Kinship Guardianship as a Permanency Option - Arkansas

Date: July 2018

Definitions

Citation: Ann. Code §§ 9-27-303; 9-28-108

A 'custodian' is a person other than a parent or legal guardian who stands in loco parentis to the juvenile or a person, agency, or institution to whom a court of competent jurisdiction has given custody of a juvenile by court order. The term 'custodian' includes a person to whom a court of competent jurisdiction has given custody, including a legal guardian.

A 'guardian' is any person, agency, or institution, as defined by § 28-65-101, et seq., whom a court of competent jurisdiction has so appointed.

'Permanent custody' means custody that is transferred to a person as a permanency disposition in a juvenile case and the case is closed.

'Fictive kin' means a person selected by the Division of Children and Family Services who is not related to a child by blood or marriage and has a strong, positive, and emotional tie or role in the child's life or the child's parent's life, if the child is an infant.

'Relative' means a person within the fifth degree of kinship by virtue of blood or adoption.

From A Relative's Guide to the Arkansas Child Welfare System:

'Guardianship': Granted by the court, legal guardianship is a legal, permanent connection for the child, although not as permanent as adoption; no further court hearings are required. For a legal guardianship, the Department of Human Services will conduct an annual review of the family's and child's circumstances, and an annual report to the court must be filed.
'Permanent custody' : Granted by the court, permanent custody requires no further services or periodic reviews. The case will be closed and the family will not receive support from the department. This is different from legal guardianship as the relative will not qualify for a subsidy and the department does not file an annual report with the court.

Purpose of Guardianship

Citation: Ann. Code § 9-28-1003; Admin. Code 016 00 CARR 011, Policy VI-B

A child in foster care shall be entitled to be placed in the custody or foster home of relatives, if appropriate, provided the relative caregiver meets all relevant child protection standards.

In regulation: In all custodial placements by the department in foster care or adoption, preferential consideration shall be given to an adult relative over a nonrelated caregiver if the relative caregiver meets all relevant child protection standards and it is in the best interests of the child to be placed with the relative caregiver. If there are no available and/or appropriate relatives within the fifth degree of kinship to the child, then the department shall attempt to identify appropriate fictive kin, to include people beyond the fifth degree of kinship by virtue of blood or adoption, as a placement option for the child.

Relatives and fictive kin have the option of obtaining permanent custody or guardianship if all efforts toward reunification are exhausted and/or to achieve case plan goals for permanency. If the court grants permanent custody, or guardianship is granted, the protective services case will be closed.

A Guardian's Rights and Responsibilities

Citation: Ann. Code § 9-27-353

It shall be the duty of any person or agency appointed as the custodian of any child to care for and maintain the child. The custodian must ensure that the child is protected, properly trained and educated, and has the opportunity to learn a trade, occupation, or profession.

The custodian of a child has the right to obtain medical care for the child, including giving consent to specific medical, dental, or mental health treatments and procedures as required in the opinion of a duly authorized or licensed physician, dentist, surgeon, or psychologist, whether or not such care is rendered on an emergency, inpatient, or outpatient basis.

If there is an open dependency-neglect proceeding, the custodian shall not make any of the following decisions without receiving express court approval:

Consent to the removal of bodily organs, unless the procedure is necessary to save the life of the child
Consent to withhold life-saving or life-sustaining treatments
Consent to the amputation of any body part, unless the procedure is necessary in an emergency to save the life of the child

The custodian has the right:

To enroll the child in school upon the presentation of an order of custody
To obtain medical and school records of any child in his or her custody upon presentation of an order of custody
To consent to the child's travel on vacation or similar trips

It shall be the duty of every person granted custody, guardianship, or adoption of any child in a proceeding arising out of a dependency-neglect action to ensure that the child is not returned to the care or supervision of any person from whom the child was removed or any person the court has specifically ordered not to have care, supervision, or custody of the child.

Qualifying the Guardian

Citation: Ann. Code §§ 9-8-204; 9-27-303(29)

A relative may be appointed guardian of a child when the department determines the following:

The child has been removed from the custody of his or her parent or parents as a result of a judicial determination to the effect that continuation in the custody of the parent or parents would be contrary to the welfare of the child.
Being returned home or being adopted is not an appropriate permanency option for the child.
Permanent placement with a guardian is in the best interests of the child.
The child demonstrates a strong attachment to the prospective guardian, and the guardian has a strong commitment to caring permanently for the child.
With respect to a child who has reached age 14, the child has been consulted regarding the guardianship.
The necessary degree of relationship exists between the prospective guardian and the child.
The home of the prospective guardian complies with any applicable rules for foster home approval.
The child has resided in the home of the prospective relative guardian for at least 6 consecutive months after the prospective guardian's home was opened as a foster home.

A home study is a written report that presents the findings of the investigation of a home by the department. An instate home study, excluding the results of a criminal records check, shall be completed and presented to the requesting court within 30 days of the receipt of the request for the home study. The results of the criminal records check shall be provided to the court as soon as they are received. The department may obtain a criminal background check on any person in the household age 16 and older, including a fingerprint-based check of national crime information databases.

Procedures for Establishing Guardianship

Citation: Ann. Code § 9-28-108; Admin. Code 016 00 CARR 011, Policy VI-B & VIII-L

If a relative or other person inquires about the placement of a child in his or her home, the department shall discuss with the relative or other person about becoming a department foster home or obtaining legal custody of the child. The court may grant custody of the child to the relative or fictive kin after an approved written home study is presented to the court.

In regulation: If the relative or fictive kin chooses to obtain legal custody of the juvenile, a protective services case must be opened on the child and a case plan developed to establish permanency for the child. The department must provide services similar to the services that would have been provided if the child was placed in foster care, and the case plan must address these services.

If it is determined at the permanency-planning hearing that a guardianship arrangement with relatives is in the child's best interests, the child's permanency goal is changed to legal guardianship. When it is in the best interests of each of the children, the department shall attempt to place siblings together in the same guardianship arrangement. Siblings may be related by biological, marital, or legal ties.

Contents of a Guardianship Order

This issue is not addressed in the statutes and regulations reviewed.

Modification/Revocation of Guardianship

This issue is not addressed in the statutes and regulations reviewed.

Kinship Guardianship Assistance

Citation: Ann. Code § 9-8-204

A child is eligible for a guardianship subsidy if the Department of Human Services determines the following:

The child has been removed from the custody of his or her parent(s) as a result of a judicial determination to the effect that continuation in the custody of the parent(s) would be contrary to the welfare of the child.
The department is responsible for the placement and care of the child.
Being returned home or being adopted is not an appropriate permanency option for the child.
Permanent placement with a guardian is in the best interests of the child.
The child demonstrates a strong attachment to the prospective guardian, and the guardian has a strong commitment to caring permanently for the child.
With respect to a child who has reached age 14, the child has been consulted regarding the guardianship.
The necessary degree of relationship exists between the prospective guardian and the child.
The child is eligible for title IV-E foster care maintenance payments, or the department determines that adequate funding is available for the guardianship subsidy for a child who is not title IV-E eligible.
The home of the prospective guardian complies with any applicable rules for foster home approval.
While in the custody of the department, the child resided in the home of the prospective relative guardian for at least 6 consecutive months after the prospective guardian's home was opened as a foster home.

Links to Agency Policies

A Relative's Guide to the Arkansas Child Welfare System (PDF - 912 KB)

Related Resources

Kinship Guardianship as a Permanency Option PDF