On Jan. 23, the Department of Health and Human Services issued a waiver permitting federally funded South Carolina foster care agencies to discriminate on the basis of religion.

In explaining HHS’s decision related to Miracle Hill Ministries, Lynn Johnson, assistant secretary for the Administration for Children and Families within HHS, cited the state’s well documented need for more foster care providers. According to Johnson, “This decision preserves all of the foster care agencies currently available for children in South Carolina by ensuring faith-based organizations can continue to serve this vulnerable population. It protects minors who are in need of as many options as possible for being placed in loving foster families.”

On the surface, Secretary Johnson’s explanation appears to offer a compelling argument. The problem is it is not true. South Carolina does need more foster care providers, but there are better and less constitutionally problematic ways to achieve this goal. In particular, the state should address the current policies and procedures reducing the availability of “Kinship Care.”

The term “Kinship Care” refers to the placement of foster children with relatives rather than strangers. Most child welfare experts believe this form of foster care is highly beneficial and should be considered in the majority of child welfare placements.

Many states agree with this assessment including South Carolina. However, although South Carolina recognizes the benefits of Kinship Care, we have done little to increase its availability. Currently, only 6 percent of children in the custody of South Carolina DSS are in licensed Kinship Care. By comparison, North Carolina and Georgia have Kinship Care rates of 27 percent and 29 percent, and in Nevada 49 percent of state-removed children are in Kinship Care. This difference stems from the fact that although South Carolina law states that “Relatives are given preference in placement options provided such placement is in the best interest of the child(ren),” there is no enforcement mechanism to this provision. Neither state law nor DSS policy requires caseworkers to actively search for Kinship Caregivers or penalizes them if they don’t. It is left to DSS’s discretion to decide how diligently to look for kin and whether to place children with relatives at all.

A second obstacle to increasing Kinship Care in South Carolina is the practice of Kinship Diversion. This process allows children to be “diverted” to family members without ever being taken into state custody. Diversion circumvents the need for foster care waivers, but it leaves these relative care providers ineligible for the level of financial support licensed foster care providers receive. Consequently, many of these eligible relatives find it financially difficult or even impossible to assume custody. However, if South Carolina made it easier for such family members to become licensed foster care givers this financial discrepancy would be alleviated.

Changing South Carolina’s policy on Kinship Care offers a viable solution to the state’s foster care provider shortage.

Marcia Zug is a family law professor at the University of South Carolina School of Law. Kendall Eoute is a second-year law student at the University of South Carolina School of Law with a concentration in children’s law.