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the
SUBSIDIZED
LEGAL
GUARDIANSHIP
A PERMANENCY PLANNING
OPTION STUDY FOR CHILDREN
PLACED IN KINSHIP CARE
PRINCIPAL INVESTIGATORS:
SHARON I.. MCDANIEL. MPA
ANTHONY R. Sosso. J.D.
A
SOCOND
CHANCE
INC.
ACKNOWLEDGMENTS
This report was the first step in a project undertaken by A Second Chance, Inc., a private,
not-for-profit, kinship care agency, located in Pittsburgh, Pennsylvania. A Second Chance embraces
the importance of kin as caregivers for children in out-of-home placement. The agency strives to
meet the needs of its kinship clients, and has embarked on a project to explore new ways of bringing
permanence to children and families languishing in the child welfare system.
Subsidized legal guardianship is one of the innovative ideas being used by child-care
providers across the country. We discovered many individuals in our research who have dedicated
themselves to the effective use of subsidized guardianship in their communities.
We wish to extend our deepest appreciation to those who shared their time, knowledge, and
compassion with us.
Sherrie Stears, Alaska Dept. of Health and Social Services, Juneau, Alaska
Mary Hayes, Kathee Saito and Luvirda Carter, Los Angeles County Dept.
of Children and Family Services, Los Angeles, California
Susan Taylor and Ray Gallagher, Orange County Social Services Agency,
Orange County, California
Carol Wahlgren and Sharen Ford, Colorado Dept. of Human Services,
Denver, Colorado
Lori Carlson, Denver County Dept. of Social Services, Denver, Colorado
John Fluke and Carol Harper, American Humane Association,
Children's Division, Englewood, Colorado
Kathy Goldsmith, Delaware Dept. of Services for Children, Youth and
Their Families, Wilmington, Delaware
Merton Chinen, James Arrowood, and Keith Nagai, Hawaii Dept. of
Human Services, Honolulu, Hawaii
Kenneth Enright, Esq., Hawaii Dept. of the Attorney General, Honolulu, Hawaii
Dennis Arakaki, Member, Hawaii House of Representatives, Honolulu, Hawaii
Linda Thomas, Queen Lili'uokalani Children's Center, Honolulu, Hawaii
Linda Santos, The Casey Family Program, Honolulu, Hawaii
Jeff Berman, Jackie Nottingham and Mary Anne Krenn, Illinois
Dept. of Children and Family Services, Springfield, Illinois
Mark Testa, University of Chicago, Chicago, Illinois
Leslie Shaw and Melinda Wood, Human Service Technologies, Chicago, Illinois
Nancy Rodriguez, Kathy D'Entremont and Debbie Winguard,
Massachusetts Dept. of Social Services
Margaret Bitz, Mary Dyer and Beth Tallon, Esq., Nebraska Dept. of
Social Services, Lincoln, Nebraska
Jan Stanley and Peg Tassets, New Mexico Dept. of Children, Youth and
Families, Santa Fe, New Mexico
Robert Wilson, William Bell and Janet Hassan, City of New York Office of
Direct Child and Family Services, New York, New York
Duane Jenner, South Dakota Dept. of Social Services
Betty Cena, Jim Mowrey, Sharon Braden and Scott Minnock, Washington
Dept. of Children and Family Services, Olympia, Washington
We thank them for meeting with us, taking our persistent telephone calls and providing us
with the information included in this report.
The staff of A Second Chance was also instrumental in the production of this report. Our
thanks go out to the staff members who were called upon to edit, type, copy and assemble, including:
Sara Adams; Lori Brenner; Cathy DiNardo; Beth Grimes; Brian Ulishney; and Diane Walker. We
also extend a very special thank you to Robyn Grover, who served as our travel organizer, text
designer and comic relief.
Sharon L. McDaniel
Anthony R. Sosso
TABLE OF CONTENTS
Executive Summary
1
Chapter 1 - The Challenges of Permanency
Planning and the Use of Subsidized Legal
Guardianship as a Tool in the Battle
23
Chapter 2 - The Research
27
Chapter 3 - State by State Program Profiles
Alaska
31
Hawaii
36
Massachusetts
42
Nebraska
46
South Dakota
51
Washington
53
California
57
Colorado
61
Illinois
63
New Mexico
70
Chapter 4 - Analysis of the State Programs
73
Bibliography
87
Appendices
89
Appendix A - Research Vehicle
Appendix B - State Statutes and Regulations
Alaska - Alaska Admin. Code, 7 AAC 53.200 et. seq.,
Dept. of Health & Soc. Services Regs. 3.26
Hawaii - Child Protective Act, HRS 587.73, Dept. of
Health & Human Services Regs. 17-835-1 et.,
seq., and 17-945-20 et. seq.
Massachusetts - Dept. of Social Services Regs.
110 CMR 7.300 to 7.303
Nebraska - Nebraska Dept. of Social Services Manual,
390 NAC 6-004 and 6-005
Illinois - Illinois Administrative Code, Title 89,
Sections 302.400 and 305,40
New Mexico - New Mexico Children's Code, Sections
32A-4-31 to 32A-4-32; and Sections 32A-5-43
to 32A-5-43 to 32A-5-45
Appendix C - Comparison Chart of State Subsidized
Legal Guardianship Programs
Appendix D - Assisted Guardianship Program of the State of
Delaware Pursuant to Title IV-E Waiver Proposal
1
Executive Summary
According to the Child Welfare League of America, reports of child abuse and neglect across the
United States have increased by over 100% in the past ten years.
During this same time, it has been reported that while the number of children entering out-of-home
care has increased, the number of available traditional foster care providers has decreased. Because
of this, on a national level, child welfare agencies have found themselves relying on what was once an
"informal" child care arrangement by families (Kinship Care) to meet their ongoing placement needs.
In fact, it is estimated that one-half of the children in out-of-home care reside in kinship care
placements, as states have utilized placement with relatives to address the needs of foster children.
As the number of children entering care increases, SO does the number of children who remain in
long-term foster care.
Many of these children in both kin and non-kin placements have no hope of obtaining a permanent
home and will remain in care until they reach the age of majority. With the large number of children
growing out of the system without permanent homes, it is increasingly important that new and
creative alternatives be examined to address the needs of this population of children.
Child welfare agencies across the country historically have relied on reunification and adoption as the
means of achieving permanency planning. However, problems of poverty, teenage pregnancy and
parental drug use have impeded efforts towards reunification. At the same time, due to the use of
kinship placements, adoptions are generally not deemed appropriate within this population, due to
the pre-existing family relationship. For these children, where reunification and adoption are not
possible, permanency, as it has been traditionally defined, cannot occur.
This project explores the use of Subsidized Legal Guardianship as a new permanency planning option
for children in foster care, particularly its application for children in kinship care. It examines how
ten states with reported programs of Subsidized Legal Guardianship operate and achieve
permanency through this option.
This report analyzes the strengths and limitations of each state's program.
Ten states - Alaska, California, Hawaii, Illinois, Massachusetts, Nebraska, New Mexico, South
Dakota and Washington-have been studied by the authors. Agencies in each state were contacted
and/or visited in person. Public administrators and non-profit human service agencies were
interviewed, and information pertaining to laws, policies and procedures was collected.
These profiles are intended to offer valuable information to other states considering the use of
Subsidized Legal Guardianship as a permanency planning option. It is important to note that
continuing remarks should be made about this project. Subsidized Legal Guardianship, like all
elements of the child welfare system, is an ever-changing concept. Our research was conducted
during the first six months of 1996; each respective program or its components may have changed
since that time. For example, just as this report was about to be published, the State of Delaware
received approval from the U.S. Department of Health and Human Services for the use of Title IV-E
funds for subsidized guardianship as a result of that state's submission of a welfare reform
demonstration project. At present, Illinois is awaiting a decision concerning their proposed waiver
project for the use of IV-E funding in legal guardianship cases. This approval could drastically alter
the way Illinois deals with guardianship as a permanency planning option.
I
Kinship Care: A Natural Bridge, Child Welfare League of America, Washington, DC (1994), Chapter 1.
2
THE RESEARCH/DATA COLLECTION
The first step in our research was to identify states with Subsidized Legal Guardianship programs. It
had been reported by various sources that there were ten such states. Policymakers, administrators,
managers and caseworkers in each state were identified and contacted by telephone to obtain basic
information about their state's program.
Public Agency Personnel:
Policymakers - state executives, policymakers and other groups who have consistently assisted in
the development of policies.
Administrators - persons charged with the implementation and/or interpretation of policies to be
carried out by others.
Managers - persons responsible for program operations, fiscal control, supervision in regional
offices and county departments.
Permanency Planning Teams - persons responsible for assisting and supervising casework staff
with making permanency planning recommendations for children in care.
Caseworkers - persons responsible for assessing the appropriateness of placements, preparing case
plans and working with children and families towards permanency planning.
Management Information System Specialists - persons in charge of tracking clients and information
pertinent to statistical findings.
Private Agency Personnel:
Executive Directors - persons in charge of creating internal policies, decision-making and the
execution of policies.
Program Directors - persons responsible for carrying out the objectives of the programs and the
supervision of staff.
Supervising/Casework Staff - persons responsible for the day-to-day work with children and
families.
The information collected by these sources included: legislation, policy directives, handbooks,
research reports, regulations, and internal program outlines and policy recommendations.
Information was gathered prior to, during, and after our on-site visits.
On-site visits were made to six of the ten states after our collection of preliminary data:
California; Hawaii; Massachusetts; Colorado; Illinois; Nebraska.
Telephone contacts were made with the remaining states.
Information was sought in four basic areas:
1. Eligibility for the program;
2. Policies and procedures;
3. Amount and sources of the subsidy; and
4. Statistics on the program.
3
1. Eligibility for the Program - The researchers sought to examine the criteria for the program and
to determine under what circumstances one would be referred for Subsidized Legal
Guardianship.
2. Policies and Procedures - The "nuts and bolts" of the area's programs were explored in order to
examine the policies and procedures outlined (i.e. the "how to").
3. Amount and Sources of the Subsidy - Here we examined how the subsidy amount was determined
and compared it to the foster care rates. We also analyzed the criteria which establishes subsidy
eligibility.
4. Statistics on the Program - Information was gathered to determine how many children from each
respective state were enrolled in Subsidized Legal Guardianship programs and compared such
data to children with other permanency goals. Also, the financial cost and cost-savings associated
with Subsidized Legal Guardianship program were investigated.
STATE-BY-STATE PROGRAM PROFILES
We set forth below our research from each of the ten states reported to have programs of
Subsidized Legal Guardianship. We learned through our data collection that only six had legal
guardianship program fully subsidized by the state (Alaska, Hawaii, Massachusetts, Nebraska, South
Dakota and Washington). The other four remaining states either had programs which were either
not state-subsidized, not truly guardianship programs, or actually had no such programs.
ALASKA
Alaska operates a state-administered child welfare system through its Department of Health and
Human Services. There are three regional offices located throughout the state.
Legal guardianship is considered a possible permanent plan once both reunification and adoption
have been ruled out.
1. Eligibility:
A child must be in the custody of the department.
A child must be considered "hard-to-place" or having special needs (such children have been
defined as being minors who will not likely be adopted because of physical or mental disability;
emotional disturbance; possession of a high risk of physical or mental disease; their age;
membership in a sibling group; racial or ethnic factors; or any combination of these conditions).
Guardianship is generally limited to children over the age of ten. However, consideration for a
child under ten can occur if : (1) the child is part of a sibling group where at least one sibling is
over age ten and the goal for the children is to remain together; (2) the child is seriously disabled;
or (3) when there are compelling cultural reasons which make guardianship the preferred choice
over other permanency options.
2. Policies and Procedures:
A permanency planning team must first change the case goal to guardianship. It is at this time
that the issue of subsidy is addressed.
A guardianship homestudy is prepared by the Caseworker of Record.
4
A petition is filed by a lawyer from the Attorney General's office who represents the guardianship
family through the time of their appointment.
Once a Court Order is signed, Division of Family Youth Services (DFYS) closes case.
The subsidy application is renewed annually.
3. Amount and Source of the Subsidy:
The amount of the subsidy varies in each placement according to the needs of the child and the
circumstances of the guardian(s). However, the amount of the subsidy cannot be greater than the
foster care amount previously paid to the family.
The subsidy does not carry any Medicaid benefits, even if the child was previously IV-E eligible.
Special consideration is given to children who qualify for Social Security benefits based on
handicaps and the income of the guardian(s).
Modifications can be made to reflect any additional needs of the child or changes in the
guardian's circumstances over time. The subsidy will cease when there is a change in placement;
when the child reaches the age of 18; or when the guardian(s) fails to submit an annual subsidy
agreement form.
4. Statistics:
1994
1995
Children in Kinship Care
401
349
Other Foster Care
848
845
Adoption
480
568
Subsidized Legal Guardianship
127
160
*
Alaska has experienced over a 99% increase in the number of reported cases of maltreatment to children between
1989 and 1995 (7,876 cases reported in 1989; 15,706 in 1995).
HAWAII
Hawaii has a state-administered system of child welfare services, which operates through its
Department of Human Services. The state has developed various permanency planning options in
addition to the more traditional ones used in other states. They include:
1. Long-term foster care;
2. Legal guardianship (both subsidized and non-subsidized);
3. Adoption;
4. "Permanent Custodians" (PC) which has characteristics of foster care, adoption
and guardianship.
1. Eligibility:
This state is very concerned with insuring that all parties understand that the assumption of
guardianship is intended to be the permanent plan for the child, rather than a temporary one
which birth parents can revoke if and when they are able.
Therefore, a permanency planning hearing must be held at which time permanent custody is
awarded, typically, to the Department. This hearing also serves as the termination of parental
rights proceeding.
5
Once parental rights have been terminated a guardian can be named if :
A child has been in the system for eighteen months before being considered for guardianship.
Reunification and adoption have been ruled out as permanency options.
No age limit exists for the child to be considered.
2. Policies and Procedures:
After eighteen months in out-of-home care, there must be a goal change to guardianship.
An award of permanent custody to the Department is ordered and parental rights are terminated.
Generally, the permanent planning hearing and the guardianship proceeding are consolidated
into one proceeding.
The guardian completes an application for financial assistance on behalf of the child. This
information is submitted prior to the guardianship hearing.
Annual recertification is mandatory.
The case is closed to the system.
The guardians are allowed to move out of the state with the child and still receive assistance from
the state, as well as medical care.
3. Amount and Sources of the Subsidy:
The assistance provided to guardians is fully financed by the state, or by private foundations in
some cases. No federal dollars are used.
The amount of assistance is automatically set at the foster care board rate. Additional funds are
also available for special circumstances, such as clothing needs, transportation costs to school or
medical facilitates, and medical care, when other resources are unavailable.
The guardian must agree to report any changes which affect the placement, such as the child is no
longer residing with them, or a change of address. Payments can continue until the child reaches
eighteen years of age unless the child is still in high school or attending an accredited college. If
enrolled full-time in college, benefits can continue until age twenty-two.
4. Statistics:
Hawaii's Department of Human Services currently has some 2,100 children in its care. Almost
half (48%) are in Kinship placement, as evidenced by these numbers:
Foster Care
1,470
Permanent Assistance
200
(PC and Guardianship)
Adoption
200
(Federally-subsidized)
Adoption
200
(State-subsidized)
Higher Education Support
30
TOTAL
2,100
It is estimated that approximately 6% of the total state budget is spent on permanent assistance to
adoptive parents, PC's and legal guardians.
6
MASSACHUSETTS
The Department of Social Services for Massachusetts administers the child welfare services for the
state. The Department operates with one central, four regional and twenty-four area offices.
Massachusetts has had a program of state-subsidized Legal Guardianship for over ten years.
The Subsidized Legal Guardianship program has the support both of Department caseworkers, who
appreciate the need for another permanency planning option, and caregivers (particularly relative
caregivers), who are unable or unwilling to adopt the children in their care for economic, cultural or
physical reasons.
Guardianship is considered only after reunification and adoption have been ruled out.
1. Eligibility:
The supervisor and caseworker determine that the permanency planning goal for the child is not
reunification nor can adoption be achieved.
The child must have been in placement in the proposed guardian's home for one year.
The child must be at least twelve years old, unless he/she is part of a sibling group, or if
guardianship has been determined to be the permanency option in the best interest of that child.
Parental consent is attempted; however, if not obtained, the guardianship can proceed.
2. Policies and Procedures:
Once the caseworker has determined the eligibility of the placement, he/she requests a clinical and
legal conference to review the appropriateness of guardianship as the plan for the child.
If the conference(s) results in a recommendation for guardianship, a Guardianship Referral
Form, an application for Subsidized Guardianship, the Guardianship Plan and a certified copy of
the child's birth certificate will be prepared.
The Department attorney prepares the guardianship petition and represents both the guardians
and the Department in Probate Court for the guardianship hearing. Following the approval of
the guardianship, visits with the birth parents must be arranged by the guardians. The placement
is reviewed by the caseworker six weeks after the award of guardianship to determine its
stability.
After this, the caseworker formally terminates Department involvement, except for an annual
renewal of the subsidizing agreement.
3. Amount and Sources of Subsidy:
Massachusetts pays the same amount of support to guardians as it does to foster parents. This
subsidy is entirely funded by the state, with no federal reimbursement. Annual renewal of the
subsidy is required. This consists of the completion of the Department's subsidy re-application
by the guardian, which is mailed to them by the Department.
The subsidy is terminated if the guardianship is terminated, if the child is no longer in the
guardianship home, or if the guardians fail to submit the annual subsidy re-application.
7
4. Statistics:
It is estimated that Massachusetts' Subsidy Department, which manages the subsidy payments to
adoptive parents and legal guardians, provides support to over 7,500 children.
Subsidized Guardianship
1,500
Subsidized Adoption
6,000
TOTAL
7,500
Note: Definitive statistics on the percentage of the cases which were kinship placements have not been tracked, but
it is estimated by the state that kinship placements account for about one-half of its adoption cases, and at least
one-fourth of its guardianship cases.
NEBRASKA
As a state-administered system, Nebraska has been subsidizing guardianship placements since the
early 1980's. The state's policies reflects its desire to insure that the financial barriers and/or
costs associated with a child's needs do not prevent the appointment of a guardian as the
preferred permanency alternative to long-term foster care.
Legal guardianship is considered a long-term, legal commitment between a child and the guardian
family, an arrangement which also allows for contact between the child in care and his/her
biological family. Legal guardianship becomes the alternative for a child after other permanency
options have been ruled out, or if this option is deemed to be in the child's best interests.
1. Eligibility:
The child has a positive relationship with the guardian.
home. The child has experienced at least six months of successful living in the prospective guardian's
Reunification and adoption have been ruled out.
The child is be age twelve or older, unless he/she is part of a sibling group to be placed together,
or child. has sufficient attachment to the proposed guardian, who is unable or unwilling to adopt the
The guardians are be willing and able to support the child financially, or if necessary, a
guardianship subsidy is pursued by the caseworker.
Prospective guardians are chosen in the following order of preference:
1. A relative of a child;
2. The child's foster parent;
3. Another party with whom the child has an existing
relationship;
4. A new foster parent committed to the guardianship plan.
8
The child's consent is required if he/she is over the age of fourteen. If the child is under fourteen,
their consent is sought, and any objections are discussed with the child, guardian ad litem, and
the prospective guardian. Parental consent is also sought in every case, but the Department can
proceed without it, if this is arrangement is believed to be in the best interests of the child.
2. Policies and Procedures:
A caseworker considering legal guardianship for a child will hold a case conference with their
immediate supervisor and often a permanency planning reviewer.
If guardianship is determined to be in the best interest of the child, the caseworker proceeds with
the goal plan.
A subsidy agreement is negotiated prior to the guardianship hearing. Following the signing of this
agreement, the caseworker prepares a Guardianship Packet for the Court. The Guardianship
Packet is sent to the prospective guardian's attorney, who proceeds to prepare and present the
guardianship petition to the Probate Court.
3. Amount and Source of the Subsidy:
The state requires guardians to utilize all resources, benefits and programs available to them to
care for the child, including private medical insurance, child support, and Aid the Families for
Dependent Children (AFDC) (if a relative), before using the guardianship subsidy.
The subsidy is 100% state-funded, and the monthly maintenance rate cannot be higher than the
foster care rate. The amount of maintenance support, as with foster care support, is determined
by the level of need of the child, which varies according to his/her age.
The subsidy will continue until the family no longer needs the assistance; the child reaches the age
of majority (which is 19 in Nebraska); or the guardianship or care for the child ceases.
4. Statistics
Nebraska's Department of Social Service currently has approximately 4,200 children in its
custody, most of whom have the goal of reunification. Recent statistics indicate that
approximately two-hundred and ninety-one children are placed in the homes of guardians
receiving state subsidy. This number has grown 411% since 1990. It is believed that about ten-
twenty guardianships disrupt each year. These children return to DSS custody and a new
placement is sought.
An additional 1,034 children are in adoptive homes which receive State and Federal adoption
subsidies.
9
SOUTH DAKOTA
South Dakota's Department of Social Services operates the state-administered program of child
protective services. The state's population is low, compared to other states surveyed. Native
American children from nine reservations across the state represent the majority of the children
in care.
1. Eligibility:
The child must be over the age of six, and must have been in the state's care for at least six
months.
The goals of reunification and adoption must have been explored and determined to be
unattainable or otherwise not in the best interests of the child.
Parental consent is not required.
2. Policies and Procedures:
If it is determined that the child is eligible for guardianship and that it is in that child's best
interest, the Department will proceed with the guardianship in State Court.
Once the guardianship is awarded, the Department discontinues all services, except for the
subsidy.
3. Amount and Sources of the Subsidy:
The amount of the guardianship subsidy is determined according to the child's needs and the
financial resources of the guardianship family.
The income of the guardianship family is compared to the statewide median-income level each
year. The amount awarded to the guardianship cannot exceed the foster care rate.
The state fully funds the subsidy and does not receive any federal government reimbursement.
4. Statistics:
South Dakota's population of approximately 700,000 is somewhat smaller than other states
included in this study. The small number of children serviced by the state therefore reflects the
overall size of the population.
Children in Foster Care
560
Kinship Care
230
(AFDC paid)
Children Subsidized Legal Guardianship
40-45
* Approximately 60% of the children in care are Native Americans.
10
WASHINGTON
The state of Washington has a state-administered system and operates its Children, Youth and
Family Services Department in regional offices across the state.
A permanent plan must be developed no later than 60 days from the commencement of custody
by the Department and its goals should be attained within 15 months from placement. Although
the Department identifies guardianship as a permanent plan option, it recognizes that this
alternative is not as permanent as reunification or adoption.
The Washington Appeals Court has stated that, "the intent of guardianship is to give the parent(s)
[the] opportunity to take those steps necessary to resume custody of [the] child in
[the] foreseeable future, and guardianship is only [a] temporary situation." In re A.V.D. 62
Wash. App. 562, 815 P.2d 277 (1991). Nevertheless, guardianship plays an important role in
Washington under certain circumstances, and the state does offer support for placements which
meet the requirements of its Dependency Guardianship program.
1. Eligibility:
A child must be in the custody of the Department for at least six months before
guardianship will be established.
Reunification attempts/services must be documented by the Department.
It must be shown by the Department that guardianship is in the best interests of the child.
There is no age limit for the child to be considered for guardianship.
Parental consent is not required.
Relatives are given preference as guardians over non-relatives.
All potential guardians must be approved through a background check, criminal history
check and homestudy.
2. Policies and Procedures:
The laws of Washington stress the importance of permanency planning in caring for dependent
children. A permanency plan must be developed for each child within 60 days of removal, and
must be pursued until the goal is achieved, which should be done within 15 months of placement,
or when the child's dependency status ends.
The Department is ordered by the court to implement the permanent plan for a child within the
above-mentioned time frame, and this plan is reviewed every twelve months until the goal is
achieved or the dependency ceases.
The guardian receives statutory rights to protect, discipline and educate the child, and consent to
necessary medical and dental care. Visitations with birth parents must be arranged by the
guardians.
An annual review of the placement is made by the Department to determine the continued
eligibility of the guardians and the propriety of the financial support provided by the state.
3. Amount and Sources of the Subsidy:
All Dependency Guardians receive financial support equal to the state's foster care rate, as well
as medical assistance for the child. The subsidy amount is reduced by any other income/benefits
that the child received (i.e. Social Security, etc.). Washington fully supports its guardianship
program.
11
4. Statistics:
Children in Guardianship Program
1,600
Total Children in Care
10,000
(FC Adoption, Guardianship)
% of Total Children in Kinship Care
50% of total population
12
ATYPICAL
GUARDIANSHIP PROGRAMS
The following states were reported to have Subsidized Legal Guardianship
programs, however, our research has determined these programs were
either not state-subsidized, not truly guardianships or had no guardianship
programs in existence.
13
CALIFORNIA
California has a county-administered system of child welfare services. As a result, policies and
procedures vary sometimes greatly, across the state. Interviews were conducted with
representatives from Los Angeles County and Orange County. These two counties, although
contiguous geographically, illustrate the diversity in policy on the issues of Subsidized Legal
Guardianship and Kinship care in this state.
A. Los Angeles County:
Los Angeles County has the largest population of children in care in California, and the second
largest population in the country, approximately 65,000.
The county has shifted its focus of permanency planning from the traditional options of adoption,
guardianship and long-term foster care, to reunification. In fact, the county believes it offers the
most comprehensive family preservation and reunification services in the country.
If reunification cannot be achieved, then adoption is the next popular permanency planning
option. Guardianships are temporary arrangements according to administrators in Los Angeles
County, and therefore, is not favored.
B. Orange County:
Just outside of Los Angeles County, and with a much smaller caseload (3,200 children in care, in
contrast to L.A. County's 65,000), Orange County offers a form of Subsidized Legal
Guardianship, but it is only available to non-relative caregivers.
Cases are classed as either Family Reunification or Permanent Placements. Permanent Placement
cases include the categories of long-term foster care; guardianship with continued dependency
(GWCD); Guardianship with terminated dependency (GWTD); or as cases with the current
goals of guardianship or adoption.
Guardianship with continued dependency (GWCD) cases are those in which custodial and
authoritative rights are given to the guardians, but the custody of the child remains with the
county. Federal IV-E reimbursement is available to the county since the child is still considered
a dependent of the State and County.
Somewhat similar, and much more widely used, is guardianship with terminated dependency.
These guardians received the authority to make educational, medical and other such decision for
the child, as with GWCD.
Orange County does not have any age limitations on the children who can become wards under
GWTD. The only criteria for consideration specified in the statute is that the child be in care for
at least twelve months, during which time reunification efforts have been proven to be
unsuccessful; and that adoption has also been ruled out as a possible plan for the child.
Essentially, the courts in Orange County and other California counties are choosing to delegate
some caseworkers. of the decision-making authority to relatives, which would otherwise be done by their
14
COLORADO
Colorado has a county-administered system of child welfare. Interviews were held with
representatives of Denver County's Department of Social Services, the largest of the county
departments.
Currently, the state has two types of guardianship arrangements; traditional guardianship and
foster care with guardianships. Both types are considered as options only after it has been
determined that the child cannot return home or be adopted. Termination of parental rights is
not required for the guardianship to be explored.
Traditional Guardianship:
County assists guardian with obtaining full guardianship.
Support payments to the caregiver are discontinued.
Foster Care Guardianship:
The county department retains legal custody and authority for the placement.
County involvement continues.
Six months review continue in Court, however, monthly casework visits cease.
Foster Care Board payments continue and the state obtains Federal IV-E
reimbursement.
Foster care with guardianship is similar in many aspects to the Orange County, California
programs, entitled guardianship with continued or terminated dependency. However, one
significant difference is that Colorado does allow, and actually encourages, relatives, to assume
the guardianship. They can still receive the foster care board rate in doing so. Orange County
only allows this benefit for non-relatives.
ILLINOIS
The State of Illinois operates a state-administered child welfare system through its Department of
Children and Family Services. The state is faced with one of the largest and fastest growing
populations of children in care in the country. The active caseload has more than doubled since
1990, increasing from approximately 21,000 in 1990 to 50,000 in 1996. In its largest county, Cook
County, some 32,000 children are in care and 26,000 are with relatives, according to one
administrator interviewed.
With the "front door" to their system wide open, Illinois began to search for new ways to find
permanent homes for the children in care and to close some of these cases.
SUCCESSOR GUARDIANSHIP
This option, still contained within the regulations of the state, was the likely reason Illinois was
reported to be a state with programs of subsidized legal guardianship. However, Successor
Guardianship has not been used because of the lack of availability of federal reimbursement for the
program.
15
1.
Eligibility:
Child must be 14 years or older.
Child must have lived with the prospective guardian at least one year immediately
prior to the guardianship petition.
Child must have been in the Department of Children and Family Services
custody for at least one year.
The child cannot have any medical, transportation or personal expenses which
would create a financial burden for the guardian.
Reunification and adoption must be ruled out as options.
Parental Consent is sought, but not a requirement.
2. Policies and Procedures:
The DCFS initiates Juvenile Court proceedings to transfer guardianship and assumes
all costs related to the proceedings. If financial assistance is needed, DCFS will
determine if the family meets the criteria for subsidy as set forth in the regulations.
3.
Amount and Source of the Subsidy:
The including: regulations state that a subsidy request will be evaluated according to several facts
The wishes of the child and guardian;
The interaction between them;
The child's adjustment to the placement and community;
The mental and physical health of all individuals involved;
and whether the guardian is financially supporting of the child.
A subsidy can be awarded up to $1 less than the foster care rate.
4.
Statistics:
As mentioned earlier, this option is not widely used due to reimbursement issues. Because
of this, it has been reported that approximately twenty children across the state are in this program.
Efforts to Seek Federal Support: the IV-E Waiver Request 2
The Illinois DCFS has repeatedly sought to convince the Federal government of the desirability of
recognizing guardianship as a viable permanency outcome and granting it subsidized status, as with
adoption. In July, 1995, responding to the U.S. Department of Health and Human Services'
invitation for Child Welfare Demonstrations Pursuant to Section 1130 of the Social Security Act,
Titles IV-E and IV-B, Illinois submitted a proposal to allow for the use of Federal IV-E funds to
subsidize legal guardianship.
The proposal would make a subsidy available only to relative caregivers. The child would have to
have been in the care of the DCFS for at least two years and in the home of the relative for at least
one year. Reunification must not be likely within one year from the time of consideration for
2 Illinois Title IV-E Waiver Request, Illinois Dept. of Children and Family Services, Jess McDonald, Director (July
1995).
16
guardianship. Adoption must also be found to have been sought and deemed unattainable. Consent
of the child would be required for children over the age of twelve.
The DCFS would conduct a preliminary screening of the case to determine eligibility; conduct a home
study; assist in applying for the guardianship; and pay the legal fees involved in the proceedings.
Other characteristics of successor guardianship mentioned earlier would also apply. Post-placement
services would be available as with the state's Adoption Assistance Program, including crisis
intervention services.
Most importantly, the waiver request not only projects cost neutrality from closing these cases to the
system., but a major savings through the reduction of administrative and program costs. In fact, the
proposal estimates an accumulated savings of over $22,000,000 over a five-year period.
From a policy standpoint, Illinois voices its position that guardianship, though not as permanent an
option as adoption, is only an inferior form of permanency if there is a realistic prospect that the
children could be adopted. Otherwise, the alternative is long-term foster care, which is the least
permanent option available and also the most costly one for the system.
As of August 1, 1996, the U.S. Department of Health and Human Services had not yet acted upon the
Illinois Waiver Proposal, one of many proposals for waiver demonstration projects submitted.
ANOTHER OPTION: DELEGATED RELATIVE AUTHORITY
While trying to persuade the federal government of the benefits of subsidized legal guardianship,
Illinois instituted another permanency planning option, Delegated Relative Authority (DRA).
Under this program, DCFS delegates much of its decision-making authority and physical custody of
the child to the relative caregiver, but retains legal custody of the child.
The DCFS is able to reduce its services in these cases and is able to maintain its Title IV-E
participation.
1.
Eligibility:
Child must have been a ward of the Department.
Child must have resided with caregiver one year prior to the establishment of DRA.
The child cannot have any extraordinary medical, mental health, or educational
needs for which state support services would be required.
Reunification and adoption must be ruled out.
2. Policies and Procedures
The DCFS caseworker must complete a Caregiver Assessment Summary which
evaluates the appropriateness of the child and caregiver for DRA.
Once the case is transferred to DRA, the same DCFS or private agency caseworker
will provide follow-up monitoring. In-home reviews are done on a semi-annual,
rather than monthly, basis.
Savings? 04 Admin + Program Costs
17
The DCFS formally grants authority to the caregivers to take the child out of
the state up to 30 days without informing the Department; to obtain ordinary
and routine medical and dental care for the child; to enroll the child in school or obtain
educational services; to sign general consent and waiver of liability
forms for the child's participation in school field trips; and to manage
any funds provided for services for the children.
The relative must be licensed as a foster care provider or approved as a relative
caregiver with or without waiver of standard.
3.
Amount and Source of the Subsidy:
Under DRA, the caregiver would receive the same amount as the foster care rate.
Federal IV-E reimbursement is applicable under this arrangement.
4.
Statistics on Children in the Program:
There are currently 469 children in DRA throughout the State of Illinois.
NEW MEXICO
New Mexico has a state-administered child welfare system which operates through its Department of
Children, Youth and Family Social Services Division.
The administrators interviewed in New Mexico said that they did not have a program of subsidized
legal guardianship, despite the fact that the state had been identified as one of ten states which did so.
In fact, New Mexico law does have provisions in its Adoption Code to extend an adoption subsidy to
placements with permanent guardians. However, the state's Department of Children, Youth and
Family Social Services Division does not invoke this option for permanent guardians. They rather
prefer to pursue adoption in all cases in which reunification is not possible.
When a child is placed in a foster home, the placement is for an initial period not to exceed two years.
Hearings are held every six months, thereafter, to determine whether the placement should continue.
Relatives are the first placement preference for a child entering care. During the initial removal, the
child's wishes and those of the birth parents are also taken into consideration. Additionally, the
child's attachment to the prospective caregiver and the community, the mental and physical health of
the individuals involved, and the availability of needed services are assessed at this juncture.
In New Mexico, any adult can petition the Court to be appointed as the child's guardian, including
relatives and foster parents. Agencies and institutions cannot be considered. To be eligible for
permanent guardianship, the child must have been adjudicated dependent; the Department must have
made reasonable but unsuccessful efforts to reunify the child with his or her parents and adoption is
not likely, or is not in the best interests of the child. Children of any age may be considered for
guardianship care.
A subsidy agreement must be entered into before the decree of adoption or guardianship is rendered
by the Court. The amount of the subsidy is based on the needs of the child and is re-evaluated
annually. The Department is given authority to develop regulations for the administration of
subsidized adoptions and guardianships. As previously indicated, however, the Department does not
currently have any recognized program of subsidized guardianship.
18
One administrator interviewed indicated that there are presently about seven children placed in
"long-term foster care," which is the identified permanent plan for these children. The foster families
receive the foster care rate of support and have relaxed levels of Department supervision, due to the
recognized abilities of the caregivers to meet the ongoing needs of the children.
ANALYSIS OF THE STATE PROGRAMS
An analysis of the programs of the ten guardianship states reveal many similarities in the way
Subsidized Legal Guardianship is used. We attribute this similarity to the common philosophy held
by the administrators who create the policies governing the programs.
One of their common principles is that guardianship is intended to serve as the permanent plan only
when efforts at reunification and adoption have failed and it is likely that the child will remain in long-
term foster care.
All of the states require that reasonable efforts to reunify the child with his/her birth parents be
made, and that thereafter, reasonable efforts should be made to have the child adopted. To
accomplish this goal, the states require that the child be in foster care for a period of time before
becoming eligible for guardianship (the length of time varying from state to state, from six to
eighteen months).
Additionally, several of the states have minimum age requirements for the children to be considered
for guardianship, since younger children are more likely to be adopted than older ones. Minimum
age requirements range from age six to age fourteen. Exceptions are made for younger children who
are part of a sibling group to be placed together, or who have special needs, or when the prospective
guardian is a relative.
Another common trait among the state programs studied was the desire to make the guardianship
placement as permanent as possible. It is recognized that guardianship is not as "permanent" as
adoption, since the birth parents retain their parental rights, and thus can challenge the guardianship
at any time. The states also hope to avoid disruptions in the guardianship placement, due to any lack
of attachment between the child and the guardian, or the guardian's inability to effectively supervise
the child or meet his/her needs.
Therefore, extensive efforts are put forth by the states to decide whether guardianship is indeed
appropriate. Additionally, agency staff meet with the child, the birth parents, and the prospective
guardians to be sure that all parties understand the guardianship process, and its goals.
It is noteworthy that though guardianships can be pursued in all of the states without parental
consent, such consent is nonetheless sought. It is believed that parental consent provides a more
stable placement and allows the guardianship process to proceed more expeditiously.
Likewise, the consent of the child is required in several of the states, if the child is over a certain age.
This consent is believed to reflect the child's attachment to the guardian, an important element in
avoiding future disruptions. Also, most of the states encourage visitation rights for the birth parents.
One important difference in the states' programs is the court in which the guardianship is presented
and ordered. In Alaska and South Dakota, guardianships are presented in the State Court of general
jurisdiction; Juvenile Courts have jurisdiction in California, Hawaii,
19
Illinois, New Mexico and Washington; while Probate Courts hear cases in Massachusetts and
Nebraska. The overwhelming view of administrators in all of the states is that the Juvenile Court,
which has adjudicated the case since the child entered the dependency system, is the most appropriate
Court to decide the guardianship issue.
Moreover, the procedure followed to secure the guardianship is similar in all of the states. The initial
recommendation for guardianship is made by a caseworker. Thereafter, a review of the
recommendation is made by various personnel of the child welfare agency and the parties to the case.
Next, contact is made with the birth parents (if possible), the prospective guardian, and the child, to
inform them of the guardianship process and to seek their consent to this arrangement. Afterwards,
the final decision to pursue the guardianship is made by the social service agency staff, and the
guardianship petition is then prepared and presented to the Court.
If the guardianship is to be subsidized, every state requires that an application for subsidy be made
prior to the guardianship hearing. Once the Court awards guardianship, all of the states close the
case to the system, and all service and intervention ceases.
However, this guardianship subsidy is not automatic in any of the states. A determination of the need
for the subsidy to support the placement must first be made. Once this basic determination is made,
the states vary in establishing the amount to be paid.
Some states set the level of support at the current foster care rate. Reductions are then made for any
unearned income of the child through other government benefits (such as Social Security or child
support). In other states, the amount of the subsidy is determined by conducting an analysis of the
needs of the child, including board payments, medical costs, legal costs incurred in the assumption of
guardianship, and after-placement services. The available resources of the guardian are then
assessed to determine the extent to which the guardian can meet these needs.
In most cases, the amount of the subsidy is the same as, or very close to, the foster care rate. In one
state, South Dakota, the income of the guardianship family is taken into account when setting the
amount of the subsidy. If the family's income is less than 60% of the state's median income level, the
support will be the foster care rate. If the income exceeds 60%, the amount of the subsidy is reduced.
In each state studied, the subsidy agreements require annual re-application or re-certification in
order to renew receipt of this support; continued qualification for the subsidy must be demonstrated.
By the terms of the agreements in every state, the subsidy is discontinued if the guardianship
terminates for any reason, or if the child is no longer being cared for in the home of the guardian.
Statistics gathered show that compared to the total number of children in care, the number of
children placed in subsidized legal guardianship programs in these states is relatively low. This is due
primarily to the fact that the states do not receive Federal reimbursement for the subsidies paid to the
guardians. However, under the demonstration project in Illinois' IV-E Waiver Proposal, pending
before the U.S. Department of Health and Human Services, Illinois would receive such Federal
reimbursement. This state projects that if this proposal was implemented, some 5,700 children
would be placed in subsidized legal guardianships by the end of two years.
The states reported the following current, approximate numbers of open cases in their subsidized
guardianship programs: Alaska - 160; California - 300; Hawaii - 100; Illinois - 20; Massachusetts
- 1,500; Nebraska - 291; South Dakota - 40; and Washington - 1,600.
See for Faster Care
Dan Lewis
20
205 8618
States presently possessing successful subsidized legal guardianship and others considering
implementation of such programs, realize the numerous benefits of subsidized legal guardianship as a
permanency planning option. These benefits include the following:
Children in guardianships experience a more stable and permanent placement
than those in foster care.
Many caregivers, particularly kinship caregivers, do not require the services
and intervention of social service agencies they must receive while acting as
foster parents. However, many need the level of financial support paid to
foster parents. Subsidized Legal Guardianship meets the needs of these
caregivers. Also, in some circumstances, adoption is not the best option for
the caregiver or the child.
Subsidized legal guardianship allows state agencies to close cases which do
not require their services, saving millions of dollars each year in administra-
tive costs.
Several criticisms of the subsidized legal guardianship option have limited its potentially widespread
use. It has been argued that:
Subsidizing guardianships will increase the cost of child welfare services to states.
Guardianship is not really a permanent plan, since it can be challenged at any
time and is easily disrupted; thus in some cases, children return to the system.
Subsidizing legal guardianships, especially kinship guardianships, discourages
birth parents from seeking to remedy the problems which initially caused the
removal of the children.
Subsidized legal guardianships will be abused by birth parents and kinship
caregivers to obtain greater financial support than that offered through public
assistance (AFDC), while avoiding the intervention and regulations of child welfare
agencies.
States with successful subsidized legal guardianship programs expressed how their programs
effectively dealt with such criticisms.
Some states feel subsidized legal guardianship will increase the costs of providing child welfare
services, especially those with no federal reimbursement. However, others believe the benefit of
administrative cost savings far outweighs the burden due to the lack of federal reimbursement
moneys from cases closed through guardianship.
Another concern is that if children are placed in subsidized legal guardianship at a relatively young
age, they will likely stay in that placement, and thus the amounts spent on the related subsidy will
continue to rise. Yet, administrators in states with successful guardianship programs believe emphasis
on this concern overlooks the fact that guardianship should only be sought when reunification and
adoption are not viable option. This would leave long-term foster care as the only other permanency
option in states without subsidized guardianship.
Hence, these children would remain in foster care just as long as they would if subsidized
guardianship were accepted. Further, the foster care program costs the state more than the
subsidized guardianship program due to the administrative and judicial review expenses associated
with foster care.
21
Interestingly, all of the states interviewed agreed that guardianship is not as "permanent" an option
as adoption. In fact, several of the states are not presently pursuing subsidized guardianship because
of this permanency issue. However, other states, such as Massachusetts, Illinois and Colorado,
recognize that adoptions often cannot be pursued.
This is true due to the unwillingness of some relative caregivers to agree to adoption; or, if
termination of parental rights is not an act in the best interests of the child, due to a strong bond still
existing between the birth parents and the child. Also, in states with Native American children in
care, adoption is not a culturally acceptable alternative.
Good casework practices can also help to avoid future placement disruptions. The identification of
special physical, mental, emotional, educational or other such needs of the child, for which state
services would be required, should disqualify the case from consideration for guardianship. An
exception would be if the guardians agrees to, and is able to meet such needs, by themselves. In fact,
some statutes mandate that such an assessment be performed.
Another fear came to light as we posed the following scenario to the administrators:
A parent, perhaps a very young one who is addicted to drugs, feels that she have less
of an incentive to be rehabilitated and try to regain custody of her child who is in a
kinship placement than they would if their child were not in such a placement. This is
true, since their child is safe and being cared for by a trusted relative. The chances of
a lack of action by the birth parent is even greater when the caregiving relative is
receiving more financial support than the birth parent herself could provide to her
child through employment or public assistance.
In response, the administrators pointed out that it is the children who are the primary focus of the
system. Thus, if the parent is unable to safely care for the child, the social service agency does not
have a choice; they must step in and care for the child.
More importantly, they noted, none of the states reported any documented cases of this type. In
addition, none of the administrators knew of any research which indicated that such feelings or
practices by birth parents are pervasive in the child welfare system. Unfortunately, as one
administrator pointed out, it is not typically the comfort of knowing that their children are taken care
of which prevents most birth parents, especially those drug-addicted, from rehabilitating themselves
and regaining custody of their children.
A final concern we presented to the administrators was whether subsidized legal guardianships are
abused by birth parents and kinship caregivers. Specifically, do they garner greater financial
support through guardianship than what is available to them from public assistance, while avoiding
the intervention of the child welfare agency?
One representative in Massachusetts stated that this opposition was voiced by his legislature, where
the guardianship subsidy was actually viewed as a welfare subsidy for many participants. The
thought is that birth parents will consent to the assumption of guardianship by the grandparents or
other relatives, in order to receive the greater guardianship board rate than the birth parents could
receive for the child from welfare.
Thus, without agency supervision, the birth parents could regain physical custody of and raise child,
and receive the benefit of the higher support payment. Administrators in Massachusetts acknowledge
that this may happen in some cases, but doubt that this practice is widespread.
Finally, all of the states require that the child be adjudicated dependent and that the potential
guardians be foster parents for a period of time. This means that foster parents (kin and non-kin)
22
cannot secure guardianship without first receiving family preservation and reunification services;
undergoing foster care training and certification; and serving as a foster parent for a period of time.
This provides ample opportunity for the social service agency to assess the family's caretaking ability,
as well as to re-evaluate the need for the child to remain in the system.
In summary, the states with active subsidized legal guardianship programs, i.e. Alaska,
Massachusetts, Nebraska and Washington, reported success in providing stability and permanence
for children through guardianship, having limited alternative permanency options available to them.
They have also realized significant cost reductions from closing cases in the form of administrative
savings.
Additionally, subsidized legal guardianship is viewed by administrators in these states as a program
which meets the needs of kinship caregivers, who are often able to provide the care for the children
without government intervention, but require financial assistance in order to do so.
Four of the states studied, California, Hawaii, New Mexico and Illinois, have subsidized guardianship
programs on the books, but do not widely use them. The first three states cite the lack of true
permanence through guardianship as the main reason for not pursuing this option; instead, they
prefer to seek adoption. Illinois cites the lack of Federal reimbursement moneys as the largest
impediment to their making use of subsidized legal guardianship.
However, as more and more states experience increasing caseloads in foster care and an increase in
the use of relative caregivers, subsidized legal guardianship will be examined more closely. It is likely
that more pressure will be placed on the Federal government to participate in the support of
guardianship programs, just as they do with foster care and adoption. Such participation would
likely increase the use of subsidized legal guardianships across the country.
23
CHAPTER 1
THE CHALLENGES OF PERMANENCY PLANNING AND
THE USE OF SUBSIDIZED LEGAL GUARDIANSHIP
AS AN OPTION IN THE BATTLE
All across the country, child welfare agencies are facing a crisis in the foster care system.
Caseloads have been exploding in recent years, while the number of potential caregivers has
decreased. The problems of poverty, teenage pregnancy and drug use have thrown the "front door"
to the system wide open; the existing number of out-of-home providers has not kept up with the
resulting increases. The "back door" to the system, i.e., permanency planning, has not been opened
as wide, due to a number of practical, economic and cultural reasons. Too many children are staying
in foster care for too long. Many states are feeling the pinch of the administrative costs related to
providing support to the caregiving families.
As a result of the expanding number of children being placed outside of their homes, state
and county agencies have begun tapping into a source of caregivers which informally had been
operating to some degree all along: relatives and other "kin." This has increased the number of
available homes in which to place children, simultaneously the trauma of separation for the children
and preserving their cultural, religious and community ties. It has also demonstrated, in many cases,
that less administrative intervention is needed in kinship placements. However, it appears that
children placed in such foster homes tend to remain in care longer than children placed in traditional
foster homes. Therefore, more viable, timely and effective permanency planning options need to be
developed to meet the needs of today's child welfare providers.
The traditional permanency options available for children in out-of-home placement have
been: 1) reunification with their birth family; 2) adoption; 3) long-term foster care; and 4) assumption
of legal guardianship by the caregiver, either subsidized or non-subsidized.
24
Reunification is always the first goal, and the most desirable, if attainable. Unfortunately,
in today's world of child abandonment and parental drug use, reunification often cannot occur.
Adoption is usually the next alternative to be explored. Next to reunification it is the most
permanent option for the child. Also, the Federal government provides a subsidy to states for eligible
families, making adoption economically feasible. It also allows state and county agencies to remove
these cases from their burgeoning caseloads, saving millions in administrative costs.
However, adoption is not always the answer for older children and children placed with
relatives. Relatives are sometimes unwilling to adopt the children in their care because of the
necessary legal process of terminating the parental rights of the birth parent or parents, who are also
related to the caregiver. Many feel that the natural parents may someday be able to resume custody
of the child and want to allow them to try to do so. Additionally, many of the relative caregivers are
grandparents who, because of their age, are reluctant to adopt the child. Some states are using
variations of traditional adoption to address these problems. For instance, "open adoption" and
"kinship adoption" allow for the continued involvement of the birth parents according to an
agreement between the adoptive and birth parents. Termination or permanent relinquishment of
custodial rights of the birth parents would take place, but visitation and other parental rights could
be maintained. These options continue to evolve as states grapple with the resources available to
them through Aid to Families with Dependent Children (AFDC)³, Title IV-E funding and the Federal
adoption subsidy in funding this option.
When reunification and adoption have been explored and appear to be unavailable, long-
term foster care can become the choice by default. However, this option requires the most
administrative intervention (e.g., open cases, monthly visits by caseworkers, court reviews) and with
it, the highest expense in the form of administrative costs and support payments.
3
Title IV-A, Social Security Act, 42 USCA Sec. 601-617.
4
Title IV-E, Social Security Act, 42 USCA Sec. 670-679a.
5
Adoption Assistance & Child Welfare Act, PL 96-272, 42 USCA Sec. 6608. 620-628, 671-676.
25
In addition, foster parents are not permitted to make decisions regarding the child's
education, medical treatment, or even travel, without the consent of the state or county child welfare
agency. Worst of all, the children in long-term foster care have the least level of permanence or sense
of belonging.
The final traditional option has been the assumption of legal guardianship by the
caregiver. This option is not truly a "permanent" one, since the birth parents can always challenge
the guardianship and maintain their other parental rights. However, it is far more "permanent" than
long-term foster care in that the caregivers make a legal commitment to care for the child and can
make educational, medical and other decisions on behalf of the child. The state or county agency can
then close these cases and eliminate the administrative costs associated with them, saving millions of
dollars.
The caregivers have the knowledge that the birth family's parental rights have not been
terminated an important factor to relatives deciding whether to assume guardianship. At the same
time, the child has the security of knowing where he or she will be raised, in the event that his or her
their birth parents are unable to regain custody of him/her.
One problem with legal guardianship has been that it is not financially supported by the
federal government. No federal funding is available, nor is there any such subsidy as that associated
with adoption. As a result, most states discontinue all support payments to the caregivers once
guardianship is assumed. However, if the child is otherwise eligible, caregiver could receive AFDC
payments, but this amount is usually far less than the amounts they are paid for being foster parents
(In Pennsylvania, it is about half as much.) Many caregivers are simply unable to assume
guardianship due to this lack of financial support.
Several states have made the decision to utilize some of the administrative cost savings
associated with removing the cases from their system to subsidize the guardianships. Many others are
considering the idea, and some have even contacted or requested financial assistance from the federal
government through a waiver of Title IV-E funding. (At the time of this printing, Illinois is awaiting
26
the decision of the U.S. Department of Health and Human Services on their IV-E waiver proposal,
submitted in 1995; Delaware received approval of their waiver proposal in August, 1996.)
The ten states reported to administer subsidized legal guardianship programs⁶ are:
Alaska
Massachusetts
California
Nebraska
Colorado
New Mexico
Hawaii
South Dakota
Illinois
Washington
This publication explores these ten programs. Each state was contacted and/or visited in
person. Public administrators and private non-profit human service agencies were interviewed and
information was collected pertaining to laws, policies and procedures. These profiles are intended to
offer valuable information to other states considering the use of subsidized legal guardianship as a
new permanency planning option to address the ongoing problem of children languishing in the foster
care system.
CAUTIONARY REMARKS
Subsidized legal guardianship, like all elements of the child welfare system, is a dynamic
and ever-changing concept. Our research was conducted during the first six months of 1996, and so
the programs or their components may have changed since the time of our research. For example, at
this time, Illinois is awaiting a decision by the U.S. Department of Health and Human Services
concerning their waiver proposal to allow the use of IV-E funding for subsidized legal guardianship.
This approval could drastically alter the way Illinois deals with guardianship as a permanency
planning tool. As pointed out, Delaware has received approval of a IV-E waiver proposal, based on
the subsidized guardianship programs of Nebraska and Massachusetts, and will begin implementation
later in 1996. A summary of Delaware's Assisted Guardianship Program appears as Appendix D.
6 Children's Voice, Child Welfare League of America, Summer 1995 Edition, page 9; State Practices in Using Relatives
for Foster Care, U.S. Dept. of Health and Human Services, Office of the Inspector General (July 1992); and
Reinventing Guardianship, Meryl Schwartz, Vera Institute of Justice (June 1993), page 42.
27
CHAPTER 2
THE RESEARCH
The first step in our research process was to identify states who had subsidized legal
guardianship programs. It had been reported in various publications that there were at least ten such
states (Alaska, California, Colorado, Hawaii, Illinois, Massachusetts, Nebraska, New Mexico, South
Dakota and Washington).⁷
Next, we obtained the names of administrators in each of these states and contacted them
by telephone to obtain basic information about their respective programs. These individuals were
extremely helpful in providing background information, legislation, policies, statistics, documents and
references.
After collecting preliminary data, we decided to conduct on-site interviews in six of the
states: California, Colorado, Hawaii, Illinois, Massachusetts, and Nebraska. These states were
chosen based on the initial information received which indicated that these states either had well-
established programs of subsidized legal guardianship or were facing a crisis in foster care and
considering implementing such a project. A Research Vehicle was prepared to facilitate the on-site
interviews and appears as Appendix A of this report.
The states were visited and additional data collected. In addition to the initial
administrators contacted, we also interviewed other administrators of foster care, adoption and
guardianship departments, caseworkers and their supervisors, private provider agency personnel,
legal representatives and legislators.
7
Children's Voice, Child Welfare League of America, Summer 1995 Edition, page 9; State Practices in Using Relatives
for Foster Care, U.S. Dept. of Health and Human Services, Office of the Inspector General (July 1992); and
Reinventing Guardianship, Meryl Schwartz, Vera Institute of Justice (June 1993), page 42.
28
Pertinent statutes and regulations collected for the states studied appear as Appendix B of
this report.
Information was sought in four basic areas:
1. Eligibility for the program;
2. Policies and procedures;
3. Amount and sources of the subsidy; and
4. Statistics on the program.
1. Eligibility for the Program. This area is concerned with how children get into the
program. Questions asked include how old the child had to be; whether he had to be in the custody
of the state; the length of time required in their placement with the prospective guardian; whether
reunification and adoption must be determined to be impossible; whether the prospective guardian
has to be certified or licensed as a foster parent; whether consent of the parents and/or the child was
necessary; and whether the prospective guardian was required or allowed to be a relative.
2. Policies and Procedures. The "nuts and bolts" of program implementation were
explored in this area. We obtained information on how the goal of guardianship is to be determined;
what clinical and legal conferences are held; the legal process that is followed and who pays for it; the
form and nature of the written agreement between the state, the guardian, and if necessary, the birth
parents; the follow-up services available to the guardian and the child; the involvement of the state in
periodic reviews; how the state deals with challenges to the guardianship by the birth parents; and
how they handle possible abuse of the system by some of the guardians or birth families.
3. Amount and Sources of the Subsidy. Here we examined how the amount of the subsidy
is determined and identified the sources of those funds. We asked whether the amount was based on
financial need of the guardian and/or the special needs of the child; whether it varied from placement
to placement or was it the same in all cases; how it compared with the foster care rate being paid in
29
the state and the amount received by adoptive parents from the state and the federal government;
whether the guardians have to requalify for the subsidy periodically; and how guardians are
disqualified from receiving these funds.
4. Statistics on the Program. Figures were sought on the total number of children in
placement and then were broken down into those with goals of foster care, adoption and
guardianship; the number of children in subsidized guardianship placements; the number of kinship
placements as a percentage of the whole; and the costs and/or cost savings of the subsidized legal
guardianship. We found that many of the states had not been tracking kinship placements separately
from non-kinship placements in the past, but were beginning to do so.
We also analyzed trends to determine if the total number of children in care and the costs
of maintaining the system were increasing, decreasing or stabilizing. Other information was sought,
such as the number of years the subsidized guardianship program had been in existence and whether
the services were administered by the state or by the counties.
30
CHAPTER 3
STATE BY STATE PROGRAM PROFILES
In this chapter, we set forth our research of each of the ten states having, or reported to
have, programs of subsidized legal guardianship. While we will occasionally point out some
similarities and differences between the elements of the states' programs in this chapter, the next
chapter will present a comprehensive summary and comparative chart of all of the states studied.
We learned that of the ten states reported to have subsidized guardianship programs, only
six had fully state-subsidized legal guardianship programs in active use (Alaska, Hawaii,
Massachusetts, Nebraska, South Dakota and Washington). As a result, the profiles of these states
will be presented first, in the format of the research areas outlined in Chapter 2. The other four
either states have programs which are not fully state-subsidized or not truly guardianship in the
traditional sense of the word, or else have no active program of subsidized legal guardianship. These
states will be discussed separately.
31
Alaska8
Alaska provides its foster care services through its Division of Family and Youth Services
(DFYS), which is a division of the Department of Health and Social Services. The system is state-
administered through three regional offices. Alaska encourages family preservation through a
number of support programs, and seeks to place children who must be removed from their homes
with relatives before placing the child in a licensed foster care home. Once in foster care, the state
will attempt to return the child to its birth family, if possible, but will move to have the child adopted
or placed in guardianship if reunification is unlikely.
The state considers guardianship as a permanent plan, not a temporary arrangement
pending changes in parental behavior. Contact with birth parents in guardianship cases is
encouraged unless it would seriously interfere with the permanence of the placement.
Eligibility
DYFS will make subsidy payments only to guardians of children who were in the custody
of DYFS at the time the guardianship plan was formulated. The children must be considered "hard
to place," or as having "special needs." Such children have been defined as being minors who are
not likely to be adopted by reason of physical or mental disability; emotional disturbance; possession
of a high risk of physical or mental disease; their age; membership in a sibling group; racial or ethnic
factors; or any combination of these conditions.
Adoption is generally the preferred alternative choice in Alaska because the state feels it
offers a higher degree of permanency for the child. As a result, the goal of guardianship is usually
limited to children over the age of ten, if one of the following criteria is met (in order of preference):
1) the child is not free for adoption, but desires a guardianship plan and the birth parents agree;
2)
8
The information presented for Alaska's program of subsidized legal guardianship was obtained from Alaska's statutes
and regulations, AS 13.26.030 et. seq.; 7 AAC 53.200 et. seq.; Alaska Dept. of Health and Social Services, Div. of
Family and Youth Services regulations, Chapter 3, Section 3.26; and also from telephone interviews with DFYS
representatives.
32
the child is free for adoption, but does not want to be adopted or adoption does not appear to be
feasible, or guardianship is preferred over adoption due to compelling cultural or other reasons as set
forth in the statute; or 3) the child is not free for adoption, but consents to the guardianship; and
although the birth parents do not consent, they are not likely to interfere with the plan based on
previous case history. Note that in all cases for children over ten, the child's agreement is required.
For children under the age of ten, guardianship will only be considered if one of the
following criteria is met: 1) the child is part of a sibling group where one or more of the children is
over age ten and the goal is for the sibling group to remain together; 2) the child is seriously disabled;
3) the child has developed an attachment to the current caretaker who is willing to become the
guardian; or 4) there are compelling cultural or other reasons (such as the child being Native
American) which make guardianship the preferred choice over adoption, including placement with
close relatives. The primary factor to be considered for children under ten is whether the
guardianship reasonably will assure permanence for the child.
No minimum time of DYFS custody is required for a child to be eligible for to a
guardianship arrangement. However, in all cases, the child must have been in the care of the
prospective guardian for at least six months, in order to assess the child's adjustment and attachment
to the foster family.
In any case, the prospective guardians must agree to assume guardianship and provide a
stable home for the child until he/she reaches the age of eighteen. They must also sign a written
Subsidized Guardianship Agreement and agree to make annual reports to the court, as well as DYFS,
in a yearly renewal of the Subsidy Agreement. The prospective guardians also must consent to, and
receive a favorable recommendation in, a guardianship home study.
Policies and Procedures
The first step toward establishing a guardianship is the recommendation by a Permanency
Planning Staffing Team at the Regional DYFS Office for guardianship as the permanent plan for the
child made. The PPST also recommends whether a subsidy is to be provided to the family. If the
33
child for whom the guardianship is being analyzed is under age ten, approval for the guardianship is
required from the Adoption Coordinator in the Central DYFS Office.
Eligibility is then determined according to the criteria previously mentioned. Discussions
are then held with the child, the prospective guardians and the birth parents, to secure the necessary
agreements to the proposed plan. A guardianship study, which follows the same format as an
adoptive parent study, is conducted on the proposed guardians.
Next, a lawyer from the Alaska Attorney General's office prepares the guardianship
petition and other required documentation, and represents the prospective guardians through
appointment. It is explained to the prospective guardians that any subsequent court action will
require them to obtain a private attorney.
Finally, the amount of the subsidy is determined and the Subsidized Guardianship
Agreement is signed by the guardians and DYFS. The Regional and Central Office Adoption
Coordinators approve all documents, and the file is held until the Court Order is signed. Once the
file is received by DYFS, the caseworker closes the family to the system. The Guardianship
Agreements are then renewed annually by the guardian through the Adoption Coordinator in the
Central Office.
Alaska recognizes that since parental rights are not terminated, the parents can later seek
to have the guardianship set aside. Therefore, consultation is made with birth parents, the Attorney
General's Office and the proposed guardians, to seek either the parents' approval of the plan or their
agreement not to interfere with the arrangement. Contested guardianships will still be considered,
but only after consultation with the Attorney General's Office and the Permanency Planning Staffing
Team.
Amount and Sources of the Subsidy
The amount of the subsidy varies in each placement according to the needs of the child and
the circumstances of the guardians. The only controlling characteristic is that the amount of the
34
subsidy cannot be greater than the amount which would be paid for the child if he/she was in foster
care. The payments made to the guardians come entirely from state funds.
The subsidy does not carry any Medicaid benefits, even if the child was previously IV-E
eligible. The only way a child can continue to receive Medicaid benefits is if he/she qualifies for Social
Security benefits based on a handicap or the income of the guardian. The guardian is advised to
place the child on the guardian's private medical insurance, if any, and include the amount of the
insurance premium into the calculation of the subsidy amount for which they apply.
Guardians are also advised that future counseling and other services may be needed to
care for the child. The projected cost of these services should also be contemplated in the negotiation
of the guardianship subsidy.
The subsidy can be modified to reflect the needs of the child or the circumstances of the
guardian. Also, the subsidy will cease if it is determined that the guardian terminates the agreement;
the child is no longer in the care of the guardian; the child reaches the age of eighteen or dies before
reaching eighteen; or the guardians fail to submit an annual review of their need for the subsidy to
continue.
Statistics
Alaska experienced over a 99% increase in the number of reported cases of harm to
children between 1989 and 1995 (7,876 cases reported in 1989, 15,706 in 1995). DYFS provided
family services to 2,731 families in 1995, a slight decrease over 1994. Out-of-home placements
increased from 926 in 1994 to 1,118 in 1995. Reunifications are thought to be declining, due to
substance abuse by parents and the increasing severity in the maltreatment being reported.
For children placed who were returned home, reached the age of eighteen, or were placed
in adoptive or guardianship homes in 1995, the average length of time in out-of-home care was 9.4
9 Statistics cited were reported in Fiscal Years 1994 and 1995, Annual Report, State of Alaska, Dept. of Health and
Social Services, Div. of Family and Youth Services (March 1996).
35
months, a decrease from 10.7 months in 1994. Representatives credit the aggressive closing of cases
through permanency planning.
Hence, the number of children in foster care is decreasing while the number in adoptive
homes or guardianship is increasing, as evidenced by the following statistics:
1994
1995
Kinship Foster Care
401
349
Other Foster Care
848
845
Adoption
480
568
Subsidized Guardianship
127
160
Alaska has recognized that subsidy costs continue to increase. Nonetheless, it is their
expressed preference to provide assistance to children placed in permanent homes, rather than to
retain legal custody and continue to pay the higher financial and emotional costs of foster care.
36
Hawaii
Hawaii has a state-administered system of child welfare services which operates through
its Department of Human Services. The state has developed alternative permanency options in
addition to the more traditional ones used in other states. Along with long-term foster care, legal
guardianship (both subsidized and nonsubsidized), and adoption, the state also uses a legal status
known as "Permanent Custodians" (PC), which possesses characteristics of foster care, adoption, and
guardianship.¹
In PC cases, a person and/or an entity is named as the Permanent Custodian of the child.
The state can be named as the sole PC, or as a co-PC with a caretaker individual or private provider
agency. This arrangement allows the state to retain its IV-E eligibility. The PC has much of the same
legal authority for the child as that of a guardian. The are no monthly visits by a caseworker, but
annual reviews are required.
If the state is named as the sole PC, the Department still delegates much of the day-to-day
decision-making authority to the caretaker. The caretaker, however, cannot make major medical
decisions or move the child out of the state. In addition, the Department could revoke the caretaker's
physical custody and assign it to another caretaker (if the Department felt it was in the child's best
interests) more easily than if the caretaker was the sole or the co-PC.
Even if the caretaker is the sole PC, the state financially supports the placement. The only
difference is that Hawaii would not be able to receive Federal IV-E reimbursement. The amount of
state assistance for a PC placement cannot be more than the foster care rate, and in many cases,
actually is the same. The amount is determined by taking the foster care rate and deducting any
other income, benefits or support received by the child from any other sources.
10 Permanent custodian regulations are found in Title 17, Hawaii Administrative Rules, Subtitle 6, Chapter 945, Section
17.945.10 et. seq.
37
Hawaii also has several private foundation agencies, such as the Casey Family Program
and the Queen Lili'uokalani Children's Center, which become PC's for children and provide support
for the foster families, often without state or federal reimbursement. It is not unusual for an abused
or neglected child to never enter the state system at all, but rather to get support and services from
these private agencies. In fact, such agencies are believed to serve over 800 children each year, while
the state serves approximately 2,100. As PC's, these agencies seek appropriate caregivers to become
"foster parents" of the agency, or to assist the caregiver in assuming legal guardianship of the child.
Hawaii has been providing assistance to guardians since 1990.¹ Close to half of these
cases involve relative guardians.
Eligibility
This state is very concerned with ensuring that all parties understand that the assumption
of guardianship is intended to be the permanent plan for the child, rather than a temporary one
which birth parents can revoke if and when they are able. Therefore, the statute provides that before
such guardianship is approved, a permanent plan hearing must be held to award permanent custody
to the appropriate party, typically the Department.
This meeting serves to terminate parental rights and requires an in-depth assessment by
the parties and the court as to whether guardianship is actually preferable to adoption or permanent
custody. If it determined that the proposed guardian would require the assistance of the Department
or the court in order to care for the child, the guardianship will not be ordered.
Ordering permanent custody prior to the assumption of guardianship also means that if
the guardianship ever ceases because of voluntary termination by the guardians or other
circumstances, the child comes back to the permanent custodian, usually the Department, rather than
returning to his/her birth parents.
11
Information set forth regarding Hawaii's program of subsidized legal guardianship and statistics was taken from the
Hawaii Child Protective Act, HRS 587-27 and 587-73; Hawaii Administrative Rules, Title 17, Subtitle 6, Chapter 835,
Section 17-835-1 et. seq. and Chapter 945, Section 17-945-10 et. seq.; and from interviews with Hawaii DHS
administrators and service personnel, and representatives of the Hawaii Attorney General's Office.
38
Additionally, the child must be in the system for eighteen months before being considered
for guardianship. During that time, the goal for that child is reunification. In some circumstances,
such as when reunification is obviously impossible, a permanent plan hearing may be held earlier than
eighteen months; if permanent custody is ordered at that time, adoption will be pursued. In any case,
if reunification is unlikely within a reasonable period of time, not to exceed three years, and adoption
is determined to be impossible, guardianship then will be explored.
No age limit is set forth in the statute for a child to be considered for guardianship. Foster
care certification is not required for guardians, but in almost all cases, these caregivers were already
serving as the child's foster parent for a period and had been certified to do so.
Policies and Procedures
After the child has been in placement outside the home for eighteen months, the case plan
is reviewed and the goal may be changed to guardianship. As stated, consent of the birth parents is
sought, but is not necessary. A permanent plan hearing is held at which time the court awards
permanent custody, usually to the Department, and parental rights are terminated. In many cases,
the birth parents are involved with the foster care placement and agree to the permanent plan and the
assumption of guardianship. The permanent plan hearing and the guardianship proceedings are then
consolidated into one proceeding.
Also, the prospective legal guardian completes an application for financial assistance on
behalf of the child. This application must be made prior to the award of guardianship. A written
permanency assistance agreement must be entered into with the Department prior to, or at the time
of, the final decree awarding guardianship. Annual recertification is mandatory, but can be as simple
as the guardians sending a written statement to the Department certifying that the child is still in their
care and that the family continues to require financial assistance.
All services of the Department are terminated upon the order of guardianship, except for
the financial assistance and annual recertification (which is done by assistants, not caseworkers)
39
unless the child comes back into the system due to the termination of the guardianship. The
guardians are allowed to move out of state with the child and still receive assistance from the state.
Amount and Sources of the Subsidy
The assistance provided to guardians in Hawaii is fully financed by the state, or by private
foundations in some cases. No federal dollars are used. In 1991, the state began to seek IV-E funds
in all eligible cases, due to the large increase in costs for PC, guardianship and foster care cases.
Prior to this, the state had been providing all of the assistance itself. Since 1991, the
Department, after receiving its funding from the General Fund of the state, applied for the IV-E
reimbursement. The IV-E money has been going back to the state, but the Department is currently
attempting to retain the funds, or at least part of them, to provide support and other services for the
children in care.
The amount of assistance is automatically set at the foster care board rate, and additional
funds are also available for special circumstances, such as clothing needs, transportation costs to
school or medical facilities, and medical care when other resources are unavailable.
Any amounts received by the child from another source, e.g., child support from a parent
or Social Security income, are either deducted from the board payment, or must be sent to the
Department as reimbursement. In addition, part of any income earned by the child shall be paid
directly to the guardian and deducted from the board payment.
The guardian must agree to report any changes which affect the placement, such as the
child's residence elsewhere or a change of address. Failure to report any such changes will be
investigated as suspected fraud.
Payments can continue until the child reaches eighteen, unless the child is still in high
school or attending an accredited college. If the child is still in high school at age eighteen, benefits
can continue if the child will complete high school in the current or following school year. If enrolled
full-time in college, benefits can continue until age twenty-two.
40
Finally, the Department will terminate assistance if the guardianship terminates, the child
reaches majority, the child no longer needs the assistance because of their earned or unearned
income, the guardians no longer desire to receive the assistance, or the child achieves independent
living and is self-supportive.
Statistics
Hawaii's Department of Human Services currently has some 2,100 children in its care.
Almost half (48%) are in kinship placements, as evidenced by these numbers:
Foster Care
1,470
Permanent Assistance
200
(PC and Guardianship)
Adoption - Federally subs.
200
Adoption - State subs.
200
Higher Education support
30
Total
2,100
It is estimated that approximately 6% of the total state budget is spent on Permanent
Assistance to adoptive parents, PC's and legal guardians.
The state has experienced a significant number of children re-entering the system who had
been in guardianship placements, particularly in the adolescent years. This occurs
with approximately twenty-five to thirty children each year. Some administrators believe that the
services the Department could provide if they were to remain the PC would benefit the placement and
possibly avoid re-entries. When a child re-enters the system from a guardianship placement, the
Department goes to court to re-establish their permanent custody.
For these reasons, the Department is favoring the use of PC's over guardianships in cases
in which reunification and adoption are not plausible.
41
The sole exception to this rule lies in the case of relative caregivers, for whom
guardianship may still be appropriate. The administrators we interviewed believe that children who
maintain their biological relationships tend to adjust better emotionally, and relative caregivers are
more likely to maintain those relationships.
42
Massachusetts
12
The Department of Social Services for Massachusetts administers the child welfare
services for the state. One of the oldest child service provider agencies in the country, the
Department operates with one central, four regional and twenty-four area offices. Massachusetts has
had a program of state-subsidized legal guardianship for over ten years, and has long recognized the
importance of kinship care and its unique permanency planning position in the lives of the children in
the system.
In fact, as one administrator reported, when it is necessary to remove a child from his/her
home, the goal after reunification would be to find a permanent kinship placement. In all cases, a
permanent plan is to be made for a child within eighteen months after placement.
The subsidized legal guardianship program has the popular support both of Department
caseworkers, who recognize the need for another permanency planning tool, and of caretakers,
(particularly relatives) who are unable or unwilling to adopt the children in their care for economic,
cultural or physical reasons. In the state's written policies, guardianship should be considered as the
preferred permanent plan after the primary options of reunification and adoption have been ruled
out.
Eligibility
The state caseworker, in consultation with his/her supervisor, first determines whether the
placement in question meets the state's published policy criteria for guardianship. This criteria
includes the determination that the child cannot return home or be adopted, or that the latter is not
the best permanent plan for the child.
In addition, the child must have been in placement in the proposed guardian's home for
one year, although exceptions are allowed (e.g., if the child had been in residential care if authorized
by a Regional Director.) The state also requires that the child must be at least twelve years old, unless
12 Information on the subsidized legal guardianship program of Massachusetts was taken from Chapter 201 of the
Mass. General Laws, Section 2; Dept. of Social Services regulations, 110 CMR 7.300 to 7.303; policies and forms of the
Dept. of Social Services; and interviews with department administrators and casework supervisors.
43
he/she is part of a sibling group, or if guardianship has been determined to be the permanency option
in the best interest of that child. The administrators explained that guardianships are often pursued
for children under twelve on the basis of these exceptions.
The child (if over the age of twelve) and the potential guardian(s) must consent to the
guardianship. The consent of the natural parents is also sought, but the guardianship may still
proceed without the consent, if they cannot be located or it is determined that they will not actively
contest the guardianship, even though they refuse to affirmatively sign the consent.
The prior policy in Massachusetts had been that no contested guardianship would be
sponsored, because it was felt it lacked sufficient "permanence." This policy has been modified to
include cases such as those enumerated above, where the likelihood of contest is small or the
Department believes that guardianship is the best plan for the child in spite of the parent's opposition.
All potential guardians must submit to a foster care homestudy or reevaluation.
Policies and Procedures
Once the caseworker has determined the eligibility of the placement based on the above
criteria, that caseworker requests a Clinical and Legal Conference to review the appropriateness of
guardianship as the plan for the child. The caseworker, supervisor, area manager, state permanency
planning coordinator and Department attorney will convene to review the case.
All case information will be examined, including the history of the natural family's fitness;
their contact with the child during the out-of-home placement; the availability of relatives as a
permanent family resource; the siblings of the child and the efforts made to keep them together; any
anticipated legal opposition from the parents; and the likelihood of success of the petition.
If the conference(s) result in a recommendation for guardianship, a Guardianship Packet is
prepared. This consists of a Guardianship Referral form, application for Subsidized Guardianship,
the Guardianship Plan and a certified copy of the child's birth certificate.
44
The Guardianship Plan is prepared by the Area Director and includes information on the
history of the child's case while in the Department's care; his/her current custody status; a
description of the prospective guardian and the child, including any special needs; and a statement as
to why the goal of guardianship is the most appropriate plan for the child. The Department attorney
prepares the guardianship petition and represents the guardian and the Department in Probate Court
for the guardianship hearing.
If the court approves the guardianship, the Department so notifies the birth parents and
informs them that any future visitation must be arranged through the new guardian. The caseworker
also refers the case to the Subsidy Administrator. The placement is reviewed by the caseworker six
weeks after the award of guardianship to determine stability.
After this review, the caseworker formally terminates Department involvement, except for
annual renewal of the subsidy agreement. Post-placement services, such as family support groups,
are available only upon request through the area offices. This represents one gap in services which
administrators would like to have addressed by policymakers.
Amount and Sources of the Subsidy
Massachusetts pays the same amount of support to guardians as it does to foster parents.
It is entirely funded by the state, with no federal reimbursement. The only exception occurs when the
child is receiving support from any other state or federal agency, in which case
the guardianship subsidy shall only be allotted to the extent necessary to raise the total support
received from all sources to equal the foster care rate. Medicaid benefits are also provided.
Annual renewal of the subsidy is required. This consists of the completion by the guardian
of a Subsidy Reapplication, which is mailed to them by the Department. It requires certification that
the child is still in their care inside their home, and asks the guardian to indicate whether the subsidy
is requested to be continued, and whether a clothing allowance and/or Medicaid is also needed.
Department personnel are not required physically to verify the information on the
Reapplication, but can recoup payments made to guardians who no longer care for the children, if it
45
comes to the attention of the Department. It is possible for the Department to cross-check
information with area offices to ensure the same child is not receiving a board payment through more
than one caregiver.
The subsidy is terminated if the guardianship is terminated, if the child is no longer in the
guardianship home, or if the guardian fails to submit the annual subsidy reapplication.
Statistics
It is estimated that Massachusetts' Subsidy Department, which manages the subsidy
payments to adoptive parents and legal guardians, provides support to over 7,500 children.
Approximately 1,500 of these children are in guardianship homes, and the number is growing,
especially in kinship cases. Definitive statistics on the percentage of the cases which were kinship
placements have not been tracked, but it is estimated that kinship placements account for about one-
half of the adoption cases and at least one-fourth of the guardianship cases in Massachusetts.
The administrators we interviewed acknowledged the increasing cost of providing support
to guardians without the federal reimbursement moneys which are available for foster care and
adoptive placements. However, they also acknowledge that the state saves millions of dollars in
administrative and program costs when cases are moved from foster care to guardianship (one
administrator felt the savings could be as much as $10,000 per year per child).
46
Nebraska¹³
With its state-administered system, Nebraska has been subsidizing guardianship
placements since the early 1980's. The state's policies set forth the desire to ensure that the financial
barriers and costs associated with a child's needs do not prevent the appointment of a guardian as the
preferred alternative to long-term foster care. In addition, the Juvenile Code and the Department of
Social Services' policies recognize the importance of relatives as caregivers.
Legal guardianship, which allows for contact between the child in care and his/her
biological family is considered a long-term legal commitment between a child and the guardian family.
It is thought to be the appropriate option in cases when the child has a strong, positive attachment to
his/her natural parents who are not, however, able to be full-time parents; when the child has a
strong attachment to a relative who is willing to make a long-term commitment to the child but does
not wish to adopt; or when the child selects the permanency option of independent living rather than
adoption or guardianship.
Eligibility
The Department will support a legal guardianship using guidelines established in the
state's written policies. These policies include a determination that the child has had a positive
relationship with the prospective guardian and has experienced at least six months of successful living
in the prospective guardian's home.
It also should be determined that the child cannot return home, despite reasonable
opportunities provided to the birth parents to correct the family conditions which led to the child's
removal and subsequent placement. It must be unreasonable (for a reason particular to the case) to
pursue adoption, despite reasonable efforts to secure an adoptive parent and/or voluntary or
involuntary termination of parental rights. The prospective guardian and the child should be able to
function effectively without Department supervision.
13 Information presented for Nebraska's subsidized legal guardianship program was obtained from Nebraska Revised
Statues, Sections 30-605 to 30-2616; Section 43-533; Section 43-1301 to 43-1318; Nebraska Dept. of Social Services
Manual, 390 NAC 6-004 and 6-005; DSS policies, forms and guidebooks; and interviews with DSS personnel.
47
Additionally, the child should be age twelve or older, unless he/she is part of a sibling
group to be placed together, or has sufficient attachment to the proposed guardian who is unable or
unwilling to adopt the child. One administrator indicated that younger children are usually not
considered for guardianship unless they are part of a sibling group or the proposed guardian is a
relative.
Finally, the prospective guardian should be willing and able to support the child financially
or a guardianship subsidy should be pursued by the caseworker. If the guardian wishes to receive
the subsidy, the child must be considered a ward of the Department. In addition, to be placed
together the child should be diagnosed with a behavioral, physical or mental disability, and/or be a
member of a sibling group of at least three.
Prospective guardians are chosen from the following categories in order of preference:
1. Relative of the child;
2. Child's foster parent;
3. Another party with whom the child has an
existing relationship;
4. New foster parent committed to the
guardianship plan.
The child's consent is required if the child is over the age of fourteen. If the child is under
fourteen, consent is sought from and objections explored with the child, the guardian ad litem and the
prospective guardian. The caseworker makes the final recommendation for placement, which should
be in the child's best interests.
Parental consent is also sought in every case, but the Department can proceed without it if
this is believed to be in the best interests of the child. Parental objections should be addressed by the
caseworker or the Court at the guardianship hearing. Many times, the parents consent to the
guardianship, and their consent and nomination of the guardian are attached to the guardianship
petition.
48
The guardians will have undergone a homestudy and certification if they have been serving
as the child's foster parent. Relatives do not have to be certified, but do undergo an approval check,
including police clearances, and a "child-specific" home study.
Policies and Procedures
A caseworker considering legal guardianship for a child will hold a case conference with
their supervisor and specialized adoption staff, and possibly a permanency plan reviewer and/or the
guardian ad litem. A examination of the child's and provider's eligibility, needs and wishes will be
made, in order to determine whether guardianship is in that child's best interests.
If it is, an explanation of the legal process and the rights and responsibilities of legal
guardianship is made to the child, the proposed guardian and the natural parents. Consent from all
parties is sought at this point.
Also, the caseworker and prospective guardian determine whether a subsidy is needed to
support the placement. The family's eligibility for other programs of support, such as AFDC for
relatives, should be explored. If a guardianship subsidy is needed, a subsidy application is filled out
prior to gaining court approval for the guardianship as a subsidy cannot be approved after the
guardianship hearing.
Next, the caseworker prepares a Guardianship Packet for the court. This consists of a
cover letter to the attorney who will represent the guardian in the petition to the court; the Court
Order indicating the Department's custody of the child, certified copies of the child's birth certificate;
the parent's death certificate, the termination of parental rights order or voluntary relinquishment of
parental rights, if applicable; and a Guardianship Summary of the case.
The Guardianship Packet is sent to the attorney of the prospective guardian. Chosen by
the guardian, this attorney may be referred to him/her by the Department. Payment of legal expenses
are included in the subsidy agreement as a one-time cost. The attorney proceeds to prepare and
present the guardianship petition to the Probate Court. The caseworker should attend the hearing
and testify, if necessary, in support of the guardianship.
49
After the court awards guardianship, the caseworker closes the case. The only subsequent
Department involvement is an annual review of the subsidy arrangement.
Amount and Sources of the Subsidy
The policy of Nebraska requires guardians who are relatives to use all available resources,
benefits and programs, including private medical insurance, child support and AFDC, before using
the guardianship subsidy. The subsidy is 100% state funded, and consists of one or more of the
following:
1. Monthly maintenance;
2. Child care expenses;
3. Medical Assistance;
4. Transportation to medical treatment; and/or
5. Legal costs to obtain guardianship.
In some cases, only one or two of these items are needed by the guardians, e.g., legal fees only, or
maintenance and medical assistance only.
The amount of monthly maintenance shall not be higher than the foster care rate. The
maintenance support, as with foster care support, is determined based on the level of need of the child
and varies according to their age. The guardians and the caseworker negotiate the amount the family
will receive, which is part of the Subsidy Agreement and is to be reviewed annually. Deductions are
made in the maintenance payments for any other income due to the child or family from Social
Security benefits, child support or AFDC.
The subsidy will continue until the family no longer needs the assistance; the child reaches
the age of majority, which is nineteen in Nebraska; or the guardianship or care for the child ceases.
Statistics
Nebraska's DSS currently has approximately 4,200 children in its custody, most with the
goal of reunification. As of November, 1995, 118 of the cases had the goal of guardianship; 254 had
50
the goal of non-relative adoption; 91 had the goal of relative adoption; and in 190 cases, long-term
foster care was the plan.
Recent statistics indicate approximately 291 children are placed in the homes of guardians
receiving state subsidy. This number has grown 411% since 1990.
It is believed that about 10-20 guardianships disrupt each year. These children return to
DSS custody and a new placement is sought.
An additional 1,034 children are in adoptive homes which receive state and federal
adoption subsidy. Currently, 78 children are in the care of adoptive parents for whom final adoption
proceedings are pending.
51
South Dakota¹⁴
South Dakota has a state-administered program of child protective services, operated by
the Department of Social Services. The state's population is low compared to other states surveyed,
and Native American children from nine reservations across the state represent the majority of the
children in care. The cultural aspects of the Native American presence contribute to the child welfare
policies.
For example, as one administrator explained, the Native American culture has no such
concept as adoption, and the term "kin" refers to the whole community or tribe in which the child
was born. The concept of legal guardianship is understandable and more "palatable" than adoption,
but still is not readily accepted. For these reasons, the majority of the children being supported in
out-of-home placement are in foster care, many placed with relatives.
When a child must be removed from his/her home, the state attempts first to place that
child with a relative. For the most part, the relatives are not licensed and receive only AFDC
support.
The subsidized legal guardianship program in South Dakota operates on policies and
practices dating back to the 1970's. There are no regulations or statutes in place for this
arrangement.
Eligibility
In order for a child to be considered for subsidized guardianship, that child must be over
the age of six and must have been in the state's care for at least six months. The goals of reunification
and adoption must also be explored and determined to be unattainable or otherwise not in the best
interests of the child. Parental consent is not required.
14
Information presented for South Dakota was obtained from telephone interviews with a representative of the Office
of Child Protection Services, South Dakota Dept. of Social Services; and State Practices in Using Relatives for Foster
Care, U.S. Dept. of Health and Human Services, Office of the Inspector General (July 1992); and Reinventing
Guardianship, Meryl Schwartz, Vera Institute of Justice (June 1993).
52
If the guardian has been a foster parent, he/she would have been certified at that time.
Very few relative caregivers are certified, and as a result, receive only AFDC support.
Policies and Procedures
If it is determined that the child is eligible for guardianship and that it is in that child's
best interests, the Department will proceed with the guardianship procedure in state court. If
needed, a subsidy agreement is negotiated and entered into by the proposed guardians and the
Department.
Once guardianship is awarded by the court, the Department terminates the case and
discontinues all services to the family, except for the subsidy and annual review of the subsidy
contract.
Amount and Sources of the Subsidy
The amount of the guardianship subsidy is determined by the child's needs and the
financial resources of the guardianship family. Medical coverage from the state for the children is not
available in guardianship cases, although the state may reimburse the guardian for the medical costs
and private insurance they receive.
The income of the guardianship family is compared to the statewide median income each
year. If the family income exceeds 60% of the statewide median income, the amount of support is
reduced. If the income is less than 60%, the support will be equal to the foster care rate. Children
who are receiving Social Security benefits are not eligible for the subsidy.
The state fully funds the subsidy and does not receive any federal reimbursement.
Statistics
As stated, South Dakota's population is somewhat lower than other states included in this
study. The population of the state is approximately 700,000. The number of children in paid foster
care is 560. Approximately 230 children are known to be in care with relatives who are not licensed
and receive only AFDC support. It is estimated that 40-45 children are in state-supported
guardianship. Of the children in care across the state, 60% are Native American.
53
Washington¹
The State of Washington operates its Children, Youth and Family Services Department in
regional offices across the state. The Department recognizes the importance of relatives as caregivers
in the lives of children who have been adjudicated dependent. Relative placement is the first option to
be considered when a child has to be removed from his or her home. The Department will also
attempt to place the child as close as possible to his/her home, preferably in the same neighborhood, if
it is in the best interests of the child.
A permanent plan must be developed no later than 60 days from the commencement of
custody by the Department. Permanent goals should be attained within 15 months from placement.
Although the Department identifies guardianship as a permanent plan option, it is
recognized that this is not as permanent as reunification or adoption. These other options are
preferred over guardianship, and should be pursued until it is determined that they cannot be
reasonably attained or that termination of parental rights is not in the best interests of the child.
In one case, a Washington appeals court stated that "the intent of guardianship is to give
parent(s) [the] opportunity to take those steps necessary to resume custody of [the] child in [the]
foreseeable future, and guardianship is only [a] temporary situation. Nevertheless, guardianship
plays an important role in Washington under certain circumstances, and the state does offer support
for placements which meet the requirements of its Dependency Guardianship program.
The state also has a non-relative guardianship program. In this program, the guardians
do not have to be licensed and may/can receive only AFDC support.
15 Information presented was obtained from Washington's Juvenile Court Act, Sections 13.34-130 to 13.34-260; Juvenile
Court Rules 3.1 to 3.11; and telephone interviews with representatives of Washington's Dept. of Children and Family
Services.
16 In re. A.V.D., 62 Wash.App. 562, 815 P.2d 277 (1991).
54
Eligibility
A child must be in the custody of the Department for at least six months before
guardianship will be established. The Department must document that services were offered or
provided to the biological parents to remedy the causes for removal, and that despite these services, it
is unlikely that the child can return home in the near future. Also, it must be shown that
guardianship rather than termination of parental rights or continuation of the dependency of the
child is in the best interest of the family.
There is no age limitation for children being considered for guardianship in the
Washington law. Administrators had been alarmed at one point that Dependency Guardianship
seemed to be on the rise for younger children. It was felt that greater efforts should be made to seek
adoption for these children. However, with the significant number of Native American children in
care, adoption is often not possible due to cultural considerations.
Parental consent to the guardianship is not required, but the court will consider the
preference of the parents in appointing a guardian. Relatives are also given preference as guardians
over non-relatives. All potential guardians must be approved through a background check, criminal
history check and home study.
Policies and Procedures
The laws of Washington stress the importance of permanency planning in the care of
dependent children. A permanency plan must be developed for each child in care within 60 days of
removal, and must be pursued until the goal is achieved or the dependency is dismissed. Goals should
be achieved within 15 months of placement.
For children age ten or under, a permanency planning hearing is held when the child has
been in placement for nine months without an adoption decree or guardianship order. For children
over ten, a hearing is held after 15 months. At this court hearing, the Department must show the
permanent plan for the child demonstrate whether it has been achieved and recommend whether the
55
current placement should continue. The court will then order the Department's permanent plan to be
implemented or modify it as it deems necessary. Hearings will continue to be held every 12 months
until the goal is achieved or the dependency is dismissed.
Any party to a dependency proceeding, including the supervising agency, may file a
guardianship petition in Juvenile Court. This is usually done by the Department on behalf of the
caregiver. If a guardianship petition is not filed by the Department, the Department then has the
right to intervene in the proceedings.
The guardian receives statutory rights to protect, discipline and educate the child and
consents to provide/fund necessary medical and dental care. The court order of guardianship shall
also specify an appropriate frequency of visitation between the parent and the child and the need for
follow-up services by the Department. The guardians cannot consent to the adoption of the child in
their care.
Any party may request the court to modify or terminate the guardianship. It must be
shown that there has been a substantial change in circumstances subsequent to the guardianship and
that it is in the best interests of the child to modify or terminate the placement.
An annual review of the placement is made by the Department to determine the continued
eligibility of the guardians and appropriateness of financial support provided by the state.
Amount and Sources of the Subsidy
In Washington, all Dependency Guardians receive financial support equal to the state's
foster care rate, as well as medical assistance for the child. The amount is reduced only if the child
receives benefits from other government sources, such as Social Security benefits, or child support
from parents. No federal reimbursement is received.
Statistics
Washington currently has some 10,000 children in formal out-of-home care. It is
estimated that about half of these cases are relative placements.
56
Approximately 1,600 children are in care through the Dependency Guardianship
Program. This is the largest number of children in subsidized legal guardianship placements in the
country, and the number continues to grow.
With this large number of guardianships, the state experiences a significant amount of
children returning to their custody each year from failed guardianships. Although it is believed that
some rate of disruption is unavoidable, DCFS administrators still see Dependency Guardianship as
the preferred alternative to long-term foster care. As stated, adoption is often not an option due to a
significant number of Native American children in care. There are 26 tribal organizations in
Washington, and in this culture, termination of parental rights is not recognized.
57
California¹⁷
California has a county-administered system of child welfare services. As a result, policies
and procedures sometimes vary sometimes greatly across the state. We interviewed representatives
from Los Angeles County and Orange County. These two counties, although contiguous
geographically, illustrate the diversity in policy on the issues of subsidized legal guardianship and
kinship care in the state.
A. Los Angeles County¹⁸
With some 65,000 children in out-of-home placements Los Angeles County has the largest
population of children in care in California, and the second largest population in the country. Over
half of these children have been placed with relatives.
The county is making a concentrated effort to focus their permanency planning on
adoption and reunification, rather than guardianship or long-term foster care. Every effort is made
to reunify the child with his or her birth family. In fact, the county believes it offers the most
comprehensive family preservation and reunification services in the country.
However, if reunification is not possible, all efforts are made to have the child adopted.
This is the case even if the child has "bonded" with a foster parent who is unwilling to adopt. The
county feels that the continuation of a temporary placement is not a situation in the best interests of a
child. Such a placement could be easily disrupted and disruption would prove even more damaging
than the child from the foster home and placing him/her with permanent adoptive parents.
Guardianship is not a favored permanent plan in Los Angeles County for the identical reasons.
The only exception to this rule (that adoption should be sought in all cases when
reunification is not possible) is when a relative caregiver is available to become a child's legal
guardian. The county recognizes that although the assumption of guardianship by a relative is not as
17 General provisions for California's relative placement policy and guardianship procedures are contained in the
California Welfare and Institutions Code, particularly Sections 281.5, 300, 361, 396, 16000 to 16002, and 16500 to
16521.
18
Information on the policies of Los Angeles County was obtained through interviews with DCFS personnel and
written policy directives.
58
guardian. The county recognizes that although the assumption of guardianship by a relative is not as
"permanent" a plan as adoption, relatives do offer a form of psychological and social permanency
that non-relatives cannot offer.
In all cases of a child being removed from his/her home, relative placement is the first
preference. Relative caregivers do not need to be certified as a foster family to provide foster care
for their kin. However, routine background checks and a home study are conducted as part of the
determination of whether the placement is in the best interests of the child.
Despite this favorable view of relatives as foster parents and guardians, the county does
not offer a subsidy to relative guardians. One source, apparently reading between the lines of this
paradox, stated that the lack of federal and state funding was probably the main reason for this
deficiency.
Although the county will aid in the assumption of the guardianship, the case will be closed
afterwards and the family will have to support the child on their own or, if eligible, with AFDC
dollars. (Since no state or county subsidy is available for guardianship, we did not follow our usual
format of researching subsidized legal guardianship in this case.)
On a positive note, the county is progressive with its view of adoption. It considers
relative, or "open," adoptions as well as traditional adoption. It also recently embarked on a
collaborative Permanency Planning Initiative with the Youth Law Center and the state to reduce the
number of children in long-term foster care through reunification and adoption efforts. Legal
guardianship is not a primary goal of the project; however, the importance of relative care as a
permanence option is recognized.
B. Orange County19
Just outside of Los Angeles County, and with a much smaller caseload (3,200 children in
care in contrast to L.A. County's 65,000), Orange County offers a vastly different view of
19 Information for Orange County was derived from interviews with county Social Service Agency personnel and from
departmental procedures and forms.
59
guardianship. The county does offer a form of subsidized legal guardianship, but it is only available
to non-relative caregivers.
Reunification is the goal for the first twelve months of the out-of-home placement. Cases
are classed either as Family Reunification or Permanent Placements. Permanent Placement cases
include the categories of long-term foster care; guardianship with continued dependency (GWCD);
guardianship with terminated dependency (GWTD); and cases with the current goals of guardianship
or adoption. Approximately 1,400 of the 3,200 children in care are Reunification cases; 1,800 are
Permanent Placements.
Guardianship with continued dependency cases are those in which custodial and
authoritative rights are given to the guardians, but the custody of the child with the county and the
dependency of the child are not terminated. Supervision by the county continues as though the child
was still in foster care, and so does financial support at the foster care rate.
Federal IV-E reimbursement is available to the county since the child is still considered a
dependent of the state and county. This option is limited, however, to cases in which the caregiver
needs the involvement of the county due to the special needs of the child.
Somewhat similar, and much more widely used, is guardianship with terminated
dependency. Guardians receive the authority to provide educational, ordinary medical and other
decision-making for the child, as with GWCD. The dependency of the child on the state is
terminated, but the county's supervision continues and the juvenile court retains jurisdiction over
some guardianship issues. For example, the court can order birth parents visitation rights and the
guardian cannot move the child out of state without court approval. Essentially, Orange County and
other California counties are choosing to delegate some of the decision-making authority to relatives
which would otherwise reside in caseworkers.
Additionally, six-month reviews of the placement and adherence to a county case plan are
required. Non-relative guardians will continue to receive support at the foster care rate, in addition
to after-placement support services. Relative guardians may only receive AFDC support, which is
60
significantly less than foster care support, and cannot receive after-placement support services. The
discrepancy between the foster care rate and the AFDC rate thus makes the assumption of
guardianship by relatives in many cases impractical, if not impossible.
Orange County does not have any age limitations on the children who can become wards
under GWTD. The only criteria for consideration specified in the statute is that the child be in care
for at least twelve months, during which time reunification efforts have proven to be unsuccessful and
adoption has been ruled out as a possible plan for the child.
Orange County, like L.A. County, does not require relative caregivers to be licensed. If
the relatives are not licensed foster care homes, however, the state may lose its ability to receive IV-E
reimbursement and would not want to make up the difference themselves. They believe that relatives
offer significant emotional and psychological advantages over non-relatives, and often do not require
or seek involvement of the county in the care of their children.
61
Colorado²
Like California, Colorado has a county-administered system of child welfare. We
interviewed representatives of Denver County's Department of Social Services, the largest of the
county departments, and learned that Colorado was embarking on a study to examine the feasibility
of adopting a legal guardianship program fully subsidized by the state. They were surprised to learn
that their state had been identified as having a subsidized legal guardianship program.
Currently, the state has two types of guardianship arrangements: traditional guardianship
and foster care with guardianship. Both types are considered as options only after it has been
determined that the child cannot return home or be adopted. Termination of parental rights is not
required for guardianship to be explored.
In the traditional guardianship arrangement, the county department assists the caregiver
in gaining full legal guardianship through the court and discontinues its legal involvement with the
child. Support payments to the caregiver also stop once guardianship is assumed.
With foster care as with guardianship, the county department retains legal custody and
authority for the placement. The guardianship petition states that the continued involvement,
services and support of the county are necessary to preserve the placement. Monthly caseworker
visits no longer occur; however, six month reviews continue through a court-sanctioned foster care
review system. Foster care board payments also continue and the state obtains federal IV-E
reimbursement, since they retain legal custody of the child.
Foster care with guardianship in Denver, Colorado is similar in many aspects to the
program of guardianship with continued or terminated dependency in Orange County, California.
One significant difference, however, is that Colorado allows, and actually encourages relatives to
assume guardianship. Relatives can still receive the foster care board rate in doing so. Orange
County only allows this benefit to non-relatives.
20 Information presented for Colorado's practices was obtained from Colorado Department of Human Services forms
and manuals; interviews with state Division of Child Welfare Services personnel; and interviews with Denver County
Dept. of Social Services representatives.
62
Foster care with guardianship has not been widely used in Denver County to this point.
Some judicial opposition has been encountered, and in many cases, the arrangement has been used
when the child has special needs, so that county services and intervention can remain, an option
deemed to be in the best interests of the child.
Administrators and others working on a state-subsidized legal guardianship proposal
recognize that state would, at the present time, lose Federal IV-E reimbursement if cases were
transferred from long-term foster care or foster care with guardianship to fully state-subsidized legal
guardianship. However, they believe that the state would still recognize an overall savings through
administrative cost reductions from closing these cases through guardianship. In addition, they
believe that a guardianship arrangement is more beneficial to the well-being of the child than long-
term foster care.
The state and counties have also recognized the importance of relatives as caregivers. For
instance, kinship care regulations have been adopted. One result of a settlement agreement, reached
between the state and the plaintiffs in a class action suit arising out of a task force investigation by the
American Civil Liberties Union and the Colorado Lawyers Committee, is that each county will
institute a kinship care unit.²¹ These units will provide family preservation services to birth families,
enable the family to make voluntary arrangements for temporary custody or guardianship by
relatives, and provide support and permanency planning services to relative caregivers.
The preferred permanent plan options for kinship providers is adoption or guardianship.
Relatives do not have to be licensed if the child is already IV-E eligible, or if the relatives meet the
foster care certification criteria with minor allowable deviations (e.g., number of beds in the home.)
At the time of our research, definitive statistics on the use of kinship care were not available. The
state has begun to keep track of kinship care placements separately from other placements.
21
Civil Action 94-M-1417, U.S. District Court for the District of Colorado (1994).
63
Illinois
22
The State of Illinois is faced with one of the largest and fastest-growing populations of
children in care in the country. A state-administered system, the active caseload has more than
doubled since 1990, increasing from approximately 21,000 in 1990 to 50,000 in 1996. In Cook
County, which encompasses the Chicago area, some 32,000 children are in care while 26,000 are with
relatives, according to one administrator interviewed.
Societal and economic pressures, such as teenage pregnancy, widespread drug-use among
parents, and poverty have contributed to the number of abused and neglected children who have been
removed from their homes. The number of traditional caregivers could not keep pace with the
numbers of dependent children. Therefore, relative caregivers became a source of placement
opportunity, and new and unique concepts of permanency planning had to be developed to meet the
needs of this group of caregivers.
At the same time, cases arising in the wake of the famous Youakim V. Miller decision in
1979 (which held that relative caregivers should receive the same level of foster care support as non-
relative caregivers) and Illinois' subsequent response to it, brought thousands of relative caregivers
into the system who had been previously caring for children in informal arrangements while receiving
no financial support from the state. In addition, Illinois did not require relative caregivers to be
certified as foster care providers. As a result, Illinois could not receive Federal IV-E reimbursement
on these cases.
With the "front door" to their system wide open, Illinois began to search for new ways to
find permanent homes for the children in care and to close some of these cases. The circumstances of
the placements in many instances, such as drug dependency of the birth parent(s) and child
abandonment, made reunification an unrealistic possibility.
22 General information concerning Illinois' child welfare system, its programs and statistics was obtained from the
Illinois Administrative Code, Title 89, Sections 302 and 305; Illinois Title IV-E Waiver Request, Illinois Dept. of
Children and Family Services (July 1995); and interviews with DCFS representatives and agents.
64
Illinois also found that adoption was not an acceptable alternative for many kinship
caregivers due to familial and cultural reasons. Many are reluctant to participate in a process which
would terminate their relative's parental rights. Others want to encourage their relative to correct
his/her problems and regain custody, and do not want to preclude him/her from doing so.
Successor Guardianship
The first alternative option proposed in Illinois was Successor Guardianship. (This option,
still contained technically within regulations of the state, was likely the reason Illinois was cited as one
of the states with a program of subsidized legal guardianship.) However, Successor Guardianship
has not been used because of the lack of availability of federal reimbursement for the program.
Consequently, Illinois does not offer successor guardians a subsidy, and most caregivers
cannot afford to support the children without one. Statewide, it was estimated that less than 20
children are placed with successor guardians.
Eligibility
The regulations state that a child is eligible for successor guardianship only if he/she is
over 14; consents to the guardianship; has lived in the prospective guardian's home for at least one
year immediately prior to the guardianship petition; has been in the custody of the Department of
Children and Family Services (DCFS) for at least one year; and has no medical, transportation or
personal expenses which would create a financial burden for the successor guardian.
In addition, reunification and adoption must be ruled out as options. Parental consent is
sought, but is not a requirement if the DCFS has good cause to proceed without it and provides notice
to the natural parents.
Policies and Procedures
The DCFS initiates juvenile court proceedings to transfer guardianship and assumes all
costs related to the proceedings. DCFS also explains the legal duties and responsibilities of
23 Illinois Administrative Code, Title 89, Section 302.400.
65
guardianship to the successor guardian, assists in planning visitation by the natural parents, and
offers post-placement services for up to three months after the award of guardianship. If financial
assistance is needed, the DCFS will determine if the family meets the criteria for subsidy as set forth
in the regulations.
The successor guardians must give the parents an opportunity to visit the children and
inform DCFS if any material changes occur which affect the guardianship. They must also file an
updated case plan to the juvenile court every six months.
Amount and Source of the Subsidy
The regulations state that a subsidy request will be evaluated according to several factors,
including: the wishes of the child and the guardian; the interaction and relationship between them;
the child's adjustment to the placement and community; the child's need for stability and continuity of
relationship with the guardian; the mental and physical health of all individuals involved; and
whether the guardian is financially supporting the child. If these criteria are met, a subsidy can be
awarded up to one dollar less than the foster care rate. The family's gross income will be reviewed in
the determination of this subsidy.
As stated, because of the lack of federal reimbursement, the Illinois DCFS has been unable
to subsidize successor guardianship, and this option, for all intents and purposes, does not exist in
Illinois at the present time.
Efforts to Seek Federal Support: the IV-E Waiver Request²
The Illinois DCFS has repeatedly sought to convince the Federal government of the
desirability of recognizing guardianship as a viable permanency outcome and granting it subsidized
status, as with adoption. In July, 1995, responding to the U.S. Department of Health and Human
Services' invitation for Child Welfare Demonstrations Programs (pursuant to Section 1130 of the
24 Illinois Title IV-E Waiver Request, Illinois Dept. of Children and Family Services, Jess McDonald, Director (July
1995).
66
Social Security Act, Titles IV-E and IV-B), Illinois submitted a proposal to allow for the use of
Federal IV-E funds to subsidize legal guardianship.
The proposal would make a subsidy available only to relative caregivers who assume legal
guardianship. The child would have to have been in the care of the DCFS for at least two years and
in the home of the relative for at least one year. Reunification must not be likely within one year from
the time of consideration for guardianship. Adoption must also be found to have been sought and
deemed unattainable. Consent of the child would be required for children over the age of twelve.
The DCFS would conduct a preliminary screening of the case to determine eligibility;
conduct a home study; assist in applying for the guardianship; and pay the legal fees involved in the
proceedings. Other characteristics of successor guardianship mentioned earlier would also apply.
Post-placement services would be available as with the state's Adoption Assistance Program,
including crisis intervention services.
Most importantly, the waiver request not only projects cost neutrality from closing these
cases to the system., but a major savings through the reduction of administrative and program costs.
In fact, the proposal estimates an accumulated savings of over $22,000,000 over a five-year period.
From a policy standpoint, Illinois voices its position that guardianship, though not as
permanent an option as adoption, is only an inferior form of permanency if there is a realistic
prospect that the children could be adopted. Otherwise, the alternative is long-term foster care,
which is the least permanent option available and also the most costly one for the system.
As of July 1, 1996, the U.S. Department of Health and Human Services had not yet acted
upon the Illinois Waiver Proposal, one of many proposals for waiver demonstration projects
submitted.
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Another Option: Delegated Relative Authority²⁵
While trying to convince the Federal government of the benefits of subsidized legal
guardianship, Illinois instituted another permanency planning option, Delegated Relative Authority
(DRA). Under this program, the DCFS, as the legal guardian for the child, officially delegates and
physical custody of the child much of its decision-making authority to the relative caregiver, but
retains legal custody of the child, who remains a dependent of the state. The state has recognized that
many relative caregivers do not require the level of services and intervention provided in traditional
foster care cases.
The DCFS is able to reduce its services in these cases down to the minimum level
consistent with the achievement of Title IV-E participation. Caseloads could be as much as eighty to
one because no monthly visits would be conducted. Administrative case reviews would be completed
every six months. The Department's overhead costs could be reduced by an estimated 80%.
In addition, administrative overhead costs paid to private provider agencies (who provide
casework services for some 60% of all cases in Cook County) are cut by 67% for DRA cases. The
state continues to receive full IV-E maintenance and Medicaid reimbursement under DRA, and the
caregivers continue to receive the foster care board rate and medical coverage for the children.
To be eligible for DRA, a child must be a ward of the Department; must have been in the
care and the home of the relative caregiver for a minimum of one year prior to the establishment of
DRA; and must have no extraordinary medical, mental health, or educational needs for which state
support services would be required. Reunification with biological parents must be unlikely within
one year, and adoption, private guardianship, and successor guardianship must be ruled out as viable
options.
The caseworker must complete a caregiver assessment which evaluates the
appropriateness of the child and the caregiver for DRA. Contact is made with the child's school and
medical providers to examine the child's needs and the caregiver's abilities and cooperation in
25 Illinois Administrative Code, title 89, Section 305.40.
68
meeting those needs. Also, the caregiver is given extensive information on all of the permanent
options available to them before determining that DRA is the most appropriate. It is the
recommendation of the caseworker and their supervisor, based on their overall assessment, to place
the child into DRA.
Once the case is transferred to DRA, the same DCFS or private agency caseworker will
provide follow-up monitoring. In-home reviews are done semi-annually, rather than monthly. A
determination is made at this time whether the caregiver is complying with the terms of the DRA
placement and whether DRA should continue.
The DCFS formally grants authority to the caregivers to take the child out of the state for
up to thirty days without informing the Department; to obtain ordinary and routine medical and
dental care for the child; enroll the child in school or obtain educational services; to sign general
consent and waiver of liability forms for the child's participation in school field trips; and to manage
any funds provide for services for the children.
The caregiver receives a Delegated Relative Authorization Card, signed by the DCFS,
which sets forth the authority granted. This card can be presented by the caregiver to other
professionals when services are needed for the child.
The relative caregiver must be licensed as a foster care provider or approved as a relative
caregiver, with or without a waiver of standards. The licensing status of the caregiver determines the
amount of support they will receive. If licensed, they will receive the foster care board rate; if
unlicensed, they will receive the standard of needs rate.
The DRA placement will continue unless terminated by: a change in the permanent plan;
the child manifesting some extraordinary medical, mental health or educational needs that require
continuous case management services; the caregiver's expression that they no longer desire to
continue the placement; or the caregiver's failure to meet the requirements of the plan.
Since its inception on January 1, 1995, DRA was slowly integrated for use with eligible
families within the DCFS system. Although initially ambivalent, DCFS direct services staff and
69
private provider agencies began to expand the use of DRA. Approximately 500 children were in
DRA placements as of March 1, 1996. This number is not expected to increase in the near future,
while the subsidized legal guardianship waiver proposal is being considered by the Federal
government.
The future of the DRA program will be determined after the decision on the approval of
the subsidized guardianship proposal. If approval is given, many of the cases which qualify for DRA
may be placed in subsidized legal guardianship as the more permanent option. However, it is still
believed that DRA will have application, since the guardianship demonstration project limits the
number of families which may participate. If approval is not given, those families which were to be
included in the demonstration project would be considered for DRA.
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New Mexico²⁶
The administrators interviewed in New Mexico reported that their state does not have a
program of subsidized legal guardianship, despite the fact that the state had been identified as one of
ten states which did so. New Mexico law does in fact have provisions in its adoption code to extend
an adoption subsidy to placements with permanent guardians. However, the state's Department of
Children, Youth and Families Social Services Division does not currently use this option for
permanent guardians. Rather, they prefer to pursue adoptions in all cases in which reunification is
not possible. Many times, in cases involving kinship foster parents, "open adoptions" are performed.
New Mexico has a number of Native American placements, and the child welfare laws
reflect the unique cultural needs of this population. The preferential placement policies of the Indian
Child Welfare Act, as well as the preferences of the child's Indian tribe, are required to be
incorporated into every Native American child's dispositional placement plan.
The state has a Family in Need of Services Act which provides extensive services to
families at risk of having a child involuntarily removed. The Act also provides services to the birth
family and the child after the child is removed and placed in foster care.
When a child is placed in a foster home, the placement is for an initial period not to exceed
two years. Thereafter, hearings are held every six months to determine whether to continue the
placement.
Relatives are the first placement preference for a child entering care. The child's wishes
and those of the parents are also taken into consideration. An assessment is made regarding the
child's attachment to the prospective caregiver and the community, the mental and physical health of
the individuals involved and the availability of needed services. Relatives must be licensed as foster
parents to receive support.
26 Information presented for New Mexico's child welfare programs was obtained from the state's Children's Code,
Sections 32A-3B-1 to 32A-3B-21; Sections 32A-4-1 to 32A-4-30; Sections 32A-4-31 to 32A-4-32 (permanent
guardianships); 32A-5-43 to 32A-5-45 (subsidized adoptions); and telephone interviews with state DCYF
representatives.
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Permanent Guardianship
In New Mexico, any adult can petition the children's court to be appointed as guardian,
including relatives and foster parents. Agencies and institutions cannot be considered. To be eligible
for permanent guardianship, the child must have been adjudicated dependent; the Department must
have made reasonable but unsuccessful efforts to reunify the child with his or her parents; and
adoption is unlikely or not in the best interests of the child. The child does not have to have attained
a certain age to be considered.
The law provides that the establishment of permanent guardianship vests in the guardian
all rights and responsibilities of a parent, other than those of a natural or adoptive parent. The court
may incorporate provisions in the guardianship order for visitation with the
natural parents, siblings or other relatives of the child. The guardianship code further recognizes the
right of parents and the child to seek revocation of the guardianship order upon a significant change
in the circumstances of the parents or guardian.
Interestingly, the portion of the New Mexico statute pertaining to guardianship does not
contain language concerning the availability of a subsidy for permanent guardianship placements.
However, in the portion pertaining to adoption, the provision for subsidies to adoptive parents also
applies to permanent guardians. Specifically, a subsidy is available for those adoptive and
guardianship placements in which the child is "difficult to place," defined as a child who is physically
or mentally handicapped or emotionally disturbed or who is in special circumstances by virtue of age,
sibling relationship or racial background.
A subsidy agreement must be entered into before the decree of adoption or guardianship.
The amount of the subsidy is based on the needs of the child and is evaluated annually. The
Department is given authority to develop regulations for the administration of subsidized adoptions
and guardianships. As indicated, however, the Department does not currently subsidize
guardianship.
27 New Mexico Children's Code, Section 32A-5-45.
72
One administrator indicated that there are presently about seven children in "long-term
foster care," which is the identified permanent plan for these children. The foster families receive the
foster care level of support and have relaxed levels of Department supervision due to recognized
abilities of the caregivers to meet the ongoing needs of the children. These placements are still
technically foster care placements, though, and no court orders are made regarding parental or
custodial authority of the caregivers.
Additionally, there are approximately 1,600 children in DSS custody with the goal of
adoption or reunification; 200 in group homes; 200 in independent living arrangements (mostly
students over the age of 16); and about 1,400 in adoptive homes which receive state and federal
subsidy.
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CHAPTER 4
ANALYSIS OF THE STATE PROGRAMS
The programs of the ten states profiled in the previous chapter share many similarities in
the way they use subsidized legal guardianship. We attribute these similarities to the common
philosophies expressed by the administrators who created the policies that govern the programs. (A
summary of the primary characteristics of the states studied appears as Appendix C to this report.)
Eligibility Characteristics
One of the common views expressed is that guardianship is intended to serve as the
permanent plan only when efforts at reunification and adoption have failed and it is likely that the
child will otherwise remain in long-term foster care. Consequently, all the states initially require that
reasonable efforts be made to attempt reunification first. Thereafter, reasonable efforts should be
made to have the child adopted.
To allow sufficient opportunity to pursue reunification and adoption, most states require
that the child be in care for a period of time before becoming eligible for guardianship. During this
time, efforts at both reunification and adoption are made.
The length of time the child should be in care, prior to guardianship being pursued, varies
from state to state. To be precise, Alaska, Nebraska, South Dakota and Washington require six
months; California, Illinois and Massachusetts mandate one year; and eighteen months is the
requisite in Hawaii. While New Mexico does not include a minimum time period in their statute, in
practice, guardianships are not pursued unless the child has been in care for eighteen months.
Additionally, several of the states have minimum age requirements for children to be
considered for guardianship. This is due to the fact that younger children are more likely to be
74
adopted than older ones, and adoption is the preferred permanent placement option over
guardianship. The minimum age requirement for children in South Dakota is six; in Massachusetts
and Nebraska, it is 12; and in Illinois, the minimum age is 14. Massachusetts and Nebraska do make
exceptions for younger children who are part of a sibling group to be placed together, or who have
special needs, or when the prospective guardian is a relative. Alaska's program favors children over
the age of ten.
The remaining states have no minimum age requirement, but recognize the fact that
adoptions are more likely for younger children. Therefore, they typically pursue guardianships for
older children, unless there are younger children to be placed as part of a sibling group, or the
guardianship is otherwise in the best interests of the child (because of attachment to their guardian,
or the impracticality of reunification or adoption).
Another common thread among the state programs studied was the desire to make the
guardianship placement as permanent as possible. Therefore, the states make extensive efforts to
decide whether guardianship is the most appropriate permanency alternative prior to its
implementation. Meetings with the child, the birth parents and the prospective guardians are an
important part of this planning in order to be sure that all parties fully understand the process and its
goals.
The administrators and policymakers we interviewed recognized that guardianship is not
as "permanent" as adoption. This is true, since the birth parents can challenge the guardianship at
any time upon showing that their circumstances have changed so that they can resume custody. The
states, however, all hope to avoid disruption in the guardianship placement due to a lack of
attachment between the child and the guardian, or the inability of the guardian to effectively
supervise the child or meet their needs. Further manifestation of the desire for stability is that, while
guardianships can be pursued in all of the states without parental consent, it is nonetheless sought.
Such consent facilitates a more stable placement and allows the guardianship action to proceed more
expeditiously.
75
In fact, in Hawaii, guardianships will not be pursued unless sufficient evidence exists for
obtaining a termination of parental rights, or the parents consent to the same as well as to the
establishment of the guardianship. If the guardianship is subsequently disrupted, legal custody of the
child reverts to the state rather than to the natural parents.
The consent of the child is required in several states, if the child is over a certain age. In
Alaska, the child must consent if over the age of ten; in Massachusetts, the age is twelve; and in
Nebraska, New Mexico and Illinois, the age is fourteen. The child's consent is believed to reflect
his/her attachment to the guardian, an important element in avoiding future disruptions.
Moreover, most of the states encourage the visitation rights of the natural parents. The
laws of California, Illinois, New Mexico and Washington provide that visitation rights should be part
of the guardianship order, if it is in the child's best interests. In Massachusetts, parents are informed
that once guardianship is assumed, their visitation rights will be at the guardian's discretion. This
state will intervene in the visitation issue only if such a request is made by the parents or guardians.
Finally, two of the states, Alaska and Nebraska, have the requirement that children must
meet the definition of "hard to place" before being considered for a subsidized legal guardianship
placement. The definition "hard to place" is similar to the definition utilized in cases of subsidized
adoption, i.e., that the children are part of a sibling group, have severe mental or physical handicaps,
or are part of a minority group.
Policy and Procedural Characteristics
One important difference in the state programs is the court in which the guardianship
request is presented and ordered. In Alaska and South Dakota, guardianships are presented in State
Courts of general jurisdiction. Juvenile Courts have jurisdiction in California, Hawaii, Illinois, New
Mexico and Washington, while Probate Courts hear such cases in Massachusetts and Nebraska.
Interestingly, the overwhelming view of the administrators interviewed in all of the states
is that the Juvenile Court, as overseer of the case since the child's entrance into the system, is the
76
most appropriate court to make the guardianship decision. Those in Nebraska reported that
unnecessary delays and resistance to the establishment of guardianships have been encountered in
Probate Court. Contrary to this, in the states in which Juvenile Court has jurisdiction, the
guardianship petition can be presented at the dependency review hearings, thus expediting the
process.
All of the states possess a similar procedure for securing the guardianships. The initial
recommendation for guardianship is made by a caseworker after an assessment has been made of the
eligibility criteria set forth in each state's policy. Thereafter, a review of this recommendation is
made by various supervisors and administrators of the child welfare agency, as well as the parties to
the case.
Most of the states include the participation of the following individuals in this review
process: the caseworker and their supervisor; a permanency planning or adoption specialist; an
attorney of the social service agency assigned to the case; and a guardian ad litem for the child.
Contact is made with the birth parents (if possible), the prospective guardian, and the child, to inform
them of the guardianship process and other options available to them, and to seek their consent to the
guardianship.
Afterwards, in all states, the final decision to pursue the guardianship is made by the social
service agency staff; then, the guardianship petition is prepared and presented by the attorney to the
court. However, a difference previously pointed out is that in Hawaii, parental rights are terminated,
if not consented to, before the guardianship can proceed. Permanent custody is then transferred from
the natural parents to a permanent custodian, usually the child welfare agency.
If the guardianship is to be subsidized, every state requires that an application be made
prior to the guardianship hearing. In all states except California, a written subsidy agreement
between the state and the guardian must also be signed before the guardianship hearing.
Once the court awards guardianship, most of the states close the case to the system and all
services and intervention immediately cease. One exception to this lies in the state of Massachusetts,
77
where services are provided for three months after the guardianship decree is signed, in order to
determine the stability of the placement. Services are available after this time upon request only.
Another exception exists in some California counties, which continue support services and six-month
case reviews, including home visits to the guardians, but only if the guardians are not relatives of the
child are receiving a guardianship subsidy from the state.
Each state requires the guardians to submit a report or recertification of their
guardianship status at least annually, in order to continue to receive the subsidy. However, in
California, since the families continue to receive services and six-month reviews, annual recertification
is not required.
Subsidy Characteristics
A subsidy is not automatically granted in any of the states. A determination of the need for
the subsidy must initially be made in every state by the caseworker. He or she explores the needs of
the child; the available sources of support for the child from other government benefits or child
support from the natural parents; and any resources of the guardian, such as health benefits.
Once the basic determination is made that a subsidy is needed to support the guardianship
placement, the states vary in setting the amount to be paid. However, in practice, most families will
receive the full foster care rate, or close to it, as the amount of their subsidy.
Some states, such as Massachusetts, California, Hawaii, and Washington, set the starting
level of support at the current foster care rate, but then make reductions for any unearned income of
the child through other government benefits or other sources, (e.g. Social Security benefits or child
support payments.) Hawaii has a provision which reduces the amount of the subsidy by a percentage
of the income the child earns through employment. California only subsidizes non-relative
guardianships at the foster care rate. Relatives there can only receive AFDC relative payments, if
eligible.
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Illinois' current successor guardianship program sets the amount of support at $1.00 less
than the foster care board rate, and reduces this amount by other available support for the child. In
Alaska, New Mexico and Nebraska, the amount of the subsidy is determined by conducting an
analysis of the child's needs, including board payments, medical costs, legal costs incurred in the
assumption of guardianship, and after-placement services.
The available resources of the guardian are then assessed in these states, in order to
determine the extent to which the guardian can meet the needs of the child on his/her own.
Adjustments are also made for unearned income of the child, such as government benefits or child
support from parents. In most cases, these calculations will still lead to a sum similar or equal to the
foster care rate.
In South Dakota, the income of the guardianship family is taken into account when setting
the subsidy rate. If the guardian's family income is less than 60% of the state's median income level,
the support will be the foster care rate. If the income exceeds 60%, the amount of the subsidy is
reduced. Additionally, children who are receiving Social Security benefits are not eligible for the
subsidy.
Under the subsidy agreements in every state studied, annual reapplication or
recertification is required for continuation of these moneys. In Nebraska, New Mexico, and South
Dakota, the amount of the subsidy is also evaluated and recalculated each year.
By agreement in all states, the subsidy will be discontinued if the guardianship terminates
for any reason or the child is no longer being cared for in the guardian's home. In most states, the
guardianship terminates when the child reaches the age of majority (age 18 in all states except
Nebraska, in which the age is 19).
In Hawaii, the subsidy can continue past 18 if the child is still in high school and will
graduate in the current or next school year. The subsidy is also available there for children who are
enrolled full-time in college, until they reach the age of 22.
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Statistical Review
The number of children placed in subsidized legal guardianship programs in the states
studied is relatively low when compared to the total number of children in care. This is primarily due
to the fact that states do not receive federal reimbursement for the subsidies paid to guardians.
This characteristic is most evident in Illinois, where despite approximately 50,000 children
in care, only about 20 are in their successor guardianship program, due to the lack of federal
reimbursement. However, under the demonstration project in Illinois' IV-E Waiver Proposal
pending before the U.S. Department of Health and Human Resources, Illinois projects some 5,700
children to be placed in subsidized legal guardianships by the end of two years, for which Illinois
would receive Federal IV-E reimbursement.
Other states reported the following approximated numbers of open subsidized
guardianships cases: Alaska, 160; California, 300; Hawaii, 100; Massachusetts, 1,500; Nebraska,
291; South Dakota, 40; and Washington, 1,600.
Realizing the Benefits of Subsidized Legal Guardianship
States with successful programs of subsidized legal guardianship, and others considering
the implementation of such programs, realize the numerous benefits of this permanency planning
option, which include the following:
*
Children in guardianships experience more stable and
permanent placements than children in foster care.
*
Many caregivers, particularly kinship caregivers, do not
require the services and intervention of the social service
agencies which are part of foster care placements; yet
adoption may not be the best option for the child or the
caregiver. The guardianship arrangement meets the needs of
this population.
*
Subsidized legal guardianship allows state agencies to close
cases which do not require their services, saving millions
of dollars each year in administrative costs.
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To elaborate, administrators reported that children placed in guardianships experienced a
greater sense of stability and security than children in foster care placements. This is especially true
with older children, who were part of the process of establishing the guardianship. In addition,
caretakers exhibited greater commitment and responsibility after entering into guardianship
agreements. Representatives in Massachusetts and Nebraska, two states which have been subsidizing
guardianships for over a decade, expressed the opinion that in many cases, the foster parent is
capable of providing care and making decisions for the child without the need of services and
intervention. This is often the case for relative caregivers, with whom the children typically bond
more easily. Additionally, these caregivers are not always willing or able to adopt the children
because of practical or cultural reasons. For example, kinship foster parents are often reluctant to
adopt the children in their care because of the necessity of terminating the rights of the natural
parent, a relative of the caregiver. In states such as New Mexico, Washington, and South Dakota,
there are large numbers of Native American children in the system. Adoption is not an accepted
practice in the Native American culture. Therefore, when caregivers are able to provide care
without departmental intervention but cannot adopt the child, the permanency option of guardianship
becomes the most viable one. However, many caregivers are unable to assume guardianship without
the financial support they receive as foster parents. In states without a program of subsidized legal
guardianship, children in such placements usually will remain in foster care.
States which are considering implementing programs of subsidized legal guardianship, i.e.,
Illinois and Colorado, have recognized the reality of the need to use relatives as caregivers and the
reduced likelihood that these caregivers will adopt the children in their care.
Representatives noted that the number of children entering the system because of abuse
and neglect far outnumber the available traditional foster and adoptive homes. They also stated that
today's relative caregivers need new and innovative permanency options, like subsidized legal
guardianship, so that their needs can be met. A Colorado administrator expressed the view that too
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often, fiscal policy dictates what social programs can be used, rather than the need for social
programs dictating fiscal policy.
Administrators in all of the states with subsidized guardianship programs relayed
resulting cost savings in the form of reduced administrative and program costs. This was
accomplished through closing these cases as foster care placements.
Overall cost savings are realized in states such as Massachusetts and Nebraska, even
though they receive no federal reimbursement. In fact, a representative in Massachusetts believed
that as much as $10,000 per year per case was saved in administrative cost reductions (in transferring
the case from foster care to guardianship). Similarly, a representative in Illinois estimated savings of
$6,000 per year per case.
Most of the dollars saved come from the reduction of casework. In addition, resources are
saved by the elimination of judicial reviews, which must occur in foster care cases. Decreasing the
number of foster care cases will also result in saving money paid to private agencies who provide
services to foster families.
Illinois administrators believe that the Federal reimbursement suggested in the IV-E
Waiver Demonstration Project would result not only in cost neutrality to the State and Federal
systems, but an actual savings over the cost of maintaining the children in foster care.
How States Respond to Criticisms of Subsidized Legal Guardianship
Several criticisms of subsidized legal guardianship have limited its widespread use. Critics
have argued that:
*
Subsidizing guardianships will increase the cost of child welfare services to states.
*
Guardianship is not really a permanent plan, since it can be challenged at any
time by birth parents and is easily disrupted, resulting in the return of children
to the system.
*
Subsidizing legal guardianships, especially in kinship cases, discourages birth
parents from seeking to remedy the problems which caused the initial removal
of their children.
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*
Subsidized legal guardianships will be abused by birth parents and kinship
caregivers to obtain greater financial support than that offered by public
assistance, while avoiding the intervention and regulations of child welfare
agencies.
However, states with successful subsidized legal guardianship programs related how their
programs effectively deal with the above criticisms.
* Concern: Does subsidized legal guardianship increase the cost of providing child welfare services to
the state?
As outlined in the previous section, some states fear that subsidized legal guardianship
will increase the costs of providing child welfare services, especially if no federal reimbursement can
be obtained. Others believe the administrative cost savings more than make up for the lack of such
reimbursement. Another concern is that if children are placed in subsidized legal guardianship homes
at a relatively young age, they will likely stay in that placement and support payments would continue
for a long time. Therefore, the amount expended by these states on guardianship subsidy payments
would continue to rise.
When presented with the above viewpoint, administrators in states with successful
subsidized guardianship programs point out that such fears overlook an important fact. That is,
guardianship should only be sought when reunification and adoption are not viable options, which
leaves long-term foster care as the only other option in states without subsidized guardianship.
They brought to our attention that these children would remain in long-term foster care
for the same length of time as they would remain in subsidized guardianship. Foster care costs to the
state are higher than those related to subsidized guardianship, due to the administrative and judicial
review costs associated with foster care which do not apply in guardianship.
* Concern: Guardianship is not really a permanent plan since it can be challenged at any time and is
easily disrupted, resulting in the return of children to the system.
All of the states interviewed agree that guardianship is not as "permanent" an option as
adoption. In fact, the states of California, Hawaii and New Mexico are not presently pursuing
83
subsidized guardianships with much frequency because of this factor. However, other states, such as
Massachusetts, Illinois and Colorado, recognize that adoptions often cannot be utilized because of the
unwillingness of relative caregivers to agree to adoption. In states with Native American children in
care, adoption is not a culturally accepted alternative.
They also recognize that the termination of parental rights is not always in the best interest
of the child when there is still a strong bond between the parents and the child. In such cases,
guardianship is more permanent than the next alternative, foster care.
Further, all of the states with subsidized guardianship programs require a case review to
determine the appropriateness of guardianship. It is during this time that the intent of guardianship
to be a permanent plan is stressed to the parties. Then, agreements and consents are signed which
reflect this fact.
In Hawaii, the social service agency puts forth an extraordinary effort to ensure that the
parties appreciate the permanence sought by the establishment of guardianship. Termination of the
parental rights is sought, and permanent custody is awarded to a another party or the agency, prior
to guardianship being established.
Good casework can also help to avoid future disruptions of guardianships. The
identification of special physical, mental, emotional, educational or other needs of the child, for which
state services would be needed, should typically disqualify the case from consideration for
guardianship. An exception would be if the guardian agrees to, and is able to, meet such needs by
themselves. An examination of this factor is required by the statutes of Hawaii and Nebraska.
* Concern: Subsidizing legal guardianships, especially kinship ones, discourages birth parents from
seeking to remedy the problems which caused the initial removal of their child.
When this concern was presented to the administrators in each of the states, many of them
told us they had heard this concern before. The scenario feared is that a parent, perhaps a very
young one who addicted to drugs, will have less of an incentive to rehabilitate herself if she knows
that her child is safe and being cared for by a trusted relative. This would be especially true, it is
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believed, when the relative would be receiving greater financial support through guardianship than
the parent could provide through employment or public assistance.
In response, the administrators pointed out that it is the children who are the main focus
of the system. Therefore, if the parent is unable to safely care for the child, the social service agency
does not have a choice: they must remove and care for the child. At the same time, the system should
attempt to provide services to the birth parent to help him/her rehabilitate. Again, with good
casework, if the social service agency becomes aware that the birth parent is capable of caring for the
child, reunification should be able to occur.
More importantly, none of the states reported any documented cases of this type. In
addition, none of the administrators knew of any research which indicated that this practice is
pervasive in the system. Unfortunately, as one pointed out, it is usually not the comfort of knowing
that their children are taken care of which prevents most birth parents, especially drug-addicted
ones, from regaining custody of their children.
* Concern: Subsidized legal guardianships will be abused by birth parents and kinship caregivers to
intervention and regulations of child welfare agencies.
obtain greater financial support than they can get from public assistance, while avoiding the
The administrators interviewed were also familiar with the above concern. One
representative from Massachusetts stated that this opposition was voiced in the state legislature
based on the view that the guardianship subsidy served as a welfare subsidy for many participants.
Critics argue that birth parents and relatives would conspire to the consent of the assumption of
guardianship by the relative, in order for the latter to receive the greater guardianship board rate
than the parent could receive for the child on welfare. Then, without agency supervision, the birth
parent could regain physical custody, raise the child, and receive the benefit of the higher support
payment.
While administrators in Massachusetts acknowledge that this may happen in some cases in
their system, they doubt that it is a widespread practice. Currently, the state requires that an annual
85
recertification application be made, in which the guardian must sign and swear to their continued
care of the child. The department also has the ability to cross-check other state computer systems to
determine if benefits are being paid for the same child by different agencies or branches. However,
they believe that efforts could be made to step up the verification of the guardianship conditions.
All of the other states with subsidized guardianship also require an annual renewal
application for the subsidy, which call for certification by the guardians of their continued
qualification to receive the guardianship subsidy.
In addition, all of the states require that the child must be adjudicated dependent and be in
foster care for a period of time, prior to the assumption of guardianship. The length of time ranges
from six to eighteen months. This means that family preservation and reunification efforts are made,
the relative caregiver must undergo foster care training and certification, and actually serve as a
foster parent for a period of time before guardianship can be considered. This process provides
ample opportunity for the social service agency to assess the family, as well as the need to have the
child enter the system in the first place. It also discourages those who might be looking for a "quick
buck."
Conclusion
The states with active subsidized legal guardianship programs, i.e., Alaska, Massachusetts,
Nebraska and Washington, reported success in providing both stability and permanence for children
who had limited alternative permanency options. They have also realized significant cost reductions
in the form of administrative savings from closing cases. Subsidized legal guardianship is viewed by
administrators as the permanency option which best meets the needs of kinship caregivers, who are
often able to provide care for the children without government supervision, but who require financial
assistance in order to do so.
Four of the states studied, California, Hawaii, New Mexico and Illinois, have subsidized
guardianship programs on the books, but do not widely use them. The first three states cite the lack
of true permanence in guardianship as the main reason for not widely pursuing this option. Instead,
86
they prefer to seek adoptive homes for the children in their care. Illinois cites the lack of a federal
reimbursement as the biggest impediment to using subsidizing guardianship.
As more and more states experience increasing foster care caseloads and a growing use of
relative caregivers, subsidized legal guardianship will be examined more closely. It is likely then that
more pressure will be placed on the Federal government to participate in the financial support of
guardianships as they already do with foster care and adoption. Such participation would likely
increase the use of guardianships across the country.
87
BIBLIOGRAPHY
Child Welfare League of America. "Guardianship: A Legal Solution
with Flex." Children's
Voice, 9, 10 (Summer 1995).
Child Welfare League of America. "Kinship Care: A Natural Bridge." Washington, DC (1994).
Courtney, Mark. "The Foster Care Crisis and Welfare Reform: How might reform efforts affect the
foster care system?" Public Welfare, 27-33 (Summer 1995).
Dubowitz, Howard, M.D. "Children in Kinship Care: How Do They Fare?" Children and Youth
Services Review, Vol. 16, Nos. 1/2 (1994).
Illinois Department of Children and Family Services. "Illinois Title IV-E Waiver Request." Chicago
(July 1995).
Illinois Department of Children and Family Services and Human Service Technologies. "Delegated
Relative Authority Training Manual." Chicago (1995).
Karraker, David; Hornby, Helaine; and Zeller, Dennis. Kinship Care in America: A National Policy
Study. Maine: Edmund S. Muskie Institute of Public Affairs for the U.S. Children's Bureau (June
1995).
Leashore, Bogart. "Demystifying Legal Guardianship: An Unexplored Option for Dependent
Children." Journal of Family Law, 391-400 (1984-1985).
Maluccio, Anthony; Fern, Edith; and Olmstead, Kathleen. Permanency Planning for Children, New
York: Tavistock Publications (1986).
National Center of Child Abuse and Neglect. "Child Maltreatment 1992: Reports from the states to
the National Center on Child Abuse and Neglect." (April 1994).
Schwartz, Meryl. "Reinventing Guardianship: Subsidized Guardianship, Co-Guardians and Child
Welfare." New York: Vera Institute of Justice (June, 1993).
Takas, Marianne. "Kinship Care: Developing a Safe and Effective Framework for Protective
Placement of Children with Relatives." Children's Legal Rights Journal, (Spring 1992).
Takas, Marianne. Kinship care and family preservation: A guide for states in legal and policy
development. Washington, DC: American Bar Association Center on Children and the Law (1993).
Thornton, Jesse. "Permanency Planning for Children in Kinship Foster Homes." Child Welfare
70(5)., 593-601 (September/October 1991).
88
U.S. Department of Health and Human Services, Administration for Children and Families. "Child
Welfare Waiver Demonstrations Pursuant to Section 1130 of the Social Security Act, Titles IV-E and
IV-B of the Act." Federal Register, Vol. 60, No. 115, 31478-31483 (June 15, 1995) and Vol. 60, No.
173, 46616-46620 (September 7, 1995).
U.S. Department of Health and Human Services, Office of the Inspector General. State Practices in
Using Relatives for Foster Care. Washington, DC: HHS (July 1992).
U.S. Department of Health and Human Services, Office of the Inspector General. Using Relatives for
Foster Care. Washington, DC: HHS (July 1992).
Wheat, Frances and Herskowitz, Julia. An Evaluation, The Massachusetts Guardianship Program -
An Innovative Approach to Permanency Planning. Boston: Massachusetts Department of Social
Services. (1986).
Williams, Carol. Legal Guardianship: A Permanency Option for Children. Paper presented at
conference, Protecting the Children of Heavy Drug Users, American Enterprise Institute,
Washington, DC, July 18-21, 1991.
APPENDICES
APPENDIX A
RESEARCH VEHICLE
BACKGROUND INFORMATION
How old is your agency?
What law governs your agency?
How many children do you have in care to date (Foster Care)
How many children are in formal Kinship Care/Informal Kinship Care?
Reunification statistic % of children returning (Avg. of children returning to Birth
Parents)
Percentage of children adopt each year
Percentage of children placed in Legal Guardianship
Percentage of children in long-term Foster Care?
Agency mission philosophy, level of support, Kinship family and other
Programs offered to families and children
Relationships with external systems (e.g. Mental health, Dept. of Public Assistance)
Organizational Structure/Whether State or County Administered System
How does your system work?
Operating Budget, Sources of Revenue (Explain State & County)
Written materials - please provide
Programs offered to children and families?
Relationships with external systems (e.g. Mental health, Dept. of Public Assistance)
Organizational Structure/Whether State or County Administered System?
How does your system work?
Operating Budget, Sources of Revenue (Explain State & County)
Written materials - please provide
OBJEC TIVES
Subsidized Legal Guardianship study related to Kinship Study Care has research five
(5) objectives:
Objective 1: To examine the various ways Subsidized Legal Guardianship policies.
are used with Kinship Care families.
Objective 2: To explore Legislation/ Regulations under consideration for subsidized
Legal Guardianship.
Objective 3: To analyze the role of Subsidized Legal Guardianship as a Permanency
Planning option and its impact on Kinship Triad (Child, birth family,
and foster family).
Objective 4: To explore the impact of Subsidized Legal Guardianship on the Child
Welfare System.
Objective 5: To formulate recommendations and policy options for child welfare
agencies exploring Permanency Planning options
for children placed in Kinship Care.
OBJECTIVE 1
To examine the various way subsidized Legal Guardianship are used relative
to Kinship Care families.
Questions:
How does the program work?
a. What are the laws and regulations that allows for Subsidized Legal
Guardianship in your state?
b. How long has your program been in existence?
c. How many children have had the permanency option of Legal Guardianship?
d. How is Legal Guardianship selected as the plan for the child?
e. How long and under what circumstances is the child required to be in foster
care before eligible?
f.
Does a family need to be certified in your state as a foster parent?
*Does a family have to go through a certification/approval process to be
considered for Legal Guardianship?
g. What is your responsibility to the child family once in the system and
Subsidized Legal Guardianship becomes the goal?
* The sources of the funds used for compensation?
*
Whether the state has realized cost savings with the program,
if so, at what percentage?
* The interest of the involvement required of the state and counties
qualifications, risk assessment and periodic reviews?
* Public and legislative reaction and opinion on the creation and
maintenance of the program
* Is the subsidy tied to the needs of the family (i.e. does the family have
to demonstrate a need for financial assistance?)
h. How does your program address abuse of the system by families (relatives/birth
families getting together to get higher payments)?
OBJECTIVE 2
To explore Legislation/Regulations under consideration-for Subsidized Legal
Guardianship.
Questions:
Do you know if any laws or organizations that are currently addressing the Kinship
Care issues?
If so, what is your state's involvement?
Do your state representative sit on any policy, planning and development committee
on Kinship Care issues?
Future plans for policy development?
OBJECTIVE 3
To analyze the role of Subsidized Legal Guardianship as a permanency planning
option and its impact on the Kinship Triad.
Questions:
How has Subsidized Legal Guardianship been accepted by both the agency and its
participants?
What are the numbers related to families who have selected this option rather then
adoption /reunification-How many were Kinship family - number of children
represented?
What impact has this had on the child (Attachment disorder, behavior disorder,
siblings relationship)?
* How does it compare to those children placed in traditional care?
* How does it compare to those children placed in birth family care?
* How does it compare to those children placed in Kinship foster family?
How long does a child remain in the system before Subsidized Legal Guardianship
becomes the permanency plan option?
What involvement does the Kinship Care family have with the child system once the
Subsidized Legal Guardianship has been completed. (i.e. Is the review process
mandated/?
What level of support does the child welfare system or its provider community offer
to the Kinship family?
How many children who had the planning option of Subsidized Legal
Guardianship have re-entered the system?
OBJECTIVE 4
To explore the impact of Subsidized Legal Guardianship on the Child Welfare System.
Questions:
What has this done to your agency?
What effect has Subsidized Legal Guardianship had on the director and staff?
What staff patterns have you had to incorporate to meet the needs of the Kinship Care
population?
What staff patterns have you had to incorporate to meet the needs of the Kinship Care
budget?
What staff patterns have you had to incorporate to meet the needs of the Kinship Care
court system?
What staff patterns have you had to incorporate to meet the needs of the Kinship Care
Community Based Resources (Private providers)?
Does the organization cultural within the agency support the Kinship Care System? If
no, why? If yes, how?
RECOMMENDATIONS
To formulate recommendations for child welfare agencies exploring Permanency
Planning options for children placed in Kinship Care.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
Does the external organization cultural associated with the agency support Kinship
Care? If no, why? If yes, how?
APPENDIX B
STATE STATUTES AND REGULATIONS
ALASKA
7 AAC 53.130
HEALTH AND SOCIAL SERVICES
7 AAC 53.140
vacation outside this state with a foster child will continue to receive
"Alaska" rates set under 7 AAC 53.030 - 7 AAC 53.060, as appropri-
ate, for up to 30 days.
(b) The standard. rate to be paid to a foster parent residing in
another state and caring for a child in Alaska's custody is the foster
care rate established by the city, county, or state in which the foster
parent resides, depending on which government unit supervises the
foster care placement. The division will, in its discretion, authorize
specialized care and payment of ongoing direct costs.
(c) The out-of-state rate under (b) of this section applies 30 days
after a family is residing in another state. The division will not pay the
"Alaska" rate, under (a) of this section, for more than 60 days after the
date of departure from the Alaska residence. (Eff. 11/23/78, Register
68; am 7/1/90, Register 114; am 11/16/94, Register 132)
Authority: AS 47.10.230
Editor's note: The substance of 7 AAC
53.120 was formerly contained in 7 AAC
50.800.
7 AAC 53.130. RATE REDUCTION. Repealed. (Eff. 11/23/78,
Register 68; am 7/1/90, Register 114; repealed 11/16/94, Register 132)
Editor's note: Effective in Register
132, the substance of 7 AAC 53.130 was
moved to 7 AAC 53.030(e).
7 AAC 53.140. DEFINITIONS. In 7 AAC 53.010- 7 AAC 53.140,
(1) "child's placement plan" means a plan developed to ensure
appropriate goals and objectives for a child placed in foster care,
including identification of the person responsible for implementing
provisions of the plan; however, a placement plan is not a full case
plan for a family with a child in foster care;
(2) "department" means the Alaska Department of Health and
Social Services;
(3) "division" means the division of family and youth services of
the Alaska Department of Health and Social Services;
(4) "foster care" means care and services provided to a child in a
foster home licensed under 7 AAC 50.005 - 7 AAC 50.990;
(5) "foster parent" means an individual providing care in a li-
censed foster home for children who are in the custody of the
department and who are placed by the division;
(6) "placed" means put in a foster home under authority of the
department;
(7) "representative of the division" means a social worker, social
services associate, probation officer, or other staff member of the
division with authority to authorize purchase of foster care;
9
ARTICLE 2. SUBSIDIZED ADOPTION AND SUBSIDIZED
GUARDIANSHIP PAYMENTS.
Section
Section
200. Purpose
230. Unearned income of an adoptive or a
210. Procedure
guardianship child
220. Adoption and guardianship subsidy
240. Medical expenses
payment
250. Definitions
7 AAC 53.200. PURPOSE. The purpose of subsidized adoption and
guardianship is to facilitate the placement of a child with special
needs, who is hard to place and in the custody of the department, by
providing a negotiated amount of financial assistance to an adoptive
parent or guardian for meeting the child's special needs. (Eff. 7/1/90,
Register 114; am 11/16/94, Register 132)
Authority: AS 13.26.062
AS 25.23.230
AS 47.10.230
AS 25.23.190
7 AAC 53.210. PROCEDURE. (a) The division will make the
determination that a child has special needs and is hard to place.
(b) An adoptive parent or guardian applicant shall
(1) apply to adopt or become a guardian to a child with special
needs; and
(2) cooperate with the division's evaluation in determining if the
applicant meets accepted standards as an adoptive parent or guard-
ian by means of a home study.
(c) Upon accepting a child with special needs into the person's home
for adoption or guardianship, the adoptive parent or guardian shall
(1) enter into a subsidized adoption or guardianship agreement
with the division; and
(2) annually apply for subsidy reevaluation. (Eff. 7/1/90, Register
114; am 11/16/94, Register 132)
Authority: AS 13.26.062
AS 25.23.220
AS 25.23.230
AS 25.23.200
10
7 AAC 53.220
HEALTH AND SOCIAL SERVICES
7 AAC 53.250
7 AAC 53.220. ADOPTION AND GUARDIANSHIP SUBSIDY
PAYMENT. (a) The division will provide subsidized adoption and
guardianship payments subject to available funding. The amount of
the payment will be determined through an agreement between an
adoptive parent or guardian and the division, taking into account the
circumstances of the parent or guardian and the needs of the child. The
amount may be readjusted periodically to fit the changing needs of the
child and the circumstances of the parent or guardian. However, in no
case may the amount of the payment exceed the foster care payment
which would have been paid during the period of the child were in a
foster home. For an adoptive parent or guardian who lives or moves out
of state, 7 AAC 53.120(b) and (c) will apply.
(b) The division will pay the negotiated monthly rate at the begin-
ning of the month for which payment is intended.
(c) The division will pay on a scheduled payment basis according to
the subsidy agreement. (Eff. 7/1/90, Register 114; am 11/16/94, Regis-
ter 132)
Authority: AS 13.26.062
AS 25.23.220
AS 25.23.230
AS 25.23.210
7 AAC 53.230. UNEARNED INCOME OF AN ADOPTIVE OR A
GUARDIANSHIP CHILD. The division will arrange for the un-
earned income of children in department custody that was formerly
received by the division and applied to the cost of foster care to be sent
directly to the adoptive parent or guardian upon finalization of the
adoption or guardianship. The division will consider this income when
it determines the subsidy rate under 7 AAC 53.220. (Eff. 7/1/90,
Register 114; am 11/16/94, Register 132)
Authority: AS 13.26.062
AS 25.23.230
7 AAC 53.240. MEDICAL EXPENSES. If applicable, the division
will assist the adoptive parent or guardian in applying for Medicaid
benefits for the child. If a child is not Medicaid eligible, and medical
costs are a factor in the individual's ability to adopt or become a
guardian, the division will consider the medical need when it deter-
mines the subsidy rate under 7 AAC 53.220. (Eff. 7/1/90, Register 114;
am 11/16/94, Register 132)
Authority: AS 13.26.062
AS 25.23.230
7 AAC 53.250. DEFINITIONS. In 7 AAC 53.200 - 7 AAC 53.250
(1) "adoptive parent," and "adoptive parent applicant," means
(A) an individual, including a foster/adopt individual, who has
applied to adopt a child with special needs, where the child's birth
parents' rights have been relinquished or terminated and the child
is in the custody of the department;
11
7 AAC 53.300
ALASKA ADMINISTRATIVE CODE
7 AAC 53.310
(B) an individual, including a foster/adopt individual, who has
applied to adopt a child with special needs who is in the custody of
the department, where adoption is the plan, but the child's birth
parents' rights have not yet been relinquished or terminated and
the individual is aware of the legal risk that the adoption might
not be finalized; or
(C) an individual who has adopted a child with special needs
and who is receiving subsidized adoption payments;
(2) "child with special needs" and "child with special needs who is
hard to place" mean the same as "hard to place child" as defined in
AS 25.23.240;
(3) "department" means the Alaska Department of Health and
Social Services;
(4) "division" means the division of family and youth services of
the Alaska Department of Health and Social Services;
(5) "foster/adopt individual" means a foster parent who is inter-
ested in adopting a child and who is currently providing care in a
licensed foster home for children in custody of the department.
(6) "guardian" and "guardian applicant" means an individual who
has qualified as, or has applied to be, a guardian of a minor under
court appointment, but excludes an individual who is a guardian ad
litem. (Eff. 7/1/90, Register 114; am 11/16/94, Register 132)
Authority: AS 13.26.062
AS 25.23.230
STATE OF ALASKA
PROGRAM: CHILD PROTECTIVE SERVICES
DEPT OF HEALTH & SOCIAL SERVICES
CHAPTER: 3.0 PERMANENCY PLANNING
DIVISION OF FAMILY & YOUTH SERVICES
SECTION:
3.26
3.26 SUBSIDIZED GUARDIANSHIP
AUTHORITY: AS 25.23.200, AS 25.23.220, AS 25.23.240 (7) ;
AS 47.10.230 (d)
POLICY: The Division may make subsidy payments to guardians of
children who are in DFYS custody at the time the guardianship plan
is made, if guardianship is the permanent plan for the child, the
subsidy is recommended by the Permanency Planning Staffing Team,
the child meets the criteria established, and the family has an
approved guardianship study.
a.
Criteria For Children
1.
Children must be considered hard to place under the state's
definition in order to be considered for subsidized
guardianship. A hard to place (special needs) child is
defined as a minor who is not likely to be adopted by reason
of physical or mental disability, emotional disturbance,
recognized high risk of physical or mental disease, age,
membership in a sibling group, racial or ethnic factors, or
any combination of these conditions.
2.
Since adoption generally offers a higher degree of
permanency for the child, adoption is generally the
preferred choice for children under the age of ten.
Therefore, the child must also meet one of the following
criteria to be eligible:
A. For children over the age of ten, in order of
preference, which is based on the highest degree of
permanence for the child:
1.
The child is not legally free for adoption, but
desires a guardianship plan and the birth parents
agree and/or prefer guardianship; or
2.
The child is legally free for adoption but does
not want to be adopted or adoption does not
appear to be feasible; or guardianship is
preferred over adoption due to compelling cultural
or other reasons (see Section 3.26 (a) (2), (B) (3) ;
Date of Issue: July 1, 1990
Superceded by:
266
266
STATE OF ALASKA
PROGRAM: CHILD PROTECTIVE SERVICES
DEPT OF HEALTH & SOCIAL SERVICES
CHAPTER: 3.0 PERMANENCY PLANNING
DIVISION OF FAMILY & YOUTH SERVICES
SECTION: 3.26
or
3.
The child is not legally free for adoption and
agrees to guardianship, and the birth parents,
although they will not agree, are not likely to
interfere with the guardianship plan (as based on
previous experience with them.)
B.
Children under the age of ten will only be considered
for subsidized guardianship if:
1.
The child is part of a sibling group where one or
more children is over the age of ten and the plan
is for the sibling group to remain together under
the guardianship of the proposed guardian; or
2.
The child is seriously disabled, has developed
an attachment to the current caretaker, and the
caretaker is willing to become the guardian; or
3.
There are compelling cultural or other reasons
which make guardianship the preferred choice over
adoption. Cultural reasons could include, for
example, the Native American child who is placed
with a close relative of his birth parents. Often
the relative is very willing to provide a
permanent home, but because Native culture
traditionally did not require termination of
parental rights and because proceeding with
termination would cause a deterioration in the
relationships, the relative family as well as the
birth parent prefers guardianship as the permanent
plan. The case must be evaluated by the principle
of assuring permanence from the child's
perspective.
All subsidized guardianships of children under the
age of ten must be approved by the RSSM after the
Permanency Planning Staffing Team has made the
recommendation. The primary factor to be
considered is whether the plan will reasonably
assure permanence for the child.
Date of Issue: July 1, 1990
Superceded by:
267
267
STATE OF ALASKA
PROGRAM: CHILD PROTECTIVE SERVICES
DEPT OF HEALTH & SOCIAL SERVICES
CHAPTER: 3.0 PERMANENCY PLANNING
DIVISION OF FAMILY & YOUTH SERVICES
SECTION:
3.26
C.
Guardianship must be the Permanent Plan for the child,
not a temporary arrangement pending changes in parental
behavior. However, open contact with birth parents in
guardianship arrangements is encouraged in all cases
except where birth parents would seriously interfere
with the permanence of the placement.
b.
Requirements for Families
In order to become guardians, families must:
1.
have cared for the child a minimum of six months, or
have previously cared for the child at least six
months, in order to assess adjustment and attachment
in the family; and
2.
agree to assume guardianship and provide a stable home
for the child until he/she reaches age 18; and
3.
receive an approved guardianship study; and
4.
sign the Subsidized Guardianship Agreement; and
5.
agree to make yearly reports to the court as well as
to the Division at the time of the yearly renewal of
their Subsidy Agreement.
C.
Legal Issues
When parental rights have not been terminated, it is
necessary to exercise caution and implement the plan only
after careful consultation with parents, AGs, and the
proposed guardians to assure that either the natural parent
agrees with the plan or will not interfere with the
permanence of the arrangement. Contested guardianships
should only be entered into after careful consultation with
AG and Permanency Planning Staffing Team. The worker should
include in the guardianship petition the request to transfer
residual parental right, if any, to the guardian. The
worker should also ensure that the order provides for notice
to DFYS in the event that the parent seeks to have the
Date of Issue: July 1, 1990
Superceded by:
268
26
STATE OF ALASKA
PROGRAM: CHILD PROTECTIVE SERVICES
DEPT OF HEALTH & SOCIAL SERVICES
CHAPTER: 3.0 PERMANENCY PLANNING
DIVISION OF FAMILY & YOUTH SERVICES
SECTION: 3.26
guardianship set aside.
d.
Medical Insurance
Subsidized guardianship is entirely state funded.
Consequently it does not carry any Medicaid benefits for the
child, even if the child was previously IVE eligible. The
only way a child can continue to receive Medicaid under
subsidized guardianship is if he qualifies for SSI based on
both his handicap and the income of the guardians.
Consequently, guardians should be advised to contact their
insurance provider to see if a ward will be covered under
their current plan. If not covered, or requiring an
additional fee, that cost should be considered in
determining the subsidized guardianship payment.
e.
Disruption of Placement
The possibility of disrupted guardianships exists. Birth
parents may challenge the guardianship legally, after it is
awarded by the court. This risk needs to be clear to the
guardians, although the birth parents would have to obtain
the services of an attorney and file action in the court.
A Guardian ad Litem would be appointed, but the guardians
would have to hire their own attorney. If guardians want to
end their guardianship, the Division would only become
involved as in any other intake. Guardians should understand
that future counselling or other services may be needed, and
these services should be anticipated in negotiating the
amount of the guardianship subsidy.
PROCEDURES:
a.
Recommendation to and approval by the Permanency Planning
Staffing Team of guardianship as the goal, and a subsidy
is recommended. If the child is under ten, contact Central
Office (Adoption Coordinator) for review of and approval of
the plan.
b.
Complete discussions with the child, the proposed guardians,
and the birth parents to ensure agreement with the plan.
Date of Issue: July 1, 1990
Superceded by:
269
269
STATE OF ALASKA
PROGRAM: CHILD PROTECTIVE SERVICES
DEPT OF HEALTH & SOCIAL SERVICES
CHAPTER: 3.0 PERMANENCY PLANNING
IVISION OF FAMILY & YOUTH SERVICES
SECTION:
3.26
C.
Complete the guardianship study on the proposed guardians.
The study follows the format outlined in adoptive studies,
section 36.6.
d.
Coordinate with the AG to file guardianship petition in the
court system, and completion of any required documentation
by the court. In some cases guardianship may be stipulated
by all parties. Be sure guardians understand their legal
obligations as guardians, as well as the fact that after the
guardianship is awarded and DFYS custody ends, the AG can
no longer represent the case. Any subsequent court actions
would require the guardians to obtain their own attorney.
If time constraints prevent the AG from taking action,
proposed guardians may obtain their own attorney and file
the court action.
e.
Submit to the Regional Adoption Specialist, the Nomination
for Adoption or Guardianship Subsidy (06-9726), Ethnic
Documentation (06-9736), and the signed Subsidized
Guardianship Agreement (06-9738) for each child. The amount
of subsidy recommended should be negotiated with the
proposed guardians, based on the needs of the child. (See
section 3.30 Subsidized Adoption) In no case shall it exceed
the current foster care rate for that child. ICWA
documentation, according to the adoption preferences stated
in ICWA and including evidence of the tribe's knowledge of
the child's placement with the family, should be submitted
at this time. (ICWA Documentation (06-9737) with
attachments.)
f.
The Regional Adoption Specialist will review, approve and
submit the subsidy paperwork to the RSSM for approval, then
to the Adoption Coordinator in Central Office.
g.
The Adoption Coordinator in Central Office will review the
forms for completeness and final approval. Workers will be
sent a notice of clearance so they can proceed with the
guardianship in court. The worker and the AG can document
to the court that the Division agrees to drop custody if the
guardianship is awarded. It is not legally necessary to have
Division consent, but if difficulties arise contact the
Adoption Coordinator for assistance.
Date of Issue: July 1, 1990
Superceded by:
270
270
STATE OF ALASKA
PROGRAM: CHILD PROTECTIVE SERVICES
DEPT OF HEALTH & SOCIAL SERVICES
CHAPTER: 3.0 PERMANENCY PLANNING
DIVISION OF FAMILY & YOUTH SERVICES
SECTION: 3.26
h.
The subsidy file will be held until the court order of
guardianship is submitted to Central Office. Guardianship
subsidy payments will be initiated the month following the
receipt of the guardianship order in Central Office.
i.
Guardianship Agreements are renewed annually by the
guardian (s) and the Division, through the Adoption
Coordinator in Central Office.
j.
The worker will close the case when the court has ordered
transfer of custody from the Division to the guardian (s)
and the guardianship order has been sent to Central Office.
Date of Issue: July 1, 1990
Superceded by:
271
271
HAWAII CHILD PROTECTIVE ACT
§587-73 Permanent plan hearing. [.-mendment effective January 1. 1993
(a) At the permanent plan hearing. the court shall consider fully all relevant prior and
current information pertaining to the safe family home guidelines. as scl forth in section
587-25. including. but not limited to. the report or reports submitted pursuant to section
587-40. and determine whether there exists clear and convincing evidence that
(1) The child's legal mother. legal father. adjudicated. presumed. or
concerned natural father as defined under chapter 578 are not presently
willing and able to provide the child with a safe family home. even with
the assistance of a service plan.
(2)
It is not reasonably foresceable that the child's legal mother. legal father.
adjudicated. presumed. or concerned natural father as defined under
chapter 578 will become willing and able to provide the child with a safe
family home. even with the assistance of a service plan. within a
reasonable period of time which shall not exceed three years from the date
upon which the child was first placed under foster custody by the court.
(3)
The proposed permanent plan will assist in achieving the goal which IS in
the best interests of the child. provided that the court shall presume that
(A) It is in the best interests of a child 10 be promptly and permanently
placed with responsible and competent substitute parents and
families in safe and secure homes: and
(B)
The presumption increases in importance proportionate 10 the
youth of the child upon the date that the child was first placed
under foster custody by the court: and
(4)
If the child has reached the age of fourteen. the child IS supportive of the
permanent plan
(b)
If the court determines that the criteria set forth in subsection (a) are
established by clear and convincing evidence. the court shall order:
(1)
That the existing service plan be terminated and that the prior award of
foster custody bc revoked:
30
587-73
CHILD PROTECTIVE ACT
(2)
That permanent custody be awarded to an appropriate authorized agency.
(3)
That an appropriate permanent plan be implemented concerning the child
whereby the child will
(A)
Bc adopted pursuant to chapter 578. provided that the court shall
presume that II IS in the best interests of the child to be adopted.
unless the child IS or will be in the home of family or a person who
has become as family and who for good cause is unwilling or
unable to adopt the child but is committed to and IS capable of
being the child's guardian or permanent custodian:
(B)
Be placed under guardianship pursuant to chapter 560. or
(C)
Remain in permanent custody until the child IS subsequently
adopted. placed under a guardianship. or reaches the age of
majority. and that such status shall not be subject to modification
or revocation except upon a showing of extraordinary
circumstances to the court:
(4)
That such further orders as the court decins to be in the best interests of
the child. including. but not lunited to. restricting or excluding
unnecessary parties from participating in adoption or other subsequent
proceedings. bc entered: and
(5)
Until adoption or guardianship is ordered. that each case be set for a
permanent plan review licaring not later than one year after the date that
a permanent plan is ordered by the court. or sooner if required by federal
law. and thereafter. that subsequent permanent plan review hearings be
sct not later than each year. or sooner if required by federal law: provided
that at each permanent plan review hearing. the court shall review the
existing permanent plan and enter such further orders as are deemed to be
in the best interests of the child
(c)
If the court determines that the criteria set forth 111 subsection (a) are not
established by clear and convincing evidence. the court shall order that:
(1)
The permanent plan hearing be continued for a reasonable period of time
not to exceed SIX months from the date of the continuance or the case be
set for a review hearing within SIN months:
(2)
The existing service plan be revised as the court. upon such hearing as the
court deems to be appropriate and after ensuring that the requirement of
section 587-71(h) IS satisfied. determines to be in the best interests of the
child. provided that a copy of the revised service plan shall be
incorporated as part of the order.
(3)
The authorized agency submit a written report pursuant to section 587-
411. and
(4)
Such further orders as the court decms to be in the best interests of the
child be entered
(d)
Al the continued permanent plan bearing. the court shall proceed pursuant
to subsections (a). (b). and (c) until such date as the court determines that
(1)
There is sufficient evidence to proceed pursuant to subsection (b). or
11
CHILD PROTECTIV E ACT
587-74
(2)
The child's family IS willing and able to provide the child with a safe
family home. even with the assistance of a service plan. upon which
determination the court may
(A) Revoke the prior award of foster custody to the authorized agency
and return the child to the family home:
(B) Terminate junsdiction.
(C) Award family supervision to an authorized agency.
(D) Order such revisions to the existing service plan as the court. upon
such hearing as the court deems to be appropriate and after
ensuring that the requirement of section 587-71(h) is satisfied.
determines to be in the best interests of the child. provided that a
copy of the revised service plan shall be incorporated as part of the
order.
(E) Set the case for a review hearing within SIX months. and
(F)
Enter such further orders as the court deems to be in the best
interests of the child.
(c)
The court shall order a permanent plan for the child within three years of
the date upon which the child was first placed under foster custody by the court. if the
child's family IS not willing and able to provide the child with a safe family home. even
with the assistance of a service plan. IL 1986. C 316. §30: am L 1992. C 190. §261
CASE NOTES
An award of permanent custody under this chapter involves essentially the same critent and material elements as
J termination of parental rights under $571-61(bx1 that is why $571.61 authorizes the termination of parental
ngthts in most cases where the entens for this section relating to an award of permanent custody have been sanstied In re
Male Child. 8 Haw App 66. 793 P d669. cell denied. 71 Haw 668, 833 P 'd 900 (1990)
The only difference between the cuicns for the award of permanent custody and the catena for the termination of
parental rights is that subsection (3) of this section authorizes the award of perminent custody when the child's family 15
other unwilling or unable to provide the child with 1 sate timily home, whereas 3571-611b H HE) authorizes the termination
of parental rights when the parent 13 unable to provide the care necessary for the well-being of the child In ic Vale Child,
8 Haw. App 66. 793 P !J 669. cert. denied, 71 Haw 668, 833 P 2d 900 (1990)
Foresceable toture A. 3 matter of statutory interpretation. the phrase Toreseeable future" in
has 1 meaning consistent with paragraph (a)( 11 and subsection (c) of this section. "Toresecable tuture" in
means three years from the liling date of the petition for termination of parental rights In Male Child, 8 flaw App 66.
793 l' 2d 669. cell denied. 71 llaw 668. 833 P 'd 900 1990)
Cited In Doe. 7 Haw 547. 781P :J 873 (1989)
UNOFFICIAL
$17-835-1
HAWAII
TITLE 17
DEPARTMENT OF HUMAN SERVICES
SUBTITLE 6 FAMILY AND ADULT SERVICES DIVISION
CHAPTER 835
PERMANENCY ASSISTANCE
$17-835-1
Goals
$17-835-2
Definitions
$17-835-3
Scope of program
$17-835-4
Geographic area of service
$17-835-5
Confidentiality
$17-835-6
Appeals and hearings
$17-835-7
Reporting changes
$17-835-8
Overpayments and recoupment
$17-835-9
Application for permanency assistance
$17-835-10
Eligibility requirements
$17-835-11
Family responsibility for payment
$17-835-12
Income of the child
$17-835-13
Application disposition
§17-835-14
Permanency assistance agreement
$17-835-15
Determination of permanency assistance
$17-835-16
Method of payment
$17-835-17
Initiation of permanency assistance
$17-835-18
Duration of permanency assistance
$17-835-19
Recertification of permanency assistance
agreement
$17-835-20
Notice for recertification
§17-835-21
Permanency assistance outside the state
$17-835-22
Special conditions for permanency
assistance for legal guardianship or
permanent custody awarded through July
31, 1990
$17-835-23
Termination of permanency assistance
$17-835-1 Goals. Permanency assistance provided
under this chapter shall be directed at meeting the
following goals:
(1) Securing placement with a specified permanent
custodian or legal guardian for the child who
is unable or unwilling to be adopted;
(2) Achieving and maintaining self-sufficiency of
children, including the reduction or
835-1
UNOFFICIAL
$17-835-1
prevention of dependency;
(3) Preventing or reducing inappropriate
institutional care of children. [Eff
8/25/90] (Auth: HRS $346-14) (Imp: HRS
$346-14; SLH 1989, Act 316)
$17-835-2 Definitions. As used in this chapter:
"Caretaker" means any adult who provides care to
or oversees the care of children.
"Child" means any person under eighteen years of
age who is residing with legal guardians or permanent
custodians as a result of a court order issued at the
time the department had placement responsibility; or,
upon attaining age eighteen years while residing with
his or her legal guardians or permanent custodians
needs continued care to complete high school education
or equivalent within six months or within the following
school year with a goal towards independent living; or,
is twenty-one years old or younger and attending an
accredited institution of higher education in the State
on a full-time basis.
"Department" means the department of human
services.
"Institution of higher education" means any
institution normally requiring a high school diploma or
equivalency certificate for enrollment, including but
not limited to college, universities, and vocational or
technical schools.
"Legal guardian" means any adult who has assumed
legal guardianship of a child as the result of a
judicial determination under HRS chapter 560, made at
the time the department had placement responsibility of
the child.
"Permanency assistance" means the provision of a
permanency assistance subsidy, medical benefits, and/or
other special circumstance requirements to facilitate
the permanent placement of children under the
department's placement responsibility.
"Permanency assistance agreement" means a written
agreement between the legal guardians or permanent
custodians and the department specifying conditions for
the provision of permanency assistance.
"Permanency assistance subsidy" means the
provision of a grant or monetary assistance for the
maintenance needs of children previously under the
department's placement responsibility in order to
facilitate their permanent placement with legal
835-2
UNOFFICIAL
$17-835-3
guardians or permanent custodians.
"Permanent custodian" means any adult who has
assumed permanent custody of a child as the result of a
judicial determination under HRS chapter 587, made at
the time the department had placement responsibility of
the child.
"Placement responsibility" means the authority of
the department to determine the placement and care of a
child for whom the department has foster custody/legal
custody or permanent custody.
"Special circumstance requirements" means the cost
of clothing and other necessary expenses as specified
in section 17-835-3. [Eff 8/25/90] (Auth: HRS $346-
14) (Imp: HRS $346-14; SLH 1989, Act 316)
$17-835-3 Scope of program. Permanency
assistance shall include:
(1) A qualified permanency assistance subsidy or
monetary grant to meet the child's basic
maintenance needs at the established foster
board rate specified in chapter 17-828;
(2) Special circumstance requirements as follows
when the need is established by the child's
department worker:
(A) Clothing:
(i) Necessary for maintenance; and
(ii) Needed for special circumstances or
special events;
(B) The actual cost of necessary school bus
fare or private automobile mileage at
established state mileage allowance for
the months school is in session for a
child who is attending school where free
school transportation is not available;
(C) The actual cost of local bus fare,
private automobile mileage at
established state mileage allowance, or
taxi fare when other resources are not
available to obtain medical care
including physical examinations,
psychiatric and psychological therapy;
(D) Minimum rates for transportation and
other costs to allow the child to
accompany his or her legal guardians/
permanent custodians to their new state
of residence; or
(E) Special services costs for children
835-3
UNOFFICIAL
$17-835-3
meeting the eligibility requirements of
chapter 17-917, Hawaii Administrative
Rules; and
(3) Qualified medical care benefits under the
title XIX or State's medicaid program for
children certified for permanency assistance
when other medical care resources are not
available. [Eff 8/25/90] (Auth: HRS $346-
14) (Imp: HRS $346-14; SLH 1989, Act 316)
$17-835-4 Geographic area of service. Permanency
assistance shall be available to eligible children
meeting the requirements of section 17-835-10. [Eff
8/25/90] (Auth: HRS $346-14) (Imp: HRS $346-14; SLH
1989, Act 316)
$17-835-5 Confidentiality. The provisions of
chapter 17-601, Hawaii Administrative Rules, shall
apply to families and children served under this
chapter. [Eff 8/25/90] (Auth: HRS $346-14) (Imp:
HRS S$346-14; 346-10)
$17-835-6 Appeals and hearings. The provisions
of chapter 17-602, Hawaii Administrative Rules, shall
apply to families and children served under this
chapter. [Eff 8/25/90] (Auth: HRS 346-14) (Imp:
HRS $$346-12, 346-14)
$17-835-7 Reporting changes. (a) Legal
guardians/permanent custodians shall be responsible to
report to the department in writing within fifteen days
of occurrence:
(1) If they are no longer supporting the child or
the child is no longer residing with them;
(2) If the child is receiving or is eligible to
receive income from a source other than the
Department;
(3) If they are no longer the legal guardians or
permanent custodians of the child;
(4) Any changes of address including:
(A) Place of residence; and
(B) Mailing address;
(5) Other circumstances which may affect
eligibility for continued permanency
835-4
UNOFFICIAL
$17-835-9
assistance.
(b) Failure to report information as specified in
section 17-835-7 (a), which may affect eligibility for
permanency assistance shall be investigated by the
department as suspected fraud.
(c) In situations where fraud is suspected, the
provisions of chapter 17-604, Hawaii Administrative
Rules, shall be applicable. [Eff 8/25/90] (Auth: HRS
$346-14) (Imp: HRS $5346-14, 346-44)
$17-835-8 Overpayments and recoupment. (a) An
overpayment shall occur when legal guardians or
permanent custodians receive permanency assistance to
which they are not entitled.
(b) Overpayments shall be collected from the
legal guardians or permanent custodians in the
following manner:
(1) As a refund from the currently available
permanency assistance payment at a rate of
ten per cent of the monthly permanency
assistance payment for legal guardians or
permanent custodians who continue to be
eligible to receive permanency assistance;
(2) Recovered for the department by the
investigations office for individuals who are
no longer eligible to receive permanency
assistance.
(c). Overpayments that meet the definition of
fraud as defined in chapter 17-604, Hawaii
Administrative Rules, shall be referred to the
investigations office. [Eff 8/25/90] (Auth: HRS
346-14) (Imp: HRS $346-14, 346-44)
$17-835-9 Application for permanency assistance.
(a) An application for permanency assistance may be
submitted by the prospective legal guardians or
permanent custodians on behalf of a child under the
department's placement responsibility who is receiving
case management services under chapters 17-806, 17-913
or 17-920.1.
(b) The initial request (application) for
permanency assistance cannot be made after guardianship
or permanent custody has been awarded except when the
application for permanency assistance was made on or
prior to September 15, 1990 for cases specified in
section 17-835-22.
835-5
UNOFFICIAL
$17-835-9
(c) The application shall be in writing on a form
prescribed by the department. The form shall be dated
and signed under penalty of perjury and shall include
all information needed by the department to establish
eligibility for permanency assistance. [Eff 8/25/90]
(Auth: HRS $346-14) (Imp: HRS $346-14; SLH 1989, Act
316)
$17-835-10 Eligibility requirements. (a) In
order to be eligible for permanency assistance, the
following conditions shall be met:
(1) The child shall have been determined by the
department social worker to be unable to be
reunified with his or her parent or parents
or to be placed for adoption;
(2) The caretakers shall have assumed sole legal
guardianship or permanent custody of the
child as the result of a judicial
determination made at the time the department
had placement responsibility of the child and
provided case management services under
chapters 17-806, 17-913 or 17-920.1;
(3) The child shall not be eligible for room and
board payments under chapters 17-828, 17-923
or 17-943;
(4) The department shall be relieved of placement
responsibilty; and
(5) The child's income shall not exceed the
maximum permanency assistance subsidy and
special circumstance requirements allowable.
(b) An eligible child shall continue to be
eligible for permanency assistance subsidy after
reaching the age of majority and the permanency
assistance subsidy for that person shall continue to be
paid to the person's legal guardians or permanent
custodians, provided that:
(1) The person is twenty-one years old or
younger; and
(2) The person is attending an accredited
institution of higher education in the State
on a full-time basis.
The permanency assistance subsidy may be applied to
costs incurred in undertaking full-time studies at an
institution of higher education.
(c) The prospective legal guardians/permanent
custodians or legal guardians/permanent custodians
shall enter into a permanency assistance agreement with
835-6
UNOFFICIAL
$17-835-13
the department. [Eff 8/25/90] (Auth: HRS $346-14)
(Imp: HRS 346-14; SLH 1989, Act 316)
$17-835-11 Family responsibility for payment.
(a) The child's legally responsible parents shall be
required to contribute to the cost of their child's
placement with the legal guardians or permanent
custodians in accordance with the requirements of
section 17-828-7.
(b) Contributions from the legally responsible
parent shall be made to the department as refund for
the cost of the permanency assistance. [Eff 8/25/90]
(Auth: HRS $346-14) (Imp: HRS 346-37.1)
$17-835-12 Income of the child. The resources
of the child shall be considered when determining the
amount of permanency assistance payments. The income
to be considered shall include, but is not limited to
the following:
(1) Unearned income such as SSI benefits,
retirement survivor's and disability
insurance (RSDI) benefit payments, trust fund
accounts, and military personnel's or
veterans' dependency benefits; and
(2) Earned net income from full or part-time
employment for children meeting the
eligibility requirements of section 17-835-10
shall be applied as follows:
(A) Thirty percent (30%) from full-time
employment of which twenty percent (20%)
shall be applied to room and board and
ten percent (10%) to meet clothing
needs.
(B) Fifteen percent (15%) from the net
monthly income of $100 or more from
part-time employment shall be applied to
room and board.
The child shall make payment directly to the
legal guardians or permanent custodians.
[Eff 8/25/90] (Auth: HRS $346-14) (Imp:
HRS $$346-14; 346-37.1)
$17-835-13 Application disposition. (a) The
disposition of the application for permanency
assistance shall be made within thirty calendar days
835-7
UNOFFICIAL
$17-835-13
from the date of receipt of the application.
(b) The department shall notify applicants about
their eligibility for permanency assistance within
fifteen calendar days after the department makes a
decision.
(c) The applicant shall be sent a written notice
that contains a statement of the action taken, the
reasons for the action, the specific rules supporting
the action, and of the right to appeal the department's
decision through established appeals and hearing
procedures. [Eff 8/25/90] (Auth: HRS $$346-12, 346-
14) (Imp: HRS $346-14)
$17-835-14 Permanency assistance agreement. (a)
A written permanency assistance agreement between the
department and the prospective legal guardians/
permanent custodians or legal guardians/permanent
custodians shall be in effect for any child for whom
permanency assistance payments are made.
(b) The agreement shall be signed prior to or at
the time of the final decree awarding legal
guardianship or permanent custody to the caretakers
except when the agreement was signed on or prior to
September 15, 1990 for cases specified in section 17-
835-22.
(c) A copy of the signed agreement shall be given
to each party.
(d) The terms of the agreement shall remain in
effect regardless of the state in which the legal
guardians or permanent custodians live at any time.
[Eff 8/25/90] (Auth: HRS 346-14) (Imp: HRS $346-
14; SLH 1989, Act 316)
$17-835-15 Determination of permanency
assistance. (a) The amount of the permanency
assistance subsidy shall not exceed the department
foster family board rate specified in chapter 17-828.
(b) The amount of other special circumstance
requirements shall be provided in accordance with
section 17-835-3.
(c) The earned/unearned income of the child or
children shall be subtracted from what would be the
permanency assistance amount.
(d) The amount of payment may be based on the
receiving state's board rate when a child moves out of
state with legal guardians or permanent custodians.
835-8
UNOFFICIAL
$17-835-18
(e) Exceptions to the computed permanency
placement subsidy:
(1) The permanency placement subsidy grant
shall not be less than $5 per month.
(2) A lesser amount than the computed
maintenance payment can be agreed upon
by the department and the legal
guardians/permanent custodians if the
legal guardians/permanent custodians
indicate a lesser amount is adequate for
the child's care. [Eff 8/25/90] (Auth:
HRS 346-14) (Imp: HRS $346-14; SLH
1989, Act 316)
$17-835-16 Method of payment. (a) The
department or its representative shall authorize
permanency assistance when the child and family meet
the eligibility requirements specified in section 17-
835-10.
(b) Payments for permanency assistance subsidy
shall be made on a monthly basis following the month of
care and issued only to the legal guardians or
permanent custodians.
(c) Payments for special circumstance
requirements shall be issued when the child meets the
eligibility requirements of section 17-917-3. [Eff
8/25/90] (Auth: HRS $346-14) (Imp: HRS $346-14; SLH
1989, Act 316)
$17-835-17 Initiation of permanency assistance.
Permanency assistance shall be initiated not earlier
than:
(1) The date of the court order awarding legal
guardianship or permanent custody to the
child's caretaker; and
(2) The date of the signing of the permanency
assistance agreement except when the
agreement for permanency assistance was made
on or prior to September 15, 1990 for cases
specified in section 17-835-22. [Eff
8/25/90] (Auth: HRS $346-14) (Imp: HRS
$346-14)
$17-835-18 Duration of permanency assistance.
Permanency assistance may continue only until:
835-9
UNOFFICIAL
$17-835-18
(1) The child reaches age eighteen years;
(2) Upon attaining age eighteen, the child
residing with legal guardians or permanent
custodians is able to complete high school
education or equivalent within six months
upon attaining age eighteen or within the
following school year; or
(3) The child reaches age twenty-two if the child
had been attending an accredited institution
of higher education in the State on a full-
time basis. [Eff 8/25/90] (Auth: HRS $346-
14) (Imp: HRS $346-14; SLH 1989, Act 316)
$17-835-19 Recertification of permanency
assistance agreement. There shall be annual
recertification of the permanency assistance agreement
in order to determine the child's and family's
continued eligibility for the permanency assistance.
[Eff 8/25/90] (Auth: HRS $346-14) (Imp: HRS $346-
14)
$17-835-20 Notice for recertification. (a) The
department shall mail a written notice of the need for
recertification to the legal guardians or permanent
custodians at least sixty days prior to the anniversary
date of the permanency assistance agreement.
(b) A written second notice to the legal
guardians or permanent custodians shall be mailed at
least thirty days prior to the anniversary date of the
permanency assistance agreement specifying that failure
to recertify the child's and family's continued
eligibility for the permanency assistance shall result
in termination of the permanency assistance. [Eff
8/25/90] (Auth: HRS $346-14) (Imp: HRS $346-14)
$17-835-21 Permanency assistance outside the
State. (a) Permanency assistance payments shall
continue if the legal guardians or permanent custodians
and child move out of the State while the permanency
assistance agreement is in effect and the child
continues to meet the eligibility requirements of §17-
835-10.
(b) The terms of the agreement shall remain in
effect regardless of the state in which the legal
guardians or permanent custodians live at any given
835-10
UNOFFICIAL
$17-835-23
time.
(c) The State shall continue to retain
responsibility for medical care under title XIX or the
State's medicaid program. [Eff 8/25/90] (Auth: HRS
$346-14) (Imp: HRS $346-14; SLH 1989, Act 316)
$17-835-22 Special conditions for permanency
assistance for legal guardianship or permanent custody
awarded through July 31, 1990. The application and the
permanency assistance agreement shall be made and
entered into no later than September 15, 1990 for:
(1) Cases in which legal guardianship or
permanent custody was awarded the child's
caretaker on or after July 1, 1989 through
July 31, 1990; or
(2) Cases in which legal guardianship or
permanent custody was awarded the child's
caretaker prior to July 1, 1989 and the
department continues to provide room and
board payments under chapter 17-828. [Eff
8/25/90] (Auth: HRS 346-14) (Imp: HRS
$346-14)
$17-835-23 Termination of permanency assistance.
The department shall terminate payment to the legal
guardians or permanent custodians under any one of the
following circumstances:
(1) The child has reached the age of majority;
(2) The child is no longer receiving any support
from the legal guardians or permanent
custodians;
(3) The legal guardians or permanent custodians
are no longer legally responsible for the
support of the child;
(4) The child's need for permanency assistance no
longer exists;
(5) The legal guardians or permanent custodians
are able to assume full financial
responsibility and no longer wish to continue
the permanency assistance;
(6) The child goes into an adoptive home;
(7) The child has achieved independent living and
is self-supporting;
(8) The child enters a state institution for
mental retardation or mental illness;
(9) The child is placed in a correctional
835-11
UNOFFICIAL
$17-835-23
facility;
(10) The child is placed in an extended medical
facility;
(11) The child no longer meets the eligibility
requirements of section 17-835-10; or
(12) The permanency assistance agreement is not
current and valid. [Eff 8/25/90] (Auth:
HRS 346-14) (Imp: HRS 346-14)
835-12
UNOFFICIAL
$17-945-10
SUBCHAPTER 2
SERVICE PROVISION
$17-945-10 Scope of services. (a) Based upon an
assessment of the family, the department shall provide
a range of available and appropriate services to
eligible children and their families. Subject to the
eligibility provisions for the specific service, the
department may provide services identified in chapters
17-804 through 17-840, and chapters 17-912 through 17-
950, as well as attempt to secure, by referral,
available and appropriate services from other agencies
and individuals in the community. Where necessary to
ensure the family's understanding of any aspect of the
department's involvement with the child and the child's
family, the branch shall secure the services of an
interpreter.
(b) The department shall offer all available and
appropriate services to families with children at risk
of placement into substitute care in order to maintain
the family unit. When it is not possible to maintain
the child safely at home, the department shall assume
placement responsibility of the child pursuant to
appropriate statute or through written voluntary
consent of the parent (s) or legal guardian (s) in order
to effect temporary placement of the child into
substitute care.
(c) In effecting placement of the child, the
department shall:
(1) Effect placement only via the written
voluntary consent of the parent (s) or legal
guardian (s), by court order, or by assuming
temporary foster custody of the child through
the transfer of protective custody from the
police and proceeding pursuant to section
587-24, HRS;
(2) Make every reasonable effort to place the
child into the most appropriate family-like
setting available which is able to meet the
needs of the child;
(3) Make every reasonable effort to place the
child in close proximity to home;
(4) Attempt, where appropriate, to place siblings
together;
(5) Consider and, when appropriate, effect
placement with relatives before placement
into licensed substitute care facilities is
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considered;
(6) Make reasonable efforts to reunite the child
with family at the earliest possible time;
(7) Enter into or revise a case plan with the
family identifying tasks to be accomplished
toward achieving an identified permanency
goal.
(d) Based upon its assessment and in accord with
the goal to be achieved as set out in the case plan,
the department will offer and provide available and
appropriate services to the family, substitute
caretakers, and the child. The services may be
provided directly by department staff, through purchase
of service contractors, or by other individuals and
agencies through referral by the department.
(e) Unless the situation requires the immediate
change in the placement of the child, the department
shall inform the parent (s) or legal guardian (s) of any
planned change and reason for the change in the child's
placement at least two weeks in advance of the change.
Where necessary to ensure the family's understanding,
the branch shall secure services of an interpreter.
(1) Notification shall be in writing or, if
provided verbally, shall be confirmed in
writing.
(2) When the situation necessitates immediate
change in the placement of the child, the
parent (s) or legal guardian (s) shall be
informed verbally within three working days,
confirmed by written notice, or by written
notice sent within three working days of the
change in placement.
(3) Should the parent (s) or legal guardian (s) not
agree with the proposed or actual change in
placement, if the case is known to court,
they shall be referred to their attorney or,
if they do not want an attorney, they shall
be advised as to their alternative of a
hearing in family court. Where appropriate
in a voluntary placement, the department
shall petition the court for jurisdiction.
(f) Unless the situation necessitates immediate
change in the visitation schedule set up for the child
and parent (s) or legal guardian (s) the department
shall inform the parent (s) or legal guardian (s) of any
planned change at least two weeks in advance of the
change. Where necessary to ensure the family's
understanding, the branch shall secure the services of
945-6
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$17-945-10
an interpreter.
(1) Notification shall be in writing or, if
provided verbally, shall be confirmed in
writing.
(2) When the situation necessitates immediate
change in the schedule, the parent (s) or
legal guardian (s) shall be informed verbally
within three working days, confirmed by
written notice, or by written notice sent
within three working days of the change in
visitation.
(3) Should the parent (s) or legal guardian (s) not
agree with the proposed or actual change in
visitation, if the case is known to court,
they shall be referred to their attorney and,
if they do not want an attorney, they shall
be advised as to their alternative of a
hearing in family court. Where appropriate
in a voluntary placement situation, the
department shall petition the court for
jurisdiction.
(g) When reunification is clearly and
convincingly established as not being able to be
accomplished in the reasonably foreseeable future,
permanent separation and placement of the child into
another permanent family shall be pursued. The
department shall consider:
(1) Placement into an adoptive home with
relatives, foster parents (s), legal
guardian (s), permanent custodian (s) or other
appropriate individuals;
PC
(2) Permanent placement with other specified
individuals as permanent custodians or legal
guardians when continued care by that
individual is in the child's best interest
but that individual is not willing or able to
adopt the child;
(3) Permanent custody to the department with
permanent long-term substitute care placement
with a specified individual when continued
care by that individual is in the child's
best interest but an award of legal
responsibility to that individual would
jeopardize the placement.
(h) Effective April, 1988, the department shall
assure that the situation of every child under its
placement responsibility for six months or more is
reviewed through six month periodic reviews as set out
945-7
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$17-945-10
in section 17-945-12 and by dispositional reviews as
set out in section 17-945-13. The reviews shall
continue to be held at intervals no greater than six
months for as long as placement responsibility is held
by the department. [Eff 3/21/88] (Auth: HRS 346-14)
(Imp: 42 U.S.C. 627)
$17-945-11 Case plan. (a) The department shall
develop or revise an existing case plan with the family
within sixty days of the date of original placement.
(b) The case plan shall:
(1) Describe the type of home or facility in
which the child is placed;
(2) Discuss the appropriateness of the placement;
(3) Reflect placement in the least restrictive,
most family-like setting appropriate to the
needs of the child;
(4) Reflect placement in close proximity to home;
(5) Reflect efforts made to prevent the placement
and, if placement is made, also reflect
efforts to reunify the family;
(6) Reflect services provided to the parent (s),
legal guardian (s), child, substitute
caretaker to improve conditions in the home,
facilitate return of the child to the home,
or to establish a permanent placement;
(7) Document how the needs of the child in care
are being addressed;
(8) Reflect the appropriateness of the services
being provided under the plan;
(9) Reflect a likely date by which the goal of
the plan is expected to be achieved;
(10) Where appropriate, for a youth sixteen years
of age or older, contain a description of the
programs and services which will help the
youth prepare for transition from substitute
care to independent living;
(11) Following the first and all subsequent
reviews, reflect documentation of the orders
of the court or the recommendations of the
administrative review panel and contain a
discussion of how the orders or
recommendations are to be met; and
(12) Include the health and education records of
the child including:
(A) The names and addresses of the child's
health and educational providers;
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$17-945-12
(B) The child's grade level performance;
(C) The child's school record;
(D) Assurances that the child's placement in
foster care takes into account proximity
to the school in which the child is
enrolled at the time of placement;
(E) A record of the child's immunizations;
(F) The child's known medical problems and
medications; and
(G) Any other relevant health and education
information concerning the child
determined to be appropriate by the
department of human services.
(c) The department shall offer and provide
services according to the case plan and shall monitor
and assess the family's compliance with the plan and
progress in making the home safe.
(d) The department shall review the case plan
with the family including but not limited to the
parent (s) or legal guardian (s) and the child, depending
on the age and understanding of the child, at least
once every three months to assure their understanding
of the department's assessment of the progress being
made under the plan and, if appropriate, the case plan
shall be revised and updated.
(e) The case plan shall be submitted for review
at the time of the periodic and dispositional reviews.
(f) The department shall provide a copy of each
case plan to each of the parties to the case plan at
least once every six months. Health and educational
information shall be provided to the substitute care
provider at the time of placement and at the time of
any change. [Eff 03/21/88; am 10/05/91] (Auth: HRS
346-14) (Imp: 42 U.S.C. 675)
$17-945-12 Periodic reviews. (a) Effective
April, 1988, the status of each child in substitute
care under the placement responsibility of the
department shall be reviewed by the court or by an
administrative review panel at intervals no greater
than six months. The reviews shall be held within six
months of the date of original placement and at least
every six months thereafter.
(b) If a periodic review is due but, in the
assessment of the department, a dispositional hearing
is more appropriate, a dispositional hearing shall be
requested in its place. The dispositional hearing
945-9
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$17-945-12
shall take the place of the periodic review in this
instance.
(c) For children adjudicated under chapter 587 or
chapter 571, HRS, the department shall request that the
court review the status of the case to determine
whether the child is receiving appropriate services and
attention, that case plans are being properly managed,
and that activities are directed toward a permanent
placement for the child. Procedural safeguards
relating to notice, participation of the parties and
appeal shall be provided according to the rules of the
court. The court shall be requested to:
(1) Determine the continued need for and
appropriateness of the placement;
(2) Determine the extent to which each party has
complied with the case plan and the progress
which the family has made in making their
home safe;
(3) Determine the extent of progress toward
resolving the problems which caused the
placement and necessitate continued
placement;
(4) Project a likely date for return of the child
home, or to be placed for adoption or legal
guardianship or other permanent out of home
placement of the child.
(d) The department shall request that the
periodic reviews required by Pub. L. 96-272 be held at
the same hearing as that scheduled for the chapter 587
or chapter 571, HRS, matters.
(e) The status of each child in substitute care
under the placement responsibility of the department
who is not under the jurisdiction of the court shall be
reviewed by an internal administrative review panel.
At least one member of the panel shall not be directly
involved in the provision of services, including case
management services, to the child and family.
(1) The administrative reviews shall be held at
intervals no greater than six months from the
date the department assumes placement
responsibility and at least every six months
thereafter unless the child falls under the
provisions of chapter 587, HRS, which
requires a satisfactorily completed service
plan by twelve months. In this instance,
only one internal administrative review will
be held and a petition shall be filed with
the family court pursuant to chapter 587-21
945-10
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$17-945-12
(2), HRS.
Exception: If the court hearing cannot be
held within six months of the last review,
the department shall hold a second
administrative review within the required
time period.
(2)
The administrative review panel shall review
the status of the child in care to determine
whether the child and the child's family are
receiving appropriate services and attention,
that case plans are being properly managed,
and that activities are directed toward a
permanent placement for the child.
(3) The review panel shall:
(A)
Determine the continued need for and
appropriateness of the child's
placement;
(B)
Determine the extent to which each party
has complied with the case plan and the
progress the family has made in making
their home safe;
(C) Determine the extent of progress toward
resolving problems that caused the
placement and necessitate continued
placement;
(D) Project a likely date by which the child
may be returned home, placed for
adoption, legal guardianship or
permanent custody with a specified
person, or be placed in long term
substitute care.
(4)
The administrative review shall be open to
the participation of the parent (s), legal
guardian (s) and family.
(5)
At least two weeks prior to the
administrative review, written notice of the
review stating date, time, purpose and
location of the review shall be provided to:
(A) Biological and legal parent (s), legal
guardian (s), where appropriate;
(B) Substitute caretakers;
(C) Other members of the review panel;
(D) Appropriate others such as a guardian ad
litem.
The child and department staff may be
informed verbally.
(6) Any party noticed to attend the review may
bring a representative of choice to the
945-11
UNOFFICIAL
$17-945-12
review and shall be informed of this right
prior to the review.
(7) Written consent of the parent (s) or legal
guardian (s) must be secured for participation
of any non-departmental individuals in the
review process unless permitted under
chapters 17-601 or 17-920.1.
(8) The chairperson of the administrative review
shall complete the administrative review
panel report in sufficient detail to assure
that all areas were discussed and appropriate
recommendations made. The parent (s), legal
guardian (s), child, if appropriate, guardian
ad litem, if appointed, the social worker and
the chairperson shall sign the report
indicating agreement or disagreement with the
report. Other members shall sign the report
indicating their participation in and
attendance at the conference. A copy of the
report shall be given to the parent (s), legal
guardian (s), and guardian ad litem, if
appointed.
(9) If the child falls under chapter 587, HRS,
and out of home placement is to continue for
another six months or if the recommendation
is to revise the case plan and the parent (s)
and social worker do not agree, the
department shall submit a petition to bring
the child under the jurisdiction of the
court, pursuant to chapter 587, HRS.
(f) Children in pre-adoptive or adoptive homes or
in court ordered or sanctioned substitute care with a
specified family shall be referred for continuing
periodic reviews beginning no more than six months
after their last dispositional review. [Eff 3/21/88;
am 6/12/90] (Auth: HRS 346-14) (Imp: 42 U.S.C. 627)
$17-945-13 Dispositional hearings. (a)
Effective April, 1988, the department shall request
that the court or court appointed body review the
situation of each child who has been in substitute care
for eighteen months or longer under the placement
responsibility of the department. The reviews must be
held within eighteen months of the date of original
placement and at least every eighteen months thereafter
for as long as the child remains in substitute care
under the placement responsibility of the department.
945-12
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$17-945-13
(b) The department shall request that the court
review the status of the case to determine whether the
child is receiving appropriate services and attention,
that case plans are being properly managed, and that
activities are directed toward a permanent placement
for the child. Procedural safeguards relating to
notice, participation of the parties and appeal shall
be provided according to the rules of the court. The
court shall be requested to:
(1) Determine the continued need for and
appropriateness of the placement;
(2) Determine the extent to which each party has
complied with the case plan and the progress
that the family has made in making the home
safe;
(3) Determine the extent of progress toward
resolving the problems that caused the
placement and necessitate continued
placement;
(4) Project a likely date for return of the child
home, or to be placed for adoption or legal
guardianship or other permanent placement;
and
(5) Determine whether the child should be
returned to the parent (s), should be
continued in substitute care for a specified
period, should be placed for adoption or
legal guardianship with a specified
individual, or should be continued in
substitute care on a permanent or long-term
basis.
The department shall request that the dispositional
hearings required by Pub. L. 96-272 be held at the same
hearing as that scheduled for the chapter 587 or
chapter 571, HRS, matters. In the event the child is
not under the jurisdiction of the court, the department
shall submit appropriate documents requesting a
separate hearing covering the requirements of Pub. L.
96-272.
(c) Further dispositional hearings shall not be
required for children in pre-adoptive or adoptive homes
unless:
(1) The child is removed from the home, or
(2) The adoption is not finalized within a year.
Should either event occur, the department shall request
that the court resume dispositional hearings. Periodic
reviews shall continue while the child is in the pre-
adoptive or adoptive home.
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17-945-13
(d) Further dispositional hearings shall not be
required for children in court ordered or sanctioned
substitute care with a specified family unless the
caretaker changes or the child is removed from the
home. Periodic reviews shall continue if the
department continues to have placement responsibility
while the child is in placement with the specified
family. [Eff 3/21/88] (Auth: HRS 346-14) (Imp: 42
U.S.C. 627)
$17-945-14 Termination of service. Services
under this chapter shall be terminated when:
(1) The child is returned permanently to family;
(2) Adoption of the child is finalized;
(3) The child is placed with a legal guardian or
permanent custodian and the department is
relieved of placement responsibility. [Eff
3/21/88] (Auth: HRS 346-14) (Imp: 42
U.S.C. 627)
945-14
110 CMR: DEPARTMENT OF SOCIAL SERVICES
MASSACHUSETTS
7.215: continued
(3) Review. The decision of the Department to recommend or not recommend
an open adoption plan for a child is not a decision subject to review via the fair
hearing process.
Commentary
Parents, both biological and adoptive, should be aware that the terms and
conditions of an open adoption agreement, after the adoption has taken place.
are not under the control of the Department, and any subsequent disagreements
must be resolved by the parties themselves. It takes maturity and commitment
by both parties to carry out an open adoption successfully. Thus, open adoption
needs to be a mutually consensual plan. Likewise, because social workers and
lawyers must be careful that open adoption is not used as a vehicle in coercing
an adoption surrender. nor as a quick solution to a problem case, and because
open adoption must always be in the child's best interests. in every case where
open adoption is proposed by the Department, the court where the legalization
is to occur will be apprised of the terms of the proposed open adoption
agreement.
(110 CMR 7.216 through 7.299: Reserved)
GUARDIANSHIP
7.300: Policy
The Department is committed to establishing permanent placements for all
children in its care and custody. Pursuant to this commitment, the Department
may sponsor a guardianship for selected children. The children selected will be
those who are not likely to return to their parents and who, for whatever
reason. are not candidates for adoption.
7.301: Selecting Children To Be Considered For Department Sponsored Guardianship
The Department shall consider sponsoring a guardianship for a child in its
care or custody if the child meets all the following criteria:
(1) The child will not be able to return to his/her biological parents. This
determination is made by the Department based upon the history of the case
and the clinical judgment of Department social work staff.
(2) In the judgment of the Department. there is no reasonable likelihood that
the child will be adopted. This determination may be made by the Department
when, for example, the child is unwilling to be adopted. or when in the clinicial
judgment of the Department social work staff adoption would not be in the
child's best interests.
(3) The child has resided with the potential guardians for at least one (1) year.
This requirement may be waived if waiver is determined by the Department to
be in the best interests of the child.
(4) The child is at least twelve (12) years old. This requirement may be waived
if waiver is determined by the Department to be in the best interests of the
child (for example, to keep sibling groups together).
11/13/87 (Effective 11/16/87)
110 CMR 104
110 CMR: DEPARTMENT OF SOCIAL SERVICES
7.302: Implementation of Guardianship
The Department shall proceed to implement the guardianships it sponsors as
follows:
(1) The Department determines that the child meets the criteria set forth
above.
(2) The child's assigned social worker meets with the child and potential
guardian. The guardianship plan is presented to them at this time for their
consideration and approval.
(3) If guardianship is acceptable to the child and potential guardian, the social
worker will make reasonable and diligent efforts to contact the child's parents.
If the parents are contacted. they will be informed of the proposed guardianship
proceeding, of their right to contest the guardianship proceeding, and of their
right, if indigent, to court-appointed counsel. The parents' consent will then be
sought.
(4) An employee of the legal staff of the Department will prepare the
appropriate court papers. If the parents of the child have consented, their
consent shall be noted upon the court papers by obtaining their signature. If the
parents of the child have not consented to the guardianship in writing, they will
be given notice as required by law.
(5) An employee of the legal staff of the Department will initiate and
prosecute all court proceedings necessary to finalize the guardianship. The
guardianship plan will be presented to the court for review as part of the
proceeding, and said plan shall address the appropriateness of the proposed
placement and the suitability of the proposed guardians.
7.303: Guardianship Subsidy
(1) If a child is placed under guardianship through this regulation, and the child
does not receive support payments from any other state or federal agency, then
the child shall be eligible for continued support payments and/or medical
assistance from the Department, to the same extent as if the child had
remained in foster care.
(2) If a child is placed under guardianship through this regulation. and the child
is receiving support payments from any other state or federal agency, then the
child will be eligible for support payments and/or medical assistance from the
Department, only to the extent that it would raise the total support from all
sources to the amount the child would be receiving if he/she had remained in
foster care.
(110 CMR 7.304 through 7.399: Reserved)
SPECIAL EDUCATION SERVICES ("766")
7.400: Provision of Education Services to Children in Department Care or Custody
All handicapped children in the Department's care or custody are entitled
to a free appropriate education. Whenever special education is necessary for
children in its care or custody, the Department will pursue special education
services, through the local public schools.
7.401: Special Education Definitions
As used in this chapter only the following terms shall have the following
meanings:
(1) Child. Any person aged 3 through 21 who has not obtained a high school
diploma or its equivalent.
(2) Child in Need of Special Education. Any child aged 3 through 21
12/31/86
110 CMR 105
CWS
NEBRASKA DEPARTMENT OF
SEPTEMBER, 1995
390 NAC 6-003.05H
SOCIAL SERVICES MANUAL
6-003.05H
DELETIONS OR TERMINATIONS IN SUBSIDY
The regulations for deletion or termination of the subsidy are the same for private agency wards
and Department wards except the private agency wards aren't eligible for a state subsidy between
ages 18 and 19 as are Department wards. See 390 NAC 6-003.03F7, Deletions or Terminations
in Subsidy for the regulations.
6-003.051
RETENTION OF RECORDS
Closed records are retained by the Department for four years.
6-004
LEGAL GUARDIANSHIP
When all efforts to reunify the child with his/her family have been exhausted and have been
unsuccessful, and when there is no advantage to the child in pursuing termination of parental
rights, legal guardianship may be appropriate to consider as a permanency plan for a child.
The Department will support a legal guardianship using the following as guidelines:
1. The child has a relationship with a prospective guardian and has lived successfully for
a minimum of six months in the home of the guardian, or
The worker has determined that the child will develop a relationship with a relative or
foster parent who is committed to the guardianship plan.
2. The child can't return home despite reasonable opportunities provided to the parents
to correct the family conditions leading to the child's placement.
3. It is unreasonable to pursue adoption because:
a.
Efforts to secure a voluntary relinquishment of parental rights and termination of
parental rights by the court have been unsuccessful;
b.
It has been determined that adoption isn't in the child's best interest; or
C.
Parental rights have been terminated but exhaustive efforts haven't been able to
secure an adoptive placement.
4. The prospective guardian and the child can function effectively without Department
supervision.
5. The guardian is able and willing to support the child financially, or satisfactory financial
arrangements can be made. If a guardian will need ongoing financial assistance to
care for a child, eligibility for a guardianship subsidy will be pursued by the worker.
6. The child is age 12 or older, is part of a sibling group or is attached to the proposed
guardian and adoption isn't feasible.
6-26
CWS
NEBRASKA DEPARTMENT OF
SEPTEMBER, 1995
390 NAC 6-004.01
SOCIAL SERVICES MANUAL
6-004.01
SELECTION OF A GUARDIAN
The Department will use the following priorities in selecting a potential guardian:
1. Relative of the child.
2. Foster parent or another person with whom the child has an existing relationship.
3. New foster parent who is committed to the guardianship plan.
The child's wishes will be taken into consideration in any decision regarding a potential guardian.
6-004.02
CONSENT TO GUARDIANSHIP
The child, the prospective guardian, the child's guardian ad litem and the birth parents, if their
parental rights are intact, will be consulted for consent to the guardianship. If parents object but
the Department feels guardianship is in the child's and family's best interest, the worker should
try to address the parent's objections or ask the court to address them at the guardianship
hearing.
If a child under age 13 has objections to the guardianship, these will be explored with the child
and the guardian ad litem; and a determination of the best interests of the child will be made. If
a child age 14 or older objects to the guardianship, the guardianship won't be pursued.
The Department will send written notice of the plan for guardianship to these parties: the court,
county attorney, guardian ad litem, parent's attorney and parents, if parental rights are intact.
To assure stability and continuity to the child, the worker will assist all parties involved to develop
a written plan for visitation with any siblings, parents (if appropriate), and other relatives or
important persons in the child's life.
6-004.03
FINALIZING GUARDIANSHIP
When guardianship is determined to be the plan of choice for a child, and the child has resided
with the prospective guardian for a minimum of six months, the worker will advise the prospective
guardian to retain legal counsel and file a petition in the county court of the county of his/her
residence. The worker will appear in court to testify in support of the petition.
Upon approval of the court of the guardianship, the worker will close the case. Once the court
order establishes guardianship, the Department no longer has any authority or responsibility for
the child except as might exist due to a subsidized guardianship.
6-27
CWS
NEBRASKA DEPARTMENT OF
SEPTEMBER, 1995
390 NAC 6-005
SOCIAL SERVICES MANUAL
6-005
SUBSIDIZED GUARDIANSHIP
The subsidized guardianship program provides continued financial assistance to a child after a
legal guardian has been appointed and Department's custody has been terminated. The program
is designed to ensure that financial barriers or costs associated with a child's needs don't prevent
the appointment of a guardian for a child as a preferred alternative to long-term foster care. The
appointed guardian will use all available resources, benefits and programs, including but not
limited to private insurance coverage, care or services available through the education system.
6-005.01
LEGAL BASIS
State funds may be used for subsidized guardianship payments on behalf of a child who was a
ward of the Department, as provided in Nebraska Section 43-284.02, Reissue Revised Statutes
of Nebraska, 1943.
6-005.02
CHILD'S ELIGIBILITY
A child is eligible for the subsidized guardianship program if she/he is a ward of the Department
and meets the criteria for subsidized guardianship as follows:
1. Documented behavioral, emotional, physical or mental disability;
2. Membership in a sibling group of three or more to be placed together;
3. The child has a strong attachment to the potential guardian; or
4. The child is age 12 or older or, if under 12, is part of a sibling group or is attached to
the proposed guardian and can't be freed for adoption; and
A child's eligibility ends upon the child's 19th birthday, when the child becomes self-supporting
or when the guardianship order is terminated.
6-005.03
TYPES OF SUBSIDY
Subsidized guardianship may include one or more of the following:
1.
Maintenance: This includes monthly payments to the guardian to assist in meeting the
child's day-to-day needs. The amount may not be greater than what would be paid for
the child in foster care.
2. Medical/Surgical: This may include the following:
a. Payments to a medical practitioner for medical or surgical care. Payment will be
made by Medicaid or at the Nebraska Medicaid rate.
b.
Payments for residential psychiatric care. (See Residential Psychiatric Care in this
Section.)
NOTE: Payment for care for a pre-existing medical condition will be paid from non-Medicaid
funds only if the care isn't covered under the Medicaid program or no provider is available in the
community. If a Medicaid provider is available but a family chooses not to use him/her, payment
won't be made under state subsidy.
6-28
CWS
NEBRASKA DEPARTMENT OF
SEPTEMBER, 1995
390 NAC 6-005.03
SOCIAL SERVICES MANUAL
3. Other Costs Incidental to the Care of the Child: This includes payment for a specific
service or item related to special needs of the child, including, but not limited to -
a. Legal fees to obtain the guardianship, not to exceed the usual and customary rate
for such services within the community; and
b. Expenses for transportation, lodging, and meals for the child and one adult to
enable the child to receive medical care. Amounts paid will be no more than those
paid for foster care.
6-005.04
DETERMINING THE GUARDIAN'S NEED FOR SUBSIDY
Based on the child's current and future needs, one or more of the subsidy types may be used.
A determination of these needs and the guardian's ability to meet these needs without assistance
will be considered through the following:
1. Other programs and benefits to meet the child's needs.
2. Amount: If maintenance or other costs incidental to care of the child are being
considered:
(a) The amount must be no more than payment would be if the child had remained
in the Department's care; and
(b) Explore other maintenance payments or financial resources. The worker will
explain that any maintenance payments will be deducted from the agreed-to
maintenance under subsidy.
3. Duration: The anticipated time the child is expected to need assistance.
6-005.05
AGREEMENT PRIOR TO GUARDIANSHIP ORDER
The agreement for subsidy will be completed and approved before the order establishing
guardianship is issued. The agreement will include the type, amount and duration of the subsidy.
Subsidy payments begin after the guardian has been appointed by the court. (See Guardianship
Guidebook for process and forms.)
6-005.06
RESIDENTIAL PSYCHIATRIC CARE
The purpose of residential or inpatient psychiatric care is to provide treatment when the child can't
benefit from less restrictive care.
6-29
CWS
NEBRASKA DEPARTMENT OF
SEPTEMBER, 1995
390 NAC 6-005.06A
SOCIAL SERVICES MANUAL
6-005.06A
RESTRICTIONS
If the facility and service are covered by Nebraska Medicaid, the care will be covered only by
Medicaid using Medicaid procedures. If the facility or service is not covered by Nebraska
Medicaid, the following requirements apply:
To be covered under subsidized guardianship, inpatient or residential care must be:
1.
Provided in a facility licensed or approved by the appropriate agency for therapeutic or
psychiatric care; and
2.
Psychiatric or mental health treatment.
Residential or inpatient psychiatric care may be provided under subsidized guardianship for a
maximum of two years.
There is a separate process for coverage of out-of-state residential treatment.
(See Guardianship Guidebook for process.)
The Department will approve payment for residential or inpatient psychiatric care only if:
1. Care is anticipated to result in progress that will enable the child to return to the
guardian or community;
2. Less restrictive or acute care alternatives or treatments aren't appropriate or available,
or have refused to accept the child;
3. The child can't obtain appropriate care in the guardian's home or community;
4. The child's guardian will continue to remain involved with the child in planning for and
making possible the return home;
5. This type of placement is in the child's best interests;
6. Other resources, including those of the child's parent(s), benefits, or programs aren't
available to cover the care; and
7.
Approval for the placement is given by a local team including adoption staff and Central
Office, before the residential placement.
6-005.06B
ADJUSTMENT IN MAINTENANCE
When the child is approved for residential psychiatric treatment, the worker and the guardian will
determine what, if any, maintenance the guardian will provide for the child. The maintenance
payment will be reduced as appropriate.
6-30
CWS
NEBRASKA DEPARTMENT OF
SEPTEMBER, 1995
390 NAC 6-005.06C
SOCIAL SERVICES MANUAL
6-005.06C
REVIEW OF RESIDENTIAL OR INPATIENT PLACEMENT
While the child is in residential care or inpatient treatment , the worker will request progress
reports from the facility every three months. These reports must include:
1. Progress toward treatment goal;
2. Continuing need for treatment;
3. Prognosis and estimated length of time treatment will be needed; and
4. The guardian's involvement in treatment or planning for return home.
The Peer Review Organization (PRO) will be reviewing the treatment for medical necessity on a
regular basis. If the PRO determines that the client doesn't need that level of care, they will deny
continued stay and notify the protective service worker.
6-005.06D
PAYMENT TERMINATION
The Department will no longer provide payment if:
-
Reasonable progress isn't occurring, and it is determined that treatment at that facility
is no longer appropriate;
-
Treatment is no longer needed;
-
The plan isn't to return the child to guardian's home;
-
The guardian is no longer involved with the child or participating in treatment; or
-
Reports providing the above information are not provided to the Department.
At least 30 days before payment termination, a written notice will be sent to the guardian giving
the date on which payment will cease.
Note:
If the guardian has ceased his/her involvement with the child, the worker will
consider whether a child protective services referral is appropriate.
6-005.07
ANNUAL REVIEW
The guardianship subsidy will be reviewed every 12 months to determine the level of continued
need and continuing eligibility.
6-005.08
RIGHT TO APPEAL
The guardian has the right to a fair hearing if the Department denies the application for subsidy
or reduces or terminates the agreement.
6-31
CWS
NEBRASKA DEPARTMENT OF
SEPTEMBER, 1995
390 NAC 6-005.09
SOCIAL SERVICES MANUAL
6-005.09
TERMINATION OF GUARDIANSHIP PAYMENT
A subsidy can be terminated, a service deleted, or a maintenance payment decreased because
of the following factors:
1.
The terms of the agreement have terminated;
2.
The Department determines the guardian isn't legally responsible for the support of the
child or if the child isn't receiving any support from the parent;
3.
The child's 10th birthday;
4.
The guardian fails or refuses to be legally responsible for the support of the child or to
use the maintenance payment to meet the child's needs;
5.
The child is no longer residing with the guardian unless the child has been placed out
of the home and the guardian is cooperating in the child's return home (the payment
may be decreased);
6.
The guardian requests termination of the subsidy;
7.
A change in regulations or law makes the child no longer eligible for a subsidy;
8.
The guardian refuses to cooperate in the process of reviewing the agreement;
9.
The child no longer needs the medical care, special services or respite or child care
payment that were specified in the subsidy agreement; or
10. The child dies.
6-32
Title 89
Illinois Administrative Code
Ch. III. Sec. 302.330
(Source: Amended at 19 III. Reg. 9485, effective July 1, 1995)
Section 302.340 Emergency Caretaker Services
Emergency caretaker services are provided when the parents or caregivers are absent from the home and there would be no risk if the
child remains in the home with adequate supervision. The intent of this service is to maintain the child in familiar surroundings and
reduce inappropriate out-of-home placement. The Department may provide an emergency caretaker for up to 12 hours without taking
temporary custody of the child.
(Source: Amended at 19 III. Reg. 9485, effective July 1, 1995)
Section 302.350 Family Planning Services
Family planning services are provided to enable the client to determine the number of children or the spacing of children through the
postponement or prevention of conception. Family planning services include the provision of information concerning medical care and
contraceptives and when other resources are unavailable, payment for services. Clients have the right to accept or reject family
planning services. Family planning services are available to Department clients who are old enough to have children regardless of sex,
marital status, parenthood, or the religious affiliation or personal belief of any Department or child welfare agency employee. A minor
of child bearing age is entitled to family planning services without parental consent.
Section 302.360 Health Care Services
Health care services are provided to children for whom the Department has legal responsibility who are receiving placement services.
Usually children in placement have been determined to be eligible for Medical Assistance provided through the Illinois Department of
Public Aid. The Department of Children and Family Services shall pay for the medical care of children in placement for whom it is
legally responsible and who are not eligible for the Medical Assistance program and who do not have resources to pay for medical care.
Section 302.370 Homemaker Services
Homemaker services are provided primarily as an in-home, protective service to maintain and strengthen the ability of the parent(s) or
relative caregiver to provide adequate child care and to improve their parenting skills. Additionally, homemaker services may be
provided to ease the reunification of families, or to assist foster parents during times of family crisis as well as during pre-planned
relief time. Service activities may include teaching and provision of home management, including meal planning and preparation,
budgeting, shopping and child care; health care; teaching parenting skills; observation of family interaction; and assessment of client's
needs.
(Source: Amended at 19 III. Reg. 9485, effective July 1, 1995)
Section 302.380 Information and Referral Services
When it is determined that a child or family requesting Department services or receiving Department services can benefit from referral
to another community or governmental resource, the Department will provide information concerning the resource or make a referral to
the resource.
Section 302.390 Placement Services (Repealed)
(Source: Repealed at 19 III. Reg. 9485, effective July 1, 1995)
Section 302.400 Successor Guardianship
a) When Successor Guardianship is Appropriate
Successor guardianship is a program available for only those children who meet the following criteria.
1) The child must be at least 14 years of age and must consent to the successor guardianship arrangement.
2) The child must have resided with the prospective successor guardian for at least one year immediately prior to
establishing the successor guardianship.
3) The child must have been under Department guardianship for at least one year immediately prior to establishing
the successor guardianship.
4) The child must not have medical, transportation, or personal expenses (e.g. expenses related to skills, interests, or
hobbies) which would create a financial burden on the successor guardian.
Rule as of June 30, 1995
89-302-10
Illinois Administrative Code
Title 89
Ch. III, Sec. 302.400
5)
The permanency goals of return home and adoption must have been ruled out for this child and the permanency
goal of permanent family placement must be selected.
6)
The parents must consent to the successor guardianship arrangement or the Department may proceed, for good
cause, to seek a successor guardianship without parental consent provided that the parents are given notice of the
guardianship petition hearing in accordance with Section 704-4 of the Juvenile Court Act (III. Rev. Stat. 1983, ch.
37, par. 704-4). Good cause includes, but is not limited to:
A) Parental incarceration expected to last more than 180 days,
B)
Parental illness, mental or physical incapacity, or addiction which is chronic and serious to the extent
judgment is impaired,
C)
Parental desertion, abandonment, or whereabouts unknown.
b)
Responsibilities of the Successor Guardian
1)
Successor guardians assume all the duty and authority conferred upon such persons in Section 1-11 of Juvenile
Court Act (III. Rev. Stat, 1983, ch. 37, par 701-11). Successor guardians are responsible for making the major
decisions in children's lives for whom they are guardian, but the Department shall provide consultation, including
legal and medical consultation, upon request from the successor guardian. No fees shall be charged for the
consultation.
2) Successor guardians are responsible for ensuring that parents have the opportunity to visit their children in
accordance with the provisions/orders of the court.
3)
Successor guardians are responsible for providing the Juvenile Court with updated case plans for the child once
every six months.
4)
Successor guardians are responsible for informing the Department when:
A) there have been significant changes in their circumstances or the child's circumstances which affect their
ability to care for the child, such as substantial changes in income or expenses, changes in the composition
of the household, or major health problems,
B) they are receiving income for the child including, but not limited to Social Security benefits, Supplemental
Security Income (SSI), Black Lung benefits, and child support,
C)
they stop supporting or caring for the child, or
D)
the child runs away for longer than 72 hours.
5)
Successor guardians are responsible for requesting Department services if they are needed after guardianship has
been transferred and post-transfer services have been provided.
c)
Responsibilities of Department
1)
The Department shall initiate Juvenile Court proceedings to transfer guardianship and shall assume responsibility
for costs related to these proceedings.
2)
The Department shall fully explain the duties and responsibilities of successor guardians and shall provide written
guidelines for making complex legal or medical decisions. The successor guardian's compliance with the
guidelines is not required.
3)
The Department shall, upon request of the successor guardian, provide consultation on major decisions free of
charge.
4) The Department shall assist the successor guardian in planning times and places for visitation, but is not
responsible for arranging or supervising parental visitation.
5)
The Department shall offer post-transfer of guardianship services, such as counseling or homemaker services, for
up to three months after guardianship has been transferred. No fees shall be charged for these services.
6)
The Department shall accept custody of the child in accordance with the Abused and Neglected Child Reporting
Act (III. Rev. Stat. 1983, ch. 23, pars. 2051 et seq.) if the successor guardian does not care for him or her to the
extent the child's health or well-being is endangered.
7)
The Department shall provide financial assistance for these children when their successor guardians request it and
they meet eligibility requirements in Section 302.400 (d), Subsidy for Successor Guardianship.
d)
Subsidy for Successor Guardianship
1)
Successor guardians may apply for financial assistance toward the care of the children for whom they assume
guardianship.
2)
The Department shall consider all relevant factors in determining whether initial or ongoing subsidized successor
guardianship is in the best interests of the child including, but not limited to:
A) the wishes of the child's successor guardian;
B) the wishes of the child;
C)
the interaction and interrelationship of the child with the successor guardian;
D)
the child's adjustment to the present home, school, and community;
E)
the child's need for stability and continuity of relationship with the successor guardian;
F)
the mental and physical health of all individuals involved; and
G)
whether the successor guardian is financially supporting the child.
3)
Ongoing monthly payments are available and are not to exceed $1.00 less than the Department's regular foster
care payment rate. Regular monthly income from another source for the child shall be deducted from the
89-302-11
Rule as of June 30, 1995
Title 89
Illinois Administrative Code
Ch. III. Sec. 302.400
maximum amount paid by the Department. The Department shall give the successor guardian written notice of
any decrease in the amount of financial assistance at least 10 days prior to the effective date of the decrease.
4)
Financial assistance is available after considering the relevant factors in (d) (2) above until the child attains 18
years of age except that financial assistance may continue until the child attains 21 years of age if the child has a
severe emotional disturbance, a physical disability, a social adjustment problem, or the child needs to complete an
educational or vocational training program and, in the Department's judgement, it is in the child's best interests to
remain in subsidized successor guardianship.
5)
The Department and the successor guardian shall agree to the amount and duration of the financial assistance in
writing. The amount of the financial assistance shall be reviewed at least annually. In determining the amount of
financial assistance, several factors are reviewed including, but not limited to:
A) the age of the child; and
B) current family size; and
C)
the needs of the child; and
D) the family's gross income.
6)
The Department shall not provide medical assistance to children in the successor guardianship program when
payment of medical costs is available through the Department of Public Aid, insurance benefits, or other public
programs.
(Source: Added at 10 III. Reg. 5557, effective April 15, 1986)
Title 89
Illinois Administrative Code
Ch. III, Sec. 305.40
Section 305.40 Types of Permanency Goals and
with the requirements of the service
Alternative Permanency Options
plan and are progressing satisfactorily
toward the permanency goal.
a)
The Department shall consider the recommendations of
3)
Adoption
the purchase of service providers. if any, and shall
Adoption is the preferred permanency goal
select permanency goals or alternative permanency
when parental rights have been terminated on
options for the children and families it serves in order
a child. This permanency goal is to be
to guide service planning and achieve permanent
established only:
homes for children. The Department shall ensure that
A) after both parents have signed
services provided to children and families move them
adoptive surrenders; or
toward the permanency goals or alternative
B) after a court has terminated the
permanency options. The permanency goals are:
parental rights of both parents and has
1) Remaining at Home;
designated the Department as
2) Returning Home;
guardian with the power to consent to
3) Adoption;
the child's adoption; or
4) Permanent Family Placement
C) after one parent has signed an
A) with an unrelated foster family;
adoptive surrender and parental rights
B) with relatives;
have been terminated on the
5) Independence;
remaining parent through court action;
6) Long Term Care in a Residential Facility; and
or
7) Substitute Care Pending Court Decision
D) when one parent has signed an
Regarding Termination of Parental Rights.
adoptive surrender and the identity
b) When selecting a permanency goal, the Department
and/or the whereabouts of the
shall use the criteria in this Section.
remaining parent is unknown, and the
1) Remaining at Home
Department expects the parental rights
Remaining home with their parents or private
of the remaining parent to be
guardian is the preferred goal when the child's
terminated through court action; and
safety and well-being are not clearly
E) the child, if 14 years of age or over,
endangered if allowed to remain at home.
consents to the adoption.
This permanency goal is consistent with the
4) Permanent Family Placement
Department's service goal of family
A) Although a permanent family
preservation. It emphasizes the importance of
placement is more desirable than a
keeping families together and also stresses that
series of short-term placements. it is
the family is primarily responsible for caring
not a preferred permanency goal for
for the child. In addition. this permanency
the child. Without the legal
goal is usually the least disruptive to family
safeguards offered by a permanent
life.
legal guardian, a permanent family
2) Returning Home
placement may fail to provide the
A) Returning children to their parent(s)'
child with a sense of belonging and
or private guardian(s)' homes is the
permanency A permanent family
preferred goal for children who have
placement is the permanency goal
been placed in substitute care away
only:
from their parents. This permanency
i)
when to return the child
goal is consistent with the
home is not consistent with
Department's service goal of family
ensuring the child's safety
reunification. It reinforces the
and well-being; and
family's responsibility to care for their
ii)
when the child, if 14 years
children and maintain the family
of age or older. clearly does
relationship. Furthermore. this
not want Ito be adopted or
permanency goal is usually the least
the child, if under age 14,
traumatic alternative for both the
has been provided
families and children.
counseling to help him
B) Returning home should be established as
accept another family, but
the permanency goal:
continues to be unable to
i)
when the parents appear to
accept another family; or
have the capability to attain
iii) the child is otherwise
the minimum parenting
deemed unadoptable.
standards with the aid of
B) The Department shall strive to assure
family
reunification
continuity of care, a sense of
services: and
permanency, and emotional support
ii)
when the parents are
for the child by establishing the child's
cooperative with the
permanent caregiver as the legal
Department and its purchase
guardian of the child. However, taking
of service providers, if any,
legal guardianship is not required for
and want to resolve the
the placement to be considered
problems
permanent.
C) Returning home should be continued
C) When weighing the advantages of a
as the permanency goal as long as the
permanent family placement with
parents are substantially complying
relatives against the advantages of a
Rule as of September 30. 1995
89-305-4
Illinois Administrative Code
Title 89
Ch. III, Sec. 305.40
permanent family placement with an
unsuccessful as documented
unrelated foster family. the quality of
in the case record: or
the relationship between the relatives.
ii)
The evaluations of at least
the child. the child's parents. and the
two professionals must find
child's foster parents. if any. shall be a
the parent(s) have a chronic
factor. In addition. other factors shall
incapacity which will not
be the likelihood of establishing a
respond to rehabilitation
permanent legal relationship between
and which makes it clearly
the child and the relative as compared
improbable that the parents
to the likelihood of establishing a
will attain minimum
permanent legal relationship between
parenting standards. These
the child and the unrelated foster
professionals must be
parents.
qualified by their education
5)
Independence
or experience in the fields
Independence may be a goal for adolescents
of psychiatry, psychology,
16 years of age or older who have
social work. developmental
demonstrated the ability to care for
disabilities.
chemical
themselves, who do not wish to be adopted.
dependency,
or
other
who are becoming economically self-
specialized
areas
of
sufficient. or who are establishing a family of
knowledge relevant to the
their own. When the child becomes 18, the
pending issue.
These
child must cooperate according to his service
evaluations shall weigh
plan. If the child 18 years of age or over does
whether the parents can
not cooperate. the Department may seek to
attain
the
minimum
terminate services and seek to end its legal
parenting
standards
relationship with the child.
(established
by
the
6)
Long-Term Care in a Residential Facility
Department)
after
A) A very small percentage of children
considering the public.
served by the Department are
private and extended family
determined severely physically,
resources which can assist
mentally. or emotionally handicapped
the parents with caring for
by a physician, psychiatrist, or other
the children; and
professional qualified by education or
iii)
The child, if 14 years of age
experience to make this judgment.
or older, IS in agreement
These children require long term care.
with the plan to pursue
usually in an intermediate or skilled
termination of parental
nursing facility, or in a child care
rights; and
institution. They are expected to
iv)
Department legal staff
continue to need this care in the
determine if there is
foreseeable future. For these children.
sufficient
evidence
to
long-term care in a residential facility
pursue termination of
is the permanency goal.
parental
rights
in
B)
These severely physically, mentally,
accordance with Section
or emotionally handicapped children
I(D) of the Adoption Act
who require long-term care should not
750 ILCS 50/1(D)
be confused with children who are in
B)
This goal shall continue as the
group homes or institutions in order to
permanency goal until such time as
receive intensive. short-term treatment
the court has granted or denied
directed toward correcting problems
termination of parental rights, or until
which significantly interfere with life
such time as a degree of progress is
outside the institution. Long-term
noted in the parent(s) situation which
care in 3 residential facility is not an
would require an evaluation of, and
appropriate permanency goal for
possible change in the established
children who are receiving lshort-
permanency goal pursuant to Sections
term. intensive services in a group
305.50 and 305.60.
home or institution.
C)
If the court grants termination of
7)
Substitute Care Pending Court Decision
parental rights, this goal shall be
Regarding Termination of Parental Rights
changed to adoption. If the
A)
Substitute care pending court decision
termination of parental rights petition
regarding termination of parental
is denied. another permanency goal
rights is the preferred permanency
shall be selected.
goal when a decision has been made
c)
Permanency Options
to pursue termination of parental
In addition to the permanency goals identified in
rights. This goal is to be established
subsection (b) above. the Department also recognizes
only when:
delegated relative authority as an alternative
i)
Efforts to reunite the child
permanency option which does not provide the legal
and biological or legal
status of a permanency goal, but does allow the child to
family
have
been
be placed in a stable, continuous living arrangement.
When delegated relative authority is selected as a
89-305-5
Rule as of September 30, 1995
Title 89
Illinois Administrative Code
Ch. III. Sec. 305.40
permanency option. the relative caregiver shall
The service plan is a written plan which is established
continue to receive payments for the care of the child
between the Department. the purchase of service
which shall be based on the relative caregiver's
providers. and. if possible. the child and family served.
licensing status. Administrative case reviews shall
Service plans approved by the Department are required
continue to be conducted attleast every six months.
regardless of whether the child and family are served
permanency review hearings shall continue to be held
directly by the Department or through purchase of
as required by law. and parent/child visits shall
service providers. The initial service plan shall be
continue. as appropriate. The Department retains
completed within 30 days of case opening and at least
guardianship of the child and the authority to make all
once every six months thereafter. The service plan
major medical consents and other major decisions
shall be changed and updated as the child and family's
which affect the related children's lives and health.
situation changes and shall be reviewed regularly as
d)
Delegated relative authority may be selected as a
specified in Section 305.6.
permanency option for the following types of cases:
b)
Contents of the Service Plan
1) the children have been living with a relative
Service plans shall contain the following information:
caregiver who has been licensed under 89 III.
1) the names of the children for whom the
Adm. Code 402. Licensing Standards for
Department is legally responsible or to whom
Foster Family Homes. or who continues to
the Department is providing services:
meet the conditions for placement prescribed
2)
the problems that threaten family stability or
in 89 III. Adm. Code 301, Placement and
could lead to placement of the children away
Visitation Services, Section 301.80 Relative
from the family home or have resulted in
Home Placement. and the children have
placement of the children away from the
remained with the relative caregiver for a
family home and an identification of any
minimum of one year immediately prior to
problems that are causing continued placement
establishing delegated relative authority;
of the children away from the home;
2)
the children are in the guardianship of the
3)
what outcomes would be considered a
Department immediately prior to establishing
resolution to these problems;
delegated relative authority;
4)
the services to be provided to the parents, the
3)
the children do not have extraordinary
children while in care and the foster parents (if
medical, mental health. or educational needs
necessary when children are placed in foster
which require additional casework services;
care), that may best resolve these problems:
4)
the relative caregivers have demonstrated the
5)
a description of a child's physical.
willingness and ability to protect the children
developmental, educational or mental
from persons who may harm them:
disability and any non-educational specialized
5)
the relative caregivers have demonstrated the
services the child is receiving or should
willingness and ability to appropriately control
receive for each disability. If an Individual
and supervise visits and contacts between the
Treatment Plan (ITP) or Rehabilitative
children and their biological or legal parents,
Services Plan exists for a child. it shall be
in accordance with the service plan developed
included in the record;
by the Department:
6)
a description of the educational
6)
the relative caregivers have a safe and stable
program/services the child is receiving or
home environment which poses no danger to
needs to receive (including information
the related children:
regarding Early Intervention, Headstart, or
7)
the Department has documented that
Pre-Kindergarten services for preschool
reunification with the biological or legal
children). If an Individualized Education Plan
parents within a one year period is highly
(IEP) or an Individualized Family Service Plan
unlikely for reasons such as:
(IFSP) exists for a child, the IEP or IFSP shall
A)
long-term parental incarceration: or
be included in the record;
B)
chronic and serious mental illness; or
7)
who will provide the services, how often they
C)
serious physical or mental incapacity;
will be provided. andlan explanation of why
or
these services will meet the needs of the child;
D)
addiction to drugs or alcohol which is
8)
if children are placed out of the parents' home.
not responding successfully to
the reasons for the out of home placement and
treatment, or
an explanation of why that placement setting
E)
other significant barriers to returning
was chosen;
the children home within one year;
9) the permanency goal for each child;
8)
adoption (unless adoption by the relative
10) the responsibilities of the family and the child
caregiver is pending) or private guardianship
(when appropriate) in fulfilling the service
as a permanency goal has been determined to
plan;
be not in the best interests of the related
11) the responsibilities of the Department and
children: or
purchase of service providers, if any, in
9)
other circumstances as the Department may
fulfilling the service plan;
determine to be appropriate.
12) when children and families are separated. the
parent-child visitation plan, if visitation is not
(Source. Amended at 19 III. Reg. 10487, effective July 1.
prohibited by court order. This plan shall
1995)
include the time and place of visits, the
frequency of visits, the length of visits, and
Section 305.50 Service Plan
who shall be present at the visits:
13) the timeframes for achieving the permanency
a)
Purpose of the Service Plan
goal and the objectives to resolve identified
Rule as of September 30, 1995
89-305-6
Illinois Administrative Code
Title 89
Ch. III. Sec. 305.60
problems and the specification of any
other groups of children as fiscal and staffing
consequences to the child and family if the
resources permit.
time frames are not met.
2)
Regular six month case reviews are conducted
14)
a statement that the parents or children may
for all other children and families served by
disagree with the service plan and that they
the Department.
may have their disagreement recorded; and
b)
Frequency of Case Reviews
15)
an explanation of how parents or children may
The first administrative case review shall be conducted
request an appeal and fair hearing.
within 45 days from the day the child entered substitute
c)
Copies of the Service Plan
care. All subsequent case reviews, whether an
Copies of the service plan shall be distributed in
administrative case review or a regular six month
accordance with the Department's rules on
review, are conducted on every case at least once each
confidentiality (89 III. Adm. Code 431, Confidentiality
six months unless a dispositional hearing conducted by
of Personal Information of Persons Served by the
court or a court approved panel was held the month
Department) to:
prior to a scheduled case review. In this instance, the
1)
the parents (unless parental rights have been
dispositional hearing shall replace the case review.
terminated or the Department has filed a
c)
Purpose of Case Reviews
petition seeking the termination of parental
Case reviews are conducted in order to:
rights);
1)
decide whether the Department's continuing
2)
the putative father, if he is participating in
intervention is necessary;
planning for the child;
2)
decide whether services, including placement
3)
the purchase of service providers, including
services, are necessary and appropriate;
the foster parents or relative home caretakers.
3)
identify services needed but which are not
Foster parents or relative home caretakers will
being provided to the child or family;
receive copies of the child's portion of the
4)
assess the disability status of a child to
service plan and will receive other portions of
determine the need for and/or appropriateness
the plan when they have successfully
of specialized services;
completed training prescribed by the
5)
review the appropriateness of the child's
Department. Such training will consist of
educational placement and update the child's
topics related to the service planning and
educational progress;
review process, including an overview of] the
6)
decide whether the Department, the service
participants, positive communication.
providers, the family, the substitute care
especially in confrontational situations,
provider. if any, and the child are complying
confidentiality requirements and limitations,
with the servicelplan and, if they are not
preparation for visits and reunification;
complying. whether changes in the service
4)
the child invited to the case review;
plan are needed;
5)
appropriate Department staff:
7)
decide whether there is progress to resolve the
6)
the guardian ad litem and legal represenative
child and family's problems and whether the
of the child; and
progress is satisfactory;
7)
the Juvenile Court when the court has
8)
decide whether the projected month for
jurisdiction. The initial service plan must be
achieving the permanency goal should be
submitted to the court within 30 days after a
changed;
child's placement.
9) review and change the permanency goal (if
d)
Revising the Service Plan
appropriate);
The service plan shall be revised:
10)
review and finalize the service plan for the
1)
if the current permanency goal is no longer
next six month period; and
appropriate;
11)
provide the opportunity for parents and the
2)
if the current service plan does not address the
children (if participating in the planning) to
child's needs:
understand and discuss the plan and know
3)
within six months of establishing the original
what is expected of them.
service plan;
d)
Administrative Case Reviews
4)
at least every six months thereafter.
Administrative case reviews shall:
1)
be convened by a staff member from the
(Source: Amended at 16 III. Rev. 16552. effective October
Department's Division of Administrative Case
19. 1992)
Review;
2)
include the worker and/or supervisor from the
Section 305.60 Case Review System
Department and/or the substitute care provider
agency which has case responsibility for both
a)
The Case Review System
the children and the family;
1)
The Department has a case review system for
3)
be open to the participation of the children's
all the children and families it serves. This
parents and their representatives. However, if
case review system has two components: the
parents are known to be violent and potentially
administrative case review and the regular six
dangerous to other participants in the review,
month case review. Administrative case
they will be excluded. If the Department has
reviews are conducted for children living in
filed a petition seeking the termination of
foster family homes, relative homes, group
parental rights, these parents will not be
homes, child care institutions, or detention.
invited to the review;
correctional. mental or physical health related
4)
be open to the participation of children 7 years
facilities. In addition, the Department may
of age or older who are determined able to
elect to conduct administrative case reviews on
participate without excessive harm when
89-305-7
Rule as of September 30, 1995
Title 89
Illinois Administrative Code
Ch. III, Sec. 305.60
considering their age, maturity, circumstances.
present before a case review is conducted. A service
and understanding;
plan shall be completed during the case review.
5)
be open to the participation of the foster
parents in the child's section of the review.
(Source: Amended at 16 III. Reg. 16552, effective October
Foster parents may be able to participate in
19, 1992)
other segments of the review if they have
successfully completed training on the case
Section 305.70 Roles and Responsibilities of the Administrative
review system and such participation is not
Case Reviewer
prohibited by the confidentiality provisions of
89 III. Adm. Code 431, Confidentiality of
a)
The administrative case reviewer has the responsibility
Personal Information of Persons Served by the
and authority to manage the case review process,
Department, and when such participation
which includes:
would promote achievement of the purpose of
1)
excluding or limiting participation, as needed,
the review;
to those with a right to share in the process, or
6)
be open to the participation of the guardian ad
excluding or limiting participation of any
litem and legallrepresenative of the child for
individual where necessary to promote the
the child's section of the review. The guardian
achievement of the purposes of the review;
ad litem and legal representative may
2)
convening and conducting a review in such a
participate in other segments of the review in
way as to encourage discussion and
accordance with the confidentiality provisions
participation while respecting the rights of all
of 89 III. Adm Code 431, Confidentiality of
participants;
Personal Information of Persons Served by the
3)
maintaining the focus of the group on the
Department;
service plan with good time management: and
7)
be conducted in the office serving the parent's
4)
advising clients and other participants of their
county of residence. if known and within the
rights and providing an explanation of the
State of Illinois, unless the parent agrees to
purposes of case planning and the review
travel to another office; and
process.
8)
focus on whether children should be returned
b)
The administrative case reviewer shall ensure that the
to their parents' homes or whether another
review is congruent with Department rules and
permanent home should be sought.
procedures and good child welfare practice and in
e)
Notice of Administrative Case Reviews
compliance with 42 U.S.C. 675 and any consent decree
With the exception of 45 day initial reviews for which
affecting Department practice. This responsibility
notices will be given in the most expeditious manner
includes:
possible, written notice of the date, time, place and
1) ensuring that the purposes of the
purpose of the administrative case review shall be
administrative case review are carried out;
given at least 14 days prior to the scheduled review to
2)
determining that the goal and the evaluation of
the following:
progress are consistent with the facts of the
1)
the parents. The notice shall also inform them
case as presented at the administrative case
of their rights to bring a representative with
review, that the outcomes, tasks and time
them to the review;
frames are appropriate for the goal, and
2)
the child, if participating in the review. The
amending or changing the case plan
child's participation shall depend on the child's
accordingly; and
maturity and ability to contribute and benefit
3)
Convening administrative case reviews sooner
from participation;
than the regularly scheduled six month case
3)
the child's foster parents or relative caretaker:
reviews when the facts of the case indicate the
4)
the purchase of service provider agency (if
need for a review.
applicable); and
5)
the child's legal representative.
(Source: Added at 16 III. Reg. 16552, effective October 19,
f)
Within seven days after the completion of the
1992)
administrative case review, the Department will
provide written reports on the results of the
Section 305.80 Decision Review
administrative case review. A copy of the current
service plan and the written report shall be sent to the
a)
When a service provider, including foster parents or
following:
relative caretakers, or the child's caseworker with
1)
the child, if invited to the administrative case
supervisory approval, disagrees with any portion of the
review;
service plan, including any amendments made by the
2)
the parents; and
administrative case reviewer, the provider will be
3)
subject to the confidentiality provisions of 89
entitled to a review of the issue.
III. Adm. Code 431. Confidentiality of
b)
Requests for a review shall be directed, within 5
Personal Information of Persons Served by the
working days after the administrative case review, to
Department, the guardian ad litem and legal
the Administrator of the Administrative Hearings Unit.
representative for the child and any other
c)
A decision review conference shall be held within 10
person who attended the administrative case
working days after the receipt of the request. A final
review.
decision will be made by the person appointed by the
g)
Regular Case Reviews
Director of the Department or designee, within 10
Regular case reviews are conducted by the worker
working days after the conference.
responsible for thelcase. The parents and/or the child
d)
Except when an issue affects compliance with a court
(if participating in the review) are expected to be
order or the residual rights of parents, implementation
will be stayed until the decision review conference is
Rule as of September 30, 1995
89-305-8
Illinois Administrative Code
Title 89
Ch. III, Sec. 305.120
held. The residual rights of parents as defined is Section 1-3
1)
continually miss visits with children: or
of the Juvenile Court Act of 1987 705 ILCS 405/1-3
2)
continually upset children during visitation by
include the rights to visitation. to
consent
to
verbal abuse, eliciting guilt, or by making
adoption and to determine the minor's religious
unrealistic promises; or
affiliation.
3)
continually miss appointments with
c)
If changes to the service plan are required by the
Department staff; or
decision review, copies of the changes will be sent to
4)
continually miss appointments with service
all those who are entitled to a copy of the service plan
providers; or
with a notice of the specific changes made. the reason
5)
fail to respond to the services offered: or
for the changes and a statement of the right to appeal
6)
fail to respond to instruction and assistance
any such changes.
provided by a homemaker; or
f)
When children and/or parents disagree with any
7)
fail to remedy housing or housekeeping
portion of the service plan. they may request a hearing
standards that are a threat to health or safety or
in accordance with 89 III. Adm. Code 337. Service
to seek suggested economic resources when
Appeal Process.
lack of resources is a major barrier; or
8)
otherwise fail to attain the minimum parenting
(Source: Amended at 19 III. Reg. 7171. effective June 1.
standards as defined in Section 305.2 or as
1995)
determined by the Juvenile Court.
b)
The Department shall not be persuaded to return
Section 305.90 Parent-Child Visitation
children home if parental concern for the child is
shown only by:
a)
The Department recognizes that there is a strong
1)
occasional sporadic visits and contacts;
correlation between regular parental visits and contacts
2)
elaborate or expensive gifts on holidays or
with a child and the child's discharge from placement
birthdays; or
services. Therefore, when a child is in placement and
3)
statements of concern for the children which
the permanency goal is return home. parent-child
are not supported by actions consistent with
visits. telephone calls at reasonable hours, and mail are
their safety and well-being or by preparations
encouraged unless they have been prohibited by court
for their return home.
order. The responsible agency shall arrange for parent-
child visits and shall advise parents that repeated
Section 305.110 Termination of Parental Rights
failure to visit according to the visiting plan shall be
considered a demonstration of a lack of parental
Some families are unable to achieve minimum parenting standards,
concern for the child and may result in the Department
despite comprehensive services and support from the Department.
seeking a termination of parental rights.
The Department shall seek the filing of a petition in court by the local
b)
When the permanency goal is return home. a visiting
State's Attorney for termination of parental rights. providing a child 14
plan shall:
years of age or older consents to adoption or a child, if under age 14 is
1)
be established before placement or within 3
able to accept another permanent family, when one of the grounds for
working days after placement out-of-home
termination of parental rights appears to exist, as specified in
unless the placement was an emergency;
paragraph 1501(D) of the Adoption Act (III. Rev. Stat., 1991, ch. 40,
2)
be established within 10 working days after an
par. 1501 et seq.). The final decision as to the actual filing and
emergency placement;
prosecution of a termination of parental rights case rests solely with
3)
specify that visits are to begin immediately;
the local State's Attorney.
4)
specify that parents shall be expected to visit
weekly unless there is documentation to the
(Source: Amended at 16 III. Reg. 16552, effective October
contrary in the case/record;
19. 1992)
5)
increase in length unless specific harm to the
child is caused by the visits;
Section 305.120 Planning for the Termination of Services
6)
specify visiting in the home of the child's
parents. if consistent with the safety and well-
a)
Planning for the termination of services is an integral
being of the child. When visits in the home of
part of all service planning. From its earliest contacts
the child's parents are not consistent with the
with children and families, the Department shall focus
child's safety and well-being, visits shall be in
on when and how services to the children and families
the most homelike setting possible. Office
shall end. In addition, when the Department is legally
visits are acceptable if structure is necessary to
responsible for a child, the Department shall also focus
evaluate or protect the child; and
on when and how the child shall be discharged from
7)
specify the responsibilities of the Department.
the Department's custody or guardianship.
the purchase of service providers. the parents.
b)
If the child will be returned home from substitute care,
and the child in regard to visitation.
the Department shall provide follow-up services for at
least 90 days. These services shall consist of regularly
Section 305.100 Evaluating Whether Children in Placement
scheduled telephone contacts, home visits, and family
Should Be Returned Home
adjustment counseling if needed.
c)
If the child will not be returned home from substitute
a)
When deciding whether children in placement should
care or the child will not be released from the
be returned home to their parent's care, the Department
Department's guardianship, but the permanency goal
shall consider whether the parents show an interest in
has been achieved and the child's situation is stable,
the children's well-being. The Department shall
Department intervention shall be reduced to the
consider the following as demonstrations of a lack of
minimum possible. In addition, children in substitute
interest in the children's well-being and as good
care will continue to be subject to case reviews in
reasons to continue in placement. When parents:
accordance
with
Department
policy
89-305-9
Rule as of September 30, 1995
Title 89
Illinois Administrative Code
Ch. III, Sec. 305.120
4) the actual date the permanency goal was
(Source: Amended at 16 III. Reg. 16552. effective October
achieved.
19, 1992)
b)
These reports shall also be used to measure the
effectiveness of child welfare services in the different
Section 305.130 The Department's Role in the Juvenile Court
subdivisions of Illinois and to plan statewide and local
service initiatives.
a)
The Department as an Advocate
1)
The Department shall promote a partnership
between the Juvenile Court and the
Department. Since the Department is
primarily responsible for providing public
child welfare services to children and families,
it shall make the Juvenile Court aware of the
mission of public child welfare services.
Furthermore, the Department shall advise the
Juvenile Court of the Department's planning
for the children and families it serves and of
their progress toward those goals.
2) When in the Juvenile Court, the Department
shall act as an advocate for children for whom
the Department is legally responsible and their
families and shall advise the Juvenile Court to
keep families together in all instances when it
is consistent with the children's safety and
well-being. In those instances when children
must be removed from their parent's care, the
Department shall advise the Juvenile Court to
reunite children for whom the Department is
legally responsible with their families as soon
as returning home is consistent with their
safety and well-being. Finally, when it is clear
to the Department that the child's parents are
unwilling or unable to attain the minimum
parenting standards, the Department shall urge
the Juvenile Court that a new, permanent,
home for these children is needed as soon as
they are ready to accept another home because
of the urgency of the situation from the child's
perspective.
b)
Juvenile Court Reviews
When the Department has court ordered legal
responsibility for a child. the Department shall request
Juvenile Court hearings when:
1) returning a physically abused or neglected
child to the parent's home;
2)
required by the Juvenile Court Act;
3) required by the Adoption Assistance and Child
Welfare Act of 1980; and
4) for an Indian child. required by the Indian
Child Welfare Act as explained in Part 307,
Indian Child Welfare Services.
(Source: Amended at 16 III. Reg. 16552, effective October
19, 1992)
Section 305.140 Compliance With the Client Service Planning
Requirements
a)
The Department shall develop a monitoring and
reporting mechanism to evaluate the extent of
compliance with its client service planning
requirements. At the minimum, the Department shall
monitor:
1)
the permanency goal for each child;
2)
the planned date of achievement of the
permanency goal;
3)
the extent of progress toward the permanency
goal; and
Rule as of September 30, 1995
89-305-10
32A-4-30
NEW
MEXICO
CHILDREN'S CODE
32A-4-31
Lack of notice of issue of continuation of
earlier pleadings not being verified. The court, there-
parental rights violates mother's due process
fore, was not deprived of subject matter jurisdiction.
rights. - Since the issue of termination of parental
Laurie R. V. New Mexico Human Servs. Dep't, 107
rights was not raised in the pleadings, nor properly
N.M. 529, 760 P.2d 1295 (Ct. App. 1988) (decided
tried and was mentioned for the first time after
prior to 1993 revision).
closing arguments, when counsel for the father made
Authority of court after mother's consent de-
an oral motion that the parental rights of the mother
clared invalid. - Since the mother's consent to
be terminated, the procedural due process rights of
adoption has been declared invalid in keeping with
the mother were violated as she was never given
the best interests of the child, the trial court retains
notice that the continuation of her parental rights
was at issue, she did not have a full opportunity to
the power to determine custody in the absence of a
prepare her case and, consequently, she was not
legally valid consent, and it is within the authority
given a full and fair hearing. Thatcher V. Arnall, 94
of the trial court to continue the child in the custody
N.M. 306, 610 P.2d 193 (1980) (decided prior to 1993
of the couple seeking to adopt her. Although they
revision).
lacked standing to petition the court for adoption,
Sufficiency of notice. - Although the summons
they were not left without remedy, since they did
served upon a father in a termination of parental
have standing to seek relief. In re Samantha D., 106
rights action did not meet the requirements in the
N.M. 184, 740 P.2d 1168 (Ct. App. 1987) (decided
statute, there was no showing that the father was
prior to 1993 revision).
prejudiced by the various errors in the notice. Ron-
Right to competent counsel. - The right of a
ald A. V. State ex rel. Human Servs. Dep't, 110 N.M.
parent to counsel includes the right to competent
454, 794 P.2d 371 (Ct. App. 1990) (decided prior to
counsel. In a trial the judge has an obligation to
1993 revision).
facilitate the resolution of the issue of whether that
Prior proceeding concerned with the fact of
parent has received effective assistance of counsel by
neglect is not a jurisdictional bar to a later,
holding an evidentiary hearing if he or she expresses
separate termination proceeding. State ex rel. Hu-
concerns that merit such a hearing. In re James
man Servs. Dep't V. Levario, 98 N.M. 442, 649 P.2d
W.H., 115 N.M. 256, 849 P.2d 1079 (Ct. App. 1993)
510 (Ct. App. 1982) (decided prior to 1993 revision).
(decided prior to 1993 revision).
Since neglect proceedings do not result in
The Rules of Civil Procedure apply in all pro-
final judgment on merits, the department is not
ceedings to terminate parental rights. State ex rel.
barred under the "judgments" rule from later bring-
Children, Youth & Families Dep't In re T.C., 118
ing termination proceedings. State ex rel. Human
N.M. 352, 881 P.2d 712 (Ct. App. 1994).
Servs. Dep't V. Levario, 98 N.M. 442, 649 P.2d 510
Summary judgment may be used to termi-
(Ct. App. 1982) (decided prior to 1993 revision).
nate parental rights where there are no issues of
Verification of pleadings. - Although the hu-
fact underlying the basis or termination. State ex
man services department failed to obtain the court's
rel. Children, Youth & Families Dep't In re T.C., 118
permission prior to filing its amended petitions to
N.M. 352, 881 P.2d 712 (Ct. App. 1994).
terminate parental rights, the court granted permis-
Am. Jur. 2d, A.L.R. and C.J.S. references. -
sion to file the final amended petition and verifica-
Admissibility at criminal prosecution of expert testi-
tion prior to the commencement of trial. Allowance of
mony on battering parent syndrome, 43 A.L.R.4th
this amendment rectified any insufficiency in the
1203.
32A-4-30. Attorneys' fees.
The court may order the department to pay attorneys' fees for the child's guardian ad
litem if:
A. the child is in the custody of the department;
B. the child's guardian ad litem:
(1) requests in writing that the department move for the termination of parental
rights;
(2) gives the department written notice that if the department does not move for
termination of parental rights, the guardian ad litem intends to move for the termination of
parental rights and seek an award of attorneys' fees;
(3) successfully moves for the termination of parental rights; and
(4) applies to the court for an award of attorneys' fees; and
C. the department refuses to litigate the motion for the termination of parental
rights or fails to act in a timely manner.
History: 1978 Comp., § 32A-4-30, enacted by
Laws 1993, ch. 77, § 124.
32A-4-31. Permanent guardianship of a child.
A. In proceedings for permanent guardianship, the court shall give primary consider-
ation to the physical, mental and emotional welfare and needs of the child. Permanent
guardianship vests in the guardian all rights and responsibilities of a parent, other than
D
92
32A-4-32
CHILD ABUSE AND NEGLECT
32A-4-32
those rights and responsibilities of the natural or adoptive parent, if any, set forth in the
decree of permanent guardianship.
B. Any adult, including a relative or foster parent, may be considered as a permanent
guardian, provided that the department grants consent to the guardianship if the child is in
the department's custody. An agency or institution may not be a permanent guardian. The
court shall appoint a person nominated by the child, if the minor is fourteen years of age or
older, unless the court finds the appointment contrary to the best interests of the child.
C. The court may establish a permanent guardianship between a child and the guardian
when the prospective guardianship is in the child's best interest and when:
(1) the child has been adjudicated as an abused or neglected child;
(2) the department has made reasonable efforts to reunite the parent and child and
further efforts by the department would be unproductive;
(3) reunification of the parent and child is not in the child's best interests because the
parent continues to be unwilling or unable to properly care for the child; and
(4) the likelihood of the child being adopted is remote or it is established that
termination of parental rights is not in the child's best interest.
History: 1978 Comp., $ 32A-4-31, enacted by
Compiler's notes. - This section is substantively
Laws 1993, ch. 77, $ 125.
similar to former 32-1-58 NMSA 1978.
32A-4-32. Permanent guardianship; procedure.
A. A motion for permanent guardianship may be filed by any party.
B. Any application for permanent guardianship shall be signed and verified by the
petitioner, filed with the court and set forth:
(1) the date, place of birth and marital status of the child, if known;
(2) the facts and circumstances supporting the ground for permanent guardianship;
(3) the name and address of the prospective guardian and a statement that the
person agrees to accept the duties and responsibilities of guardianship;
(4) the basis for the court's jurisdiction;
(5) the relationship of the child to the petitioner and the prospective guardian; and
(6) whether the child is subject to the federal Indian Child Welfare Act of 1978 and,
if so:
(a) the tribal affiliations of the child's parents;
(b) the specific actions taken by the petitioner to notify the parents' tribe and the
results of the contacts, including the names, addresses, titles and telephone numbers of the
persons contacted. Copies of any correspondence with the tribes shall be attached as
exhibits to the petition; and
(c) what specific efforts were made to comply with the placement preferences set
forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the
appropriate Indian tribes.
C. If the petition is not filed by the prospective guardian, the petition shall be verified by
the prospective guardian.
D. Notice of the filing of the motion, accompanied by a copy of the motion, shall be served
by the moving party on any parent who has not previously been made a party to the
proceeding, the parents of the child, foster parents with whom the child is residing, foster
parents with whom the child has resided for six months, the child's custodian, the
department, any person appointed to represent any party, including the child's guardian ad
litem, and any other person the court orders provided with notice. Service shall be in
accordance with the Rules of Civil Procedure for the District Courts for the service of process
in a civil action in this state. The notice shall state specifically that the person served must
file a written response to the application within twenty days if the person intends to contest
the guardianship.
E. When the child is an Indian child, subject to the federal Indian Child Welfare Act of
1978, notice shall also be served upon the Indian tribes of the child's parents and upon any
"Indian custodian" as that term is defined in 25 U.S.C. Section 1903(6).
93
32A-4-33
CHILDREN'S CODE
32A-4-33
F. The grounds for permanent guardianship shall be proved by clear and convincing
evidence. The grounds for permanent guardianship must be proved beyond a reasonable
doubt and meet the requirements of 25 U.S.C. Section 1912(f) in any proceeding involving
a child subject to the federal Indian Child Welfare Act of 1978.
G. A judgment of the court vesting permanent guardianship with an individual divests
the biological or adoptive parent of legal custody or guardianship of the child, but is not a
termination of the parent's rights. A child's inheritance rights from and through the child's
biological or adoptive parents are not affected by this proceeding.
H. Upon a finding that grounds exist for a permanent guardianship, the court may
incorporate into the final order provisions for visitation with the natural parents, siblings or
other relatives of the child and any other provision necessary to rehabilitate the child or
provide for the child's continuing safety and well being.
I. The court shall retain jurisdiction to enforce its judgment of permanent guardianship.
J. Any party to the abuse or neglect proceeding, the child or a parent of the child may
make a motion for revocation of the order granting guardianship when there is a significant
change of circumstances including:
(1) the child's parent is able and willing to properly care for the child; or
(2) the child's guardian is unable to properly care for the child.
K. The court shall appoint a guardian ad litem for the child in all proceedings for the
revocation of permanent guardianship.
L. The court may revoke the order granting guardianship when a change of circum-
stances has been proven by clear and convincing evidence and it is in the child's best
interests to revoke the order granting guardianship.
History: 1978 Comp., $ 32A-4-32, enacted by
Indian Child Welfare Act. - The federal Indian
Laws 1993, ch. 77, § 126.
Child Welfare Act of 1978 is codified at 25 U.S.C.
Compiler's notes. - This section is substantively
§ 1901 et seq.
similar to former 32-1-59 NMSA 1978.
32A-4-33. Confidentiality; records; penalty.
A. All records concerning a party to a neglect or abuse proceeding, including social
records, diagnostic evaluation, psychiatric or psychological reports, videotapes, transcripts
and audio recordings of a child's statement of abuse, or medical reports, that are in the
possession of the court or the department as the result of a neglect or abuse proceeding or
that were produced or obtained during an investigation in anticipation of or incident to a
neglect or abuse proceeding shall be confidential and closed to the public.
B. The records described in Subsection A of this section shall be open to inspection only
by:
(1) court personnel;
(2) court appointed special advocates;
(3) the child's guardian ad litem;
(4) department personnel;
(5) any local substitute care review board or any agency contracted to implement
local substitute care review boards;
(6) law enforcement officials, except when use immunity is granted pursuant to
Section 32-4-11 [32A-4-11] NMSA 1978;
(7) district attorneys, except when use immunity is granted pursuant to Section
32-4-11 [32A-4-11] NMSA 1978;
(8) any state government social services agency in any state;
(9) those persons or entities of an Indian tribe specifically authorized to inspect the
records pursuant to the federal Indian Child Welfare Act of 1978 or any regulations
promulgated thereunder;
(10) a foster parent, if the records are those of a child currently placed with that
foster parent or of a child being considered for placement with that foster parent and the
records concern the social, medical, psychological or educational needs of the child;
94
32A-6-1
CHILDREN'S MENTAL HEALTH AND DEVELOPMENT DISABILITIES
32A-6-1
B. Subsidy payments may include payments to vendors for medical and surgical
expenses and payments to the adoptive parents or permanent guardians for maintenance
and other costs incidental to the adoption, care, training and education of the child. The
payments in any category of assistance shall not exceed the cost of providing the assistance
in foster care and shall not be made after the child reaches eighteen years of age.
C. A written agreement between the adoptive family or permanent guardians and the
social services division shall precede the decree of adoption or permanent guardianship. The
agreement shall incorporate the terms and conditions of the subsidy plan based on the
individual needs of the child within the permanent family. In cases of subsidies that
continue for more than one year, there shall be an annual redetermination of the need for
a subsidy. The social services division shall develop an appeal procedure whereby a
permanent family may contest a division determination to deny, reduce or terminate a
subsidy.
History: 1978 Comp., $ 32A-5-45, enacted by
Compiler's notes. - This section is substantively
Laws 1993, ch. 77, § 172.
similar to former 40-7-65 NMSA 1978.
32A-5-42
CHILDREN'S CODE
32A-5-45
I recognize that unauthorized release of information is a violation of the Adoption Act [this
article] and subjects me to penalties pursuant to the provisions of Section 32A-5-42 NMSA
1978 and may subject me to being found in contempt of court with penalties, dismissal by
the court and civil liability."
History: 1978 Comp., $ 32A-5-41, enacted by
D, E, F. and G, substituted "32A-5-42" for "32-5-42"
Laws 1993, ch. 77, $ 168; 1995, ch. 206, § 44.
in Subsection J, and made minor stylistic changes
The 1995 amendment, effective July 1, 1995,
throughout the section.
substituted "32A-5-40" for "32-5-40" in Subsections
32A-5-42. Penalties.
A. Any person other than an agency who, in the regular course of business, selects an
adoptive family for a prospective adoptee or arranges for the selection is guilty of a
misdemeanor and subject to imprisonment in the county jail for a definite term of less than
one year or to the payment of a fine of not more than one thousand dollars ($1,000), or to
both, the penalties to be in the discretion of the judge, for each occurrence; provided, that the
exchange of information between persons regarding the existence of a potential adoptee or
potential adoptive family shall not be a violation of this section.
B. Any person who violates any provision of the Adoption Act [this article] is guilty of a
misdemeanor and subject to imprisonment in the county jail for a definite term of less than
one year or to the payment of a fine of not more than one thousand dollars ($1,000), or both,
the penalties to be in the discretion of the judge, for each occurrence.
History: 1978 Comp., $ 32A-5-42, enacted by
Compiler's notes. - This section is substantively
Laws 1993, ch. 77, 1 169.
similar to former 40-7-61 NMSA 1978.
32A-5-43. Purpose of subsidized adoptions.
It is the purpose of Sections 32-5-43 [32A-5-43] through 32-5-45 [32A-5-45] NMSA 1978 to
encourage and promote the placement of children who are difficult to place in permanent
homes through a subsidized program within the social services division of the department.
History: 1978 Comp., § 32A-5-43, enacted by
Compiler's notes. - This section is substantively
Laws 1993, ch. 77, $ 170.
similar to former 40-7-63 NMSA 1978.
32A-5-44. Eligibility for subsidized adoptions.
A. The social services division of the department may make payments to adoptive
parents or to medical vendors on behalf of a child placed for adoption by the division or by
a child placement agency licensed by the division when the division determines that:
(1) the child is difficult to place; and
(2) the adoptive family is capable of providing the permanent family relationship
needed by the child in all respects, except that the needs of the child are beyond the
economic resources and ability of the family.
B. As used in Sections 32-5-43 [32A-5-43] through 32-5-45 [32A-5-45] NMSA 1978, a
"difficult to place child" means a child who is physically or mentally handicapped or
emotionally disturbed or who is in special circumstances by virtue of age, sibling relation-
ship or racial background.
History: 1978 Comp., § 32A-5-44, enacted by
Compiler's notes. - This section is substantively
Laws 1993, ch. 77, § 171.
similar to former 40-7-64 NMSA 1978.
32A-5-45. Administration of subsidized adoptions.
A. The social services division of the department shall promulgate all necessary regula-
tions for the administration of the program of subsidized adoptions or placement with
permanent guardians.
128
APPENDIX C
COMPARISON CHART OF STATE PROGRAMS
OF SUBSIDIZED LEGAL GUARDIANSHIP
STATE SUBSIDIZED LEGAL
GUARDIANSHIP PROGRAMS *
AL
CA
HI
IL **
MA
NE
NM
SD
WA
ADMINISTRATION
STATE
COUNTY
STATE
STATE
STATE
STATE
STATE
STATE
STATE
Eligibility
Required to be in
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Custody of State?
Minimum Time
6 months
1 year
18 mos.
1 year
1 year
6 mos.
none
6 mos.
6 mos.
in placement
Minimum Age of Child
None but prefer
None
None
14
12, unless part
12, unless part of
None
6
None
over 10
of sibling
sibling group or
group or in
a relative
best interest of
child
Parental Consent
No
No
No
No
No
No
No
No
No
Required?
Child's Consent
Yes, if over 10
No
No
Yes, if over 14
Yes, if over 12
Yes, if over 14
Yes, if over 14
No
No
Required?
Relatives Eligible for
Yes
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Subsidy?
Certification Required?
No
Yes, unless
No
Yes, unless
Yes
Yes, unless
No
No
Yes
relative
relative
relative
Other criteria
Child "hard to
Reunif. and
Parental rights
Reunif. and
Reunif. and
Child "hard to
Reasonable
Best interests
Reunif. not
place"; reunif. and
adoption not
terminated or
adoption not
adoption not
place"; reunif.
efforts to
of child to be
possible;
adoption not
possible
parents consent;
possible
possible or not
and adoption not
reunify have
placed in
adoption not in
likely or not in
reunif. and
in best interest
possible; no
failed; child
guardianship
best interest of
best interest of
adoption possible;
of child
Dept. service
unlikely to be
child
child
no special needs
needed
adopted or not
which would req.
in best interest
Dept. services
of child
AL
CA
HI
IL
**
MA
NE
NM
SD
WA
STATE
STATE
Policy &
Procedures
Authority for
Statute
Regulations
Statute
Regulation
Regulations
Statute
Statute
Policy
Statute
Program
Court Jurisdiction
State
Juvenile
Juvenile
Juvenile
Probate
Probate
Juvenile
State
Juvenile
Follow-up Services
None
Yes, for non-
None
Provided for 3
Upon Request
None
None
None
None
relatives
months after order ;
upon request
thereafter
Annual report
Six-month
Annual re-cert
Annual re-cert
Annual re-cert
Annual re-cert
Annual re-cert
Annual re-
Annual re-
Follow-up Reviews
agency visits
cert
cert
from guardian
and re-cert
Visitation Rights of
Encouraged
Included in
None required
Yes, if court ordered
Discretion of
None required
May be included
None
Included in
Birth Parents
guard. order if in
guardian
in guard. order
required
guard. order if
best interest of
in best
interest of
child
child
Subsidy
Determination of
Not more than
Non-relatives
F.C. rate, less
$1.00 less than F.C.
F.C. rate less other
Not more than F.C.
Not more than
F.c. rate or
F.C. rate less
amount
F.C. rate; needs
F.C. rate if
earned &
rate less income of
government benefits
rate; needs of child;
F.C. rate; needs
reduced rate
other
of child;
receive supv.;
unearned
child
resources of
of child
based on
unearned
income of
income of
resources of
relatives AFDC -
income of
guardian; unearned
guardian;
rates.
child
income of child
guardianship
child
unearned
family
income child
Written Agreement
Yes
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Requalification
Annual
6 mos.
Annual
Annual
Annual
Amount calculated
Amount
Amount
Annual
annually
calculated
calculated
annually
annually
Disqualification
Guardianship
Child no longer
Age 18 or
Age 18 of
Child no longer in
Family no longer
Guardianship or
Guardianship
Guardianship
terminates;
in care of
complete high
guardianship
home of guardian;
needs assistance; Age
care of child
or care of
or care of
child
failure to
guardian
school; Age 22
terminates
guard term; failure to
19; guardianship
terminates
child
submit annual
if in college:
renew subs agree
terminates
terminates
terminates
report
guardianship
terminates
Statistics
Crn in program
160
300
100
20
1,500
291
0
40
1,600
Total Crn in Care
1700
75,000
2,100
50,000
7,500
5,500
3,500
800
10,000
(FC, Adpt Guards.)
% of Total Crn in
33%
50%
50%
55%
50%
33%
33%
40%
50%
Kinship Care
*
Colorado was reported to have a Subsidized Guardianship program. However, their program is Foster Care with Guardianship, which is not actual
guardianship since the state retains legal custody and the case remains open as a foster care case.
*
Illinois has prepared a Title IV-E Waiver Project of Subsidized Guardianship with different characteristics than those shown here for the current program of
Successor Guardianship.
APPENDIX D
ASSISTED GUARDIANSHIP PROGRAM OF
THE STATE OF DELAWARE PURSUANT TO
TITLE IV-E WAIVER PROPOSAL²⁸
28 Information was obtained from telephone interviews with a state administrator; the Child Welfare Waiver
Demonstration Prooposal submitted by the Delaware Division of Family Services; Division policies and
procedures; and Delaware statute Title 31, Section 304, as amended by the Delaware state legislature on April 23,
1996.
In August, 1996, the State of Delaware received approval of a Child Welfare Title IV-E
Waiver Demonstration Project from the U.S. Department of Health and Human Services. With this
approval, Delaware's Division of Family Services will provide continued financial support to foster
parents who assume guardianship of the children in their care. The Waiver Demonstration Program
will allow the state to use Title IV-E funds for up to ten such cases each year for the next three years,
although another ten cases will be subsidized at the same level using exclusively state funds. The state
will monitor the costs of providing assistance in all cases, and will specifically examine the
administrative and program cost savings to the state realized by closing the cases as foster care
placements.
In drafting their Assisted Guardianship program, Delaware administrators reviewed the
subsidized guardianship programs of other states, such as Massachusetts and Nebraska, and adopted
many similar provisions. The state legislature also adopted a revision to a state statute which
authorizes the Division of Family Services to continue financial support at the foster care level for
caregivers who assume legal guardianship of the foster children in their care.
Like other states studied, Delaware recognizes that family preservation, reunification and
above all, the safety of the children, should be the main goals of their program. However, they also
recognize that permanence is very important for the children in care, and that sometimes,
reunification, adoption and termination of parental rights simply do not serve the best permanency
needs of those children. Therefore, in these cases, the state's next priority for permanency is legal
guardianship.
To be eligible for the Delaware's Assisted Guardianship program, it is necessary that: the
child cannot return home; it is unreasonable to pursue adoption; the child has a stable and positive
relationship with the prospective guardian, having lived successfully for a minimum of one year in
their home; the prospective guardian is an approved relative or non-relative foster care provider; the
child is at least age 12, unless he or she has special needs or is part of a sibling group to be placed
together; and all parties agree that the child and prospective guardian can maintain a stable
relationship without state supervision.
The state caseworker and supervisor make the original determination of the eligibility and
appropriateness of guardianship, and present their recommendation to a TPR/Adoption committee
for review. If the TPR/Adoption committee agrees, the caseworker discusses the policies and
procedures with the prospective guardian, and then with the child. Written consent of the
prospective guardian and the child, if over the age of 12, are necessary. Consent of the birth parents
is sought, but the guardianship petition can proceed without parental consent. The guardianship
petition is prepared by the caseworker, and sent to the Attorney General's office for filing in the
state's Family Court.
If financial assistance is needed by the prospective guardian, an Application for Assisted
Guardianship is made and a written Agreement for Assisted Guardianship is entered into by the state
and the guardian. After the guardianship is awarded, the Adoption Manager assumes responsibility
for the payment of the subsidy. An Assisted Guardianship Reapplication is sent by the Adoption
Manager to the guardian six months after the award, and annually thereafter. If the family still
qualifies for support, the guardian must sign a new Agreement of Assisted Guardianship to continue
to receive the subsidy.
The cases are closed as foster care placements, and all Division supervision and court reviews
cease. However, if a Termination of Parental Rights has been obtained prior to the assumption of
guardianship, the case will remain open and the caseworker will continue to submit six-month TPR
court reports in accordance with Delaware law.
Delaware provides financial support to qualifying guardians at the foster care rate. The state
seeks to have the guardian secure private medical insurance for the child, if possible, of will attempt
to provide Medicaid benefits. As stated, under the Title IV-E Waiver Proposal, the state is
authorized to obtain IV-E reimbursement for up to ten families per year for the first three years of
the program. Other Assisted Guardianship placements would be fully subsidized by the state.
Deductions in the amount of the subsidy are made if the child receives other government benefits,
such as Social Security or Veteran's benefits, or child support from his or her parents.
The state has seen a rise in the number of children entering the foster care system in recent
years. There were 638 children in care in the state in 1992; by 1996, this number had risen to an
estimated 835 children. Parental substance abuse is a factor in more than 50% of the children
coming into care, and the Division of Family Services is contracting with substance abuse treatment
agencies to provide counseling services to some 180 families per year. As stated, it is the intention of
the state to provide a subsidy to 20 guardianship placements each year for the next three years, half
of which will be eligible for Title IV-E reimbursement.