Evolutionary Theory and Kinship Foster Care: An Initial Test of Two Hypotheses

• Author: David J. Herring - Jeffrey J. Shook - Sara GoodKing - Kevin K. Kim
• Position: Professor of Law at the University of Pittsburgh School of Law - Assistant Professor at the University of Pittsburgh School of Social Work - Assistant Professor at the University of Pittsburgh School of Social Work - Associate Professor at the University of Pittsburgh School of Education
• Pages: 291-318

EVOLUTIONARY THEORY AND KINSHIP FOSTER CARE:

AN INITIAL TEST OF TWO HYPOTHESES

DAVID J. HERRING, J EFFREY J. SHOOK, SARA GOODKIND & KEVIN H.

KIM1

I. INTRODUCTION

Public child welfare agencies regularly recruit foster children’s

relatives for service as foster parents.1 A significant percentag e of foster

children no w live with kin. As of September 30, 2006, 24% of children in

placement in the United States were l iving with kin fos ter parents,2 and

“kin” is regularly defined to include non-genet ically related individual s

who had established a relations hip with the child prior to his or her

placement in foster care (e.g. , family friend, neighbo r).3 Excluding

children who were placed in group ho mes, institutions, and other non-

family home settings, over 32% of children in foster home placemen ts

lived with kin fost er parents.4

Federal law encourages and supports the use of ki n as foster parents.

For more than t en years, the Uni ted States D epartment of Health and

Human S ervices has sup ported demonstration projects to address and

Copyright ©2009, David J . Herring, Jeffrey J. Shook, Sara Goodkin d, & Kevin H. Kim

1 David J. Herring is a Profes sor of Law at th e University of Pittsbu rgh School of Law,

Jeffrey J. Shook is an Assistant Professor at the University of Pittsburgh School of Social

Work, Sara Goodkind is an Assistant Professor at the University of Pittsburgh School of

Social Work , and K evin H. K im is an Associate Professor at the University of Pittsbu rgh

School of Education. The authors are very grateful for the contributions, support, and

guidance generously provid ed by Richard D elgado, Owen Jones, Karen Kolivoski, Justin

Park, Ryan Pohlig, and Lu-in Wang.

1 Ro b Geen, The Evolut ion of Kinship Car e Policy and P ractice, 14 THE FUTURE OF

CHILDREN 131, 132 (2004).

2 CHILDREN’S BUREAU, U.S. DEP’T O F HEALTH & HUMAN SERVS., THE AFCARS

REPORT – PRELIMINARY FY 2006 ESTIMATES AS OF JANUARY 2008 (14) (2008),

http://www.acf.hhs. gov/pro grams/cb/stats_research/afcars/tar/report14.htm.

3 See Geen, supra note 1, at 13 2.

4 Cf. CHILDREN’S BUREAU , supra note 2. The placement settings (as of September

2006) of children in foster care, discounting group homes, institutio ns, and other non-family

settings, was 3% in pre-adoptive homes, 24% in foster family homes, and 5% in trial

homes. Id.

292 CAPITAL UNIV ERSITY LAW REVIEW [38:291

improve kinship care.5 By enacting w elfare reform leg islation, Congress

expressly encouraged stat es to give preference to relatives when deciding

where to plac e a particular child.6 In addit ion, C ongress effectively

expressed a prefe rence for kin placements in the Adoption and Safe

Families Act,7 excluding them from time require ments for seeki ng

termination of parental rights.8 Congress views t hese placements as

desirable and stable, requiring no change to achieve permanency for the

affected child.9 Most recently, the federal Fostering Connection s t o

Success and In creasing Adoption Act10 requires states to identify all

relatives when children are removed from parental custody, and to inform

the relatives of their option to become foster parents and about availab le

support services. 11

Evolutionary theory provides a conceptual framework for examining

and assessing public p olicies and laws that pro mote kinship fos ter care.12

The evolutionary concepts of i nclusive fitness and degree of relatedness

support a prediction that kin foster p arents will tend to treat foster children

more favorably than non-kin foster parents.13 These concepts begin with

the widely accep ted premise that an i ndividual benefits not onl y directly

from his or her own reproductive success, but also indi rectly from the

reproductive success of gen etically related others th rough the passage of

common genetic material t o future generations.14 Because of the in direct

benefits realized from the reproductive success of kin, natural selection

5 See Rob Geen & Jill Duerr Berrick, Kinship Care: An Evolving Service Delivery

Option, 24 CHILD. & YOUTH SERVI CES REV. 1, 3 (2002) (discussing feder al an d state

policies supporting kinship care).

6 Id. at 3–4.

7 42 U.S.C. § 675(5)(E)(i) (2 006).

8 See id.

9 See Geen & Berrick, supra n ote 5, at 4.

10 Fostering Connections to Success and Increasing Ad options Act of 2008, Pub . L. No.

110-351, § 103, 122 Stat. 3956 , 3956.

11 Id.

12 Cf. David J. Herring , Kinship Foster Care: Implication s of Behavioral Biology

Research, 56 BUFF. L. REV. 495, 495 –96 (2008) (prop osing that beh avioral biology

research on kinship relationships and expected levels of parental investment provides a

conceptual framework for an alyzing kinship foster care).

13 Id. at 520–21.

14 See id. at 521 (citing William D. Hamilton, The Geneti cal Evolution of Social

Behavior, 7 J. THEORETICAL BIOLOGY 1, 1 6 (1964)).