Kinship Guardianship as a Permanency Option - California
Citation: Wel. & Inst. Code §§ 361.5(g); 11391(c)
The term 'relative' means an adult who is related to the minor by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words 'great,' 'great-great,' or 'grand,' or the spouse of any of those persons even if the marriage was terminated by death or dissolution. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, 'relative' as used in this section has the same meaning as 'relative' as defined in § 11391(c).
In § 11391(c), the term 'relative,' subject to Federal approval of amendments to the State plan, means any of the following:
- An adult who is related to the child, as defined above
- An adult who meets the definition of an approved, nonrelated, extended family member, as described in § 362.7
- An adult who is either a member of the Indian child's Tribe or an Indian custodian, as defined in § 1903(6) of Title 25 of the United States Code
- An adult who is the current foster parent of a child and who has established a significant and familylike relationship with the child, and the child and the county child welfare agency, probation department, Indian Tribe, consortium of Tribes, or Tribal organization identify this adult as the child's permanent connection
Purpose of Guardianship
Citation: Wel. & Inst. Code § 366.26
The court shall not terminate parental rights if:
- The child is living with a relative who is unable or unwilling to adopt the child for reasons that do not include an unwillingness to accept legal or financial responsibility for the child but otherwise is willing and capable of providing the child with a stable and permanent home, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child.
- The court determines that termination would be detrimental to the child due to one or more of the following:
- The parents have maintained regular visitation and contact with the child, and the child would benefit from continuing the relationship.
- A child 12 years of age or older objects.
- The child is in a residential treatment facility, adoption is unlikely, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.
- The child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child but who is willing and capable of providing the child with a stable and permanent home.
- There would be substantial interference with a child's sibling relationship, and ongoing contact is in the child's best interests, including the child's long-term emotional interest, as compared with the benefit of legal permanence through adoption.
- The child is an Indian child and there is a compelling reason for not terminating parental rights, including:
- Terminating parental rights would substantially interfere with the child's connection to his or her Tribal community or the child's Tribal membership rights.
- The child's Tribe has identified guardianship, long-term foster care with a fit and willing relative, Tribal customary adoption, or another planned permanent living arrangement for the child.
A Guardian's Rights and Responsibilities
Citation: Wel. & Inst. Code § 361.3
The relative must be able to do the following:
- Provide a safe, secure, and stable environment for the child
- Exercise proper and effective care and control of the child
- Provide a home and the necessities of life for the child
- Protect the child from his or her parents
- Facilitate court-ordered reunification efforts with the parents
- Facilitate visitation with the child's other relatives
- Facilitate implementation of all elements of the case plan
- Provide legal permanence for the child if reunification fails
- Arrange for appropriate and safe child care, as necessary
Qualifying the Guardian
Citation: Wel. & Inst. Code § 361.5(g)
The State Department of Social Services shall prepare an assessment that shall include the following:
- A review of the amount of and nature of any contact between the child and his or her parents and other members of his or her extended family since the time of placement
- An evaluation of the child's medical, developmental, scholastic, mental, and emotional status
- A preliminary assessment of the eligibility and commitment of any identified prospective guardian, including a social history screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child's needs, and the understanding of the legal and financial rights and responsibilities of guardianship
- The relationship of the child to any identified prospective guardian, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian, the relative's strong commitment to caring permanently for the child, and the motivation for seeking guardianship
- A statement from the child concerning placement and the guardianship
- Whether the child over age 12 has been consulted about the proposed relative guardianship arrangements, unless the child's age or physical, emotional, or other condition precludes his or her meaningful response
For the purpose of this paragraph, the term 'extended family' includes, but is not limited to, the child's siblings, grandparents, aunts, and uncles.
Procedures for Establishing Guardianship
Citation: Wel. & Inst. Code §§ 360; 366.26
If the court finds that the child is a dependent child under § 300 and the parent has advised the court that the parent is not interested in family maintenance or family reunification services, it may, in addition to or in lieu of adjudicating the child a dependent child of the court, order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interests of the child. The parent and the child must agree to the guardianship, unless the child's age or physical, emotional, or mental condition prevents the child's meaningful response. The court shall advise the parent and the child that no reunification services will be provided as a result of the establishment of a guardianship. The proceeding for the appointment of a guardian shall be in the juvenile court.
No person shall be appointed a legal guardian under this section until an assessment as specified in § 361.5(g) is read and considered by the court and reflected in the minutes of the court.
The proceeding for the appointment of a guardian for a child who is a dependent of the juvenile court shall be in the juvenile court. If the court finds that legal guardianship is the appropriate permanent plan, it shall appoint the legal guardian and issue letters of guardianship. The assessment prepared pursuant to §§ 361.5(g), 366.21(i), 366.22(b), and 366.25(b) shall be read and considered by the court prior to the appointment, and this shall be reflected in the minutes of the court. The person preparing the assessment may be called and examined by any party to the proceeding.
At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.
Contents of a Guardianship Order
Citation: Wel. & Inst. Code § 366.3
Following establishment of a legal guardianship, the court may continue jurisdiction over the child as a dependent child of the juvenile court or may terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the legal guardianship, as authorized by § 366.4. If, however, a relative of the child is appointed the legal guardian of the child and the child has been placed with the relative for at least 6 months, the court shall, except if the relative guardian objects, or upon a finding of exceptional circumstances, terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship.
Modification/Revocation of Guardianship
Citation: Wel. & Inst. Code § 366.3
If a guardianship is revoked, the department shall notify the juvenile court of this fact. Proceedings to terminate a legal guardianship shall be held either in the juvenile court that retains jurisdiction over the guardianship or the court in the county where the guardian and child currently reside, based on the best interests of the child, unless the termination is due to the emancipation or adoption of the child. Prior to the hearing on a petition to terminate legal guardianship, the court shall order the department to prepare a report that shall include an evaluation of whether the child could safely remain in, or be returned to, the legal guardian's home, without terminating the legal guardianship, if services were provided to the child or legal guardian.
If the petition to terminate legal guardianship is granted, the court may resume dependency jurisdiction over the child and may order the department to develop a new permanency plan.
Unless the parental rights of the child's parents have been terminated, they shall be notified that the guardianship has been terminated and shall be entitled to participate in the new permanency-planning hearing. At the hearing, the parents may be considered as custodians, but the child shall not be returned to the parents unless they prove, by a preponderance of the evidence, that reunification is the best alternative for the child. The court may, if it is in the best interests of the child, order that reunification services again be provided to the parents.
If, following the establishment of a legal guardianship, the department becomes aware of changed circumstances that indicate adoption may be an appropriate plan for the child, the department shall so notify the court. The court may vacate its previous order dismissing dependency jurisdiction and order that a hearing be held to determine whether adoption or continued legal guardianship is the most appropriate plan for the child.
Kinship Guardianship Assistance
Citation: Wel. & Inst. Code §§ 360; 11386
If the court appoints an approved relative caregiver as the child's legal guardian, the child has been in the care of that approved relative for a period of 6 consecutive months under a voluntary placement agreement, and the child otherwise meets the conditions for Federal financial participation, the child shall be eligible for aid under the Kin-GAP Program. The non-federally eligible child placed with an approved relative caregiver who is appointed as the child's legal guardian shall be eligible for aid under the State-funded Kin-GAP Program.
Aid shall be provided on behalf of a child under age 18 under all of the following conditions:
- The child satisfies both of the following requirements:
- He or she has been removed from his or her home pursuant to a voluntary placement agreement or as a result of judicial determination, including being adjudged a dependent child of the court, to the effect that continuation in the home would be contrary to the welfare of the child.
- He or she has been eligible for Federal foster care maintenance payments while residing in the approved home of the prospective relative guardian for at least 6 consecutive months.
- Being returned to the parental home or being adopted are not appropriate permanency options for the child.
- The child demonstrates a strong attachment to the relative guardian, and the relative guardian has a strong commitment to caring permanently for the child and, with respect to the child who is age 12 or older, the child has been consulted regarding the kinship guardianship arrangement.
- The child has had a kinship guardianship established pursuant to § 360 or 366.26.
- The child has had his or her dependency jurisdiction terminated concurrently or subsequently to the establishment of the kinship guardianship.
Links to Agency Policies
Child Welfare Services Manual, Div. 31, Chap. 31-100 through 31-200 (PDF - 400 KB)