Kinship Guardianship as a Permanency Option - Arizona

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Definitions

Citation: Rev. Stat. § 8-501

The term 'relative' means a grandparent, great-grandparent, brother or sister of whole or half blood, aunt, uncle, or first cousin.

Purpose of Guardianship

Citation: Rev. Stat. § 8-871; Pol. & Proc. Man. Ch. 5, § 29

The court may establish a permanent guardianship between a child and the guardian if the prospective guardianship is in the child's best interests and all of the following apply:

  • The child has been adjudicated a dependent child or is the subject of a pending dependency petition filed by the Department of Child Safety.
  • The child has been in the custody of the prospective permanent guardian for at least 9 months. The court may waive this requirement for good cause.
  • If the child is in the custody of the department or agency, the department or agency has made reasonable efforts to reunite the parent and child and further efforts would be unproductive. The court may waive this requirement if it finds one or more of the following:
    • Reunification efforts are not required by law.
    • Reunification of the parent and child is not in the child's best interests because the parent is unwilling or unable to properly care for the child.
    • The child is the subject of a pending dependency petition and there has been no adjudication of dependency.
  • The likelihood that the child would be adopted is remote, or termination of parental rights would not be in the child's best interests.

In policy: The department shall consider recommending a permanency plan of guardianship when the prospective permanent guardian has made a commitment to provide care and support to the child, and guardianship is in the child's best interests.

A Guardian's Rights and Responsibilities

Citation: Rev. Stat. §§ 8-871; 14-5209(A), (C)

Unless otherwise set forth in the final order of permanent guardianship, a permanent guardian is vested with all of the rights and responsibilities set forth in § 14-5209 relating to the powers and duties of a guardian of a minor, other than those rights and responsibilities of the birth or adoptive parent, if any, that are set forth in the decree of permanent guardianship.

A guardian of a minor has the powers and responsibilities of a custodial parent regarding the ward's support, care, and education. A guardian is not personally liable for the ward's expenses and is not liable to third persons by reason of the relationship for acts of the ward.

A guardian may:

  • Receive monies payable for the support of the ward under the terms of any statutory benefit, insurance system, private contract, devise, trust, conservatorship, or custodianship
  • Take custody of the ward and establish the ward's place of residence in or outside this State, if consistent with the terms of an order of a court of competent jurisdiction relating to the detention or commitment of the ward
  • Facilitate the ward's education, social, or other activities, and consent to medical or other professional care, treatment, or advice for the ward
  • Consent to the marriage or adoption of the ward
  • If reasonable, delegate to the ward certain responsibilities for decisions affecting the ward's well-being

Qualifying the Guardian

Citation: Rev. Stat. §§ 8-871; 8-872

The court may consider any adult, including a relative or foster parent, as a permanent guardian. The court may appoint a person nominated by the child if the child is at least age 12, unless the court finds that the appointment would not be in the child's best interests. The court shall consider the child's objection to the appointment of the person nominated as permanent guardian. In proceedings for permanent guardianship, the court shall give primary consideration to the physical, mental, and emotional needs and safety of the child.

Before a final hearing, the department, the agency, or a person designated as an officer of the court shall conduct an investigation addressing the factors set forth in § 8-871, whether the prospective permanent guardian or guardians are fit and proper persons to become permanent guardians, and whether the best interests of the child would be served by granting the permanent guardianship. The findings of this investigation shall be set forth in a written report provided to the court and all parties before the hearing. The court may require additional investigation if it finds that the welfare of the child will be served or if additional information is necessary to make an appropriate decision regarding the permanent guardianship.

Before the court may appoint a guardian, the court shall require the prospective guardian to furnish either a valid fingerprint clearance card or a full set of fingerprints to enable the court to determine the applicant's suitability as guardian. If the prospective guardian does not submit a valid fingerprint clearance card, the prospective guardian shall submit a full set of fingerprints to the court for the purpose of obtaining a State and Federal criminal records check. The Department of Public Safety may exchange this fingerprint data with the Federal Bureau of Investigation.

Procedures for Establishing Guardianship

Citation: Rev. Stat. § 8-872

Any party to a dependency proceeding may file a motion for permanent guardianship. The person who files the motion shall serve notice of the hearing and a copy of the motion on all parties, including any person who has filed a petition to adopt or who has physical custody pursuant to a court order in a foster-adoptive placement. The person who files the motion shall provide a copy of the notice of hearing to the following persons:

  • The child's current physical custodian
  • Any foster parent with whom the child has resided within the 6 months before the date of the hearing
  • The prospective guardian if the guardian is not the current physical custodian
  • Any other person the court orders to be provided notice

The person who files the motion has the burden of proof by clear and convincing evidence. In any proceeding involving a child who is subject to the Federal Indian Child Welfare Act, the person who files the motion has the burden of proof by beyond a reasonable doubt.

On the entry of the order establishing a permanent guardianship, the dependency action shall be dismissed. If the child was in the legal custody of the department during the dependency, the court may order the department to conduct the investigation and prepare the report for the first report and review hearing. The court shall retain jurisdiction to enforce its final order of permanent guardianship. The court shall require a report and review hearing to be held within 1 year following the entry of the final order and may set such other and further proceedings as may be in the best interests of the child. Before a report and review hearing, the court may require an investigation to be conducted of the facts and circumstances surrounding the welfare and best interests of the child and a written report to be filed with the court.

Contents of a Guardianship Order

Citation: Rev. Stat. § 8-872

A court order vesting permanent guardianship with an individual divests the birth or adoptive parent of legal custody of or guardianship for the child but does not terminate the parent's rights. A court order for permanent guardianship does not affect the child's inheritance rights from and through the child's birth or adoptive parents.

On 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 if this order would be in the child's best interests. The order also may include any other provision that is necessary to rehabilitate the child or to provide for the child's continuing safety and well-being. The court may order a parent to contribute to the support of the child to the extent it finds the parent is able.

Modification/Revocation of Guardianship

Citation: Rev. Stat. §§ 8-873; 14-5209

The child, a parent of the child, the guardian of the child, or any party to the dependency proceeding may file a petition for the revocation of an order granting permanent guardianship if there is a significant change of circumstances, including the following:

  • The child's parent is able and willing to properly care for the child.
  • The child's permanent guardian is unable to properly care for the child.

The court shall appoint a guardian ad litem for the child in any proceeding for the revocation of permanent guardianship.

The court may revoke the order granting permanent guardianship if the party petitioning for revocation proves a change of circumstances by clear and convincing evidence and the revocation is in the child's best interests.

In the interest of developing self-reliance on the part of a ward or for other good cause, the court, at the time of appointment or later, on its own motion or on appropriate petition or motion of the minor or other interested person, may create a limited guardianship by limiting the powers of a guardian otherwise conferred by this section. Any limitation on the statutory power of a guardian of a minor must be endorsed on the guardian's letters.

Kinship Guardianship Assistance

Citation: Rev. Stat. § 8-814; Pol. & Proc. Man. Ch. 5, § 31

The department may provide a subsidy to guardian on behalf of a child subject to the requirements of this section. The department shall determine the appropriate amount of the subsidy, which shall not exceed the maintenance payment allowable for an adoption subsidy. The amount of the subsidy shall be offset by benefits received from other State or Federal programs to which the child is entitled.

The department shall discontinue a subsidy if any of the following occurs:

  • The permanent guardianship terminates.
  • The child dies or does not reside with the permanent guardian.
  • The child reaches age 18, except that the department may continue the subsidy until the child's 22nd birthday if the child is enrolled in and regularly attending school and has not received a high school diploma or certificate of equivalency.
  • The guardian fails to comply with any requirement in this section.

In policy: A permanent guardian is eligible for guardianship subsidy if permanent guardianship was granted on or after August 6, 1999, and applications for other State and Federal benefits have been made on behalf of the child by the guardian.

The guardianship subsidy program supports permanent placements for children who achieve permanency through permanent guardianship. The guardianship subsidy is intended to be only a partial reimbursement for expenses involved in the care of the child.

Links to Agency Policies

Division of Child Safety and Family Services, Policy & Procedure Manual, see chapter 5, § 28, et seq., Guardianship.