statute outlines the eligibility criteria, requirements, and procedures for kinship guardianship assistance programs in the state. It establishes the framework for agreements between caregivers and the Administration for Children’s Services (ACS) regarding the provision of financial assistance and support services for children under kinship guardianship.

In In re Jaquan L., 2020 N.Y. Slip Op. 213 (N.Y. App. Div. 2020), the court addressed a motion to extend kinship guardianship assistance payments for two children until they reach the age of 21.

Background Facts
The case involved a grandmother, Pearl L., who petitioned for kinship guardianship assistance payments for her two grandchildren under the KinGap. Pursuant to Social Services Law § 458-b, the grandmother and the ACS were required to enter into agreements providing monthly subsidies for each child. These subsidies were initially provided until the children turned 18 or 21, depending on their age at the time of contract execution.

When the grandmother executed the contract, her grandchildren were under 16 years old, allowing subsidies until age 18. However, legislative amendments expanded subsidies’ availability to children until age 21 under certain conditions, regardless of their age at contract execution. Subsequently, the grandmother moved to extend subsidies for both children until they reach 21.

Whether the amended statute, expanding subsidies’ duration to age 21, should be applied retroactively to the grandmother’s case. This question of retroactive application carried significant implications for the children’s financial support and the family’s stability.

The court reversed the Family Court’s decision, granting the motion to extend kinship guardianship assistance payments until the children reach 21. The court found that the amended statute, while silent on retroactivity, was remedial in nature, aimed at rectifying disparities and promoting children’s welfare. It concluded that the statute’s retroactive application was justified to fulfill its intended purpose effectively.

The court’s decision hinged on the legislative intent behind the amended statute and its remedial nature. Analyzing the legislative history, the court determined that the statute aimed to remove disparities between foster/adoptive parents and guardians, ensuring equal treatment for all children under kinship care arrangements. Moreover, the statute’s silence on retroactivity did not preclude its application, especially considering the urgency conveyed in its legislative history.

Additionally, the court rejected arguments regarding contractual rights and jurisdiction, emphasizing the broader public interest in promoting children’s welfare and achieving equitable outcomes. It underscored that retroactive application of the statute aligned with its remedial purpose and would prevent absurd legal conclusions resulting from disparities in the original law.

The court’s decision to retroactively apply the amended statute represents a significant step towards ensuring equitable treatment for children under kinship guardianship arrangements. By extending subsidies until age 21, the court prioritized children’s welfare and addressed disparities in the original law. This ruling underscores the importance of legislative reform in promoting fairness and supporting vulnerable children and families.

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