Kinship Guardianship as a Permanency Option - Colorado

Definitions

Citation: Rev. Stat. § 19-1-103; Code of Regs. 12 CCR 2509-4, 7.304.11.1

A 'custodian' is a person who has been providing shelter, food, clothing, and other care for a child in the same fashion as a parent would, whether or not by order of court. The term 'physical custodian' means a guardian, whether or not appointed by court order, with whom the juvenile has resided.

The term 'kin' may refer to a relative of the child, a person ascribed by the family as having a familylike relationship with the child, or a person that has a prior significant relationship with the child. These relationships take into account cultural values and continuity of significant relationships with the child.

In regulation: For the purpose of the Relative Guardianship Assistance Program, a relative is defined as follows:

• An adult who is related to the youth or child in the fifth degree of kinship
• An adult who is related to the youth or child through marriage or adoption
• A person ascribed by the family as having a familylike relationship
• An individual that had a prior significant relationship with the youth or child

Purpose of Guardianship

Citation: Rev. Stat. § 26-5-110

The general assembly declares the following:

• Children and youth in the child welfare system are better served when family ties are preserved and strengthened because permanent family connections are critical to a child's overall well-being and development.
• The general assembly has established through past legislation a statutory preference for placement with relatives and kin at all stages of a child welfare case.
• To help support permanency with family and kin relationships when adoption and reunification are either unavailable or not appropriate permanency options for the child, the general assembly created the 'Relative Guardianship Assistance Program' in 2010.
• The State of Colorado has a strong interest in providing permanency options to children who are part of the traditional foster care system and who are not otherwise able to be placed with relatives or kin.
• It is appropriate to further the goal of permanency by passing legislation to provide financial assistance for the care of children, when it is in accordance with Federal law, to relatives, kin, and foster parents who have a significant relationship with the child and who have assumed legal guardianship of children who they previously cared for as certified foster parents.
• It is therefore the intent of the general assembly that the State guardianship assistance program will be utilized to enhance family preservation and provide a permanency option for children who have developed a significant relationship with their foster parent caregiver when reunification and adoption are either unavailable or not appropriate permanency options for the child, and provide stability in safe and stable placements with relatives, kin, and foster parent caregivers.

A Guardian's Rights and Responsibilities

Citation: Rev. Stat. § 19-1-103(60), (73)

The term 'guardianship of the person' means the duty and authority vested by court action to make major decisions affecting a child, including, but not limited to the following:

• The authority to consent to marriage, to enlistment in the armed forces, and to medical or surgical treatment
• The authority to represent a child in legal actions and to make other decisions of substantial legal significance concerning the child
• The authority to consent to the adoption of a child when the parent-child legal relationship has been terminated by judicial decree
• The rights and responsibilities of legal custody when legal custody has not been vested in another person, agency, or institution

'Legal custody' is the right to the care, custody, and control of a child and the duty to provide food, clothing, shelter, ordinary medical care, education, and discipline for a child and, in an emergency, to authorize surgery or other extraordinary care. 'Legal custody may be taken from a parent only by court action.

For purposes of determining the residence of a child as provided in § 22-1-102 (2)(b), guardianship shall be in the person to whom legal custody has been granted by the court.

Qualifying the Guardian

Citation: Rev. Stat. § 19-3-605

In making placement determinations, the court shall consider all pertinent information related to modifying the placement of the child, including the following:

• An individualized assessment of the child's needs
• Whether the child's placement is a safe and potentially permanent placement for the child, including documentation that the department has adequately screened the family member who is seeking to care for the child and any adult residing in the home and that all required criminal history record checks and other background checks have been completed
• The child's age, developmental stage, and attachment needs
• Whether the child has significant psychological ties to a person who could provide a permanent placement for the child, including a relative, and, if so, whether this person maintained contact with the child during the child's placement out of the home
• Whether a person who could provide a permanent placement for the child is willing to maintain appropriate contact after an adoption of the child with the child's relatives, particularly siblings, when such contact is safe, reasonable, and appropriate
• Whether a person who could provide a permanent placement for the child is aware of the child's culture and is willing to provide the child with positive ties to his or her culture
• The child's medical, physical, emotional, or other specific needs and whether a person who could provide a permanent placement for the child is able to meet the child's needs
• The child's attachment to the child's caregiver at the time of the hearing and the possible effects on the child's emotional well-being if the child is removed from the caregiver's home

Procedures for Establishing Guardianship

Citation: Rev. Stat. §§ 19-3-605; 19-5-104

Following an order of termination of parental rights, the court shall consider, but shall not be bound by, a request that guardianship and legal custody of the child be placed with a relative of the child. When ordering guardianship of the child, the court may give preference to a grandparent, aunt, uncle, brother, sister, half-sibling, or first cousin of the child when such relative has made a timely request and the court determines that such placement is in the best interests of the child.

If the court terminates the parent-child legal relationship of both parents or of the only living parent, the court, after taking into account the religious background of the child, shall order guardianship of the person and legal custody transferred to any of the following:

• The county Department of Social Services
• A licensed child-placing agency
• A relative of the child
• An individual determined to be of good moral character through a process that includes the assessment made pursuant to § 19-5-206(2)(g), if such individual has had the child living in his or her home for 6 months or more, including a foster parent or a designated adoptive parent

The court shall consider, but shall not be bound by, a request that custody of the child, with the option of applying for adoption, be placed in a grandparent, aunt, uncle, brother, or sister of the child or a foster parent. When ordering legal custody of the child, the court shall give preference to a grandparent, aunt, uncle, brother, or sister of the child when that relative has made a timely request for custody of the child and the court determines that such placement is in the best interests of the child.

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: Rev. Stat. § 26-5-110

Assistance from the guardianship assistance program is available when a court has determined that adoption and reunification with the child's parent are not appropriate permanency options for the child. Program assistance is available in the following situations:

• To relatives, kin, and persons ascribed by the family as having a familylike relationship with the child or children and who:
  • Are committed to the child's or children's permanency
  • Were the certified foster parent of the child for a minimum of 6 consecutive months at the time they assumed guardianship
  • Have assumed legal guardianship for the child
• To a certified foster parent who does not otherwise qualify for the program pursuant to the paragraph above if:
  • The child in the certified foster parent's care is age 12 or older, or if at least one of the children in the sibling group is age 11 or younger and has an older sibling who receives assistance from the program.
  • The court finds that:
    • The child has a substantial psychological tie to the foster parent, such that it would be seriously detrimental to the child's emotional well-being to remove the child or children from the parent's care.
    • Adoption and reunification are not appropriate permanency options for the child, the child's foster parent is unable to adopt the child because of exceptional circumstances, but he or she is willing and capable of providing the child with a stable and permanent environment.
  • The certified foster parent of the child has cared for the child for a minimum of 12 months.
  • The certified foster parent has assumed legal guardianship of the child with the consent of a child who is age 12 or older.

Links to Agency Policies

Colorado Code of Regulations, Kinship Care, Social Services Rules, 12 CCR 2509-4 (PDF - 1,018 KB)

Colorado Department of Human Services, Kinship Connection