Kinship Guardianship as a Permanency Option - District of Columbia

Date: July 2018

Definitions

Citation: Ann. Code §§ 16-2382; 16-2301

The term 'guardianship order' means the court document that establishes the permanent guardianship and enumerates the permanent guardian's rights and responsibilities concerning the care, custody, and control of the child. The term 'permanent guardian' means an individual or individuals designated by the court pursuant to this subchapter.

The term 'guardianship of the person of a minor' means the duty and authority to make important decisions in matters having a permanent effect on the life and development of the minor and concern with his or her general welfare. The term includes, but is not limited to the following:

The authority to consent to marriage, enlistment in the armed forces of the United States, and major medical, surgical, or psychiatric treatment; to represent the minor in legal actions; and to make other decisions concerning the minor of substantive legal significance
The authority and duty of reasonable visitation (except as limited by court order)
The rights and responsibilities of legal custody when guardianship of the person is exercised by the natural or adoptive parent (except where legal custody has been vested in another person or an agency or institution)
The authority to exercise residual parental rights and responsibilities when the rights of the child's parents or only living parent have been judicially terminated or when both parents are dead

Purpose of Guardianship

Citation: Ann. Code § 16-2381

The general purpose of this subchapter is to:

Encourage stability in the lives of certain children who have been adjudicated to be neglected and have been removed from the custody of their parent, by providing judicial procedures for the creation of a permanent guardianship in the circumstances set forth in this subchapter
Ensure that the constitutional rights of all parties are recognized and enforced in all proceedings conducted pursuant to this subchapter while ensuring that the fundamental needs of children are not subjugated to the interests of others
Increase the opportunities for the prompt permanent placement of children, especially with relatives, without ongoing government supervision

A Guardian's Rights and Responsibilities

Citation: Ann. Code § 16-2389

Unless the court specifies otherwise, the permanent guardian shall maintain physical custody of the child and shall have the following rights and responsibilities concerning the child:

Protect, nurture, discipline, and educate the child
Provide food, clothing, shelter, education as required by law, and routine health care for the child
Consent to health care without liability by reason of the consent for injury to the child resulting from the negligence or acts of third persons unless a parent would have been liable in the circumstances
Authorize a release of health-care and educational information
Authorize a release of information when consent of a parent is required by law, regulation, or policy
Consent to social and school activities of the child
Consent to military enlistment
Obtain representation for the child in legal actions
Determine the nature and extent of the child's contact with other persons

The permanent guardian is not liable to third persons by reason of the guardianship relationship for acts of the child.

Qualifying the Guardian

Citation: Ann. Code § 16-2383

A guardianship order may not be entered unless the child has been adjudicated to be neglected and has been living with the proposed permanent guardian for at least 6 months. If the child is age 14 or older, the court shall designate the permanent guardian selected by the child unless the court finds that the designation is contrary to the child's best interests.

The court may issue a guardianship order only if the court finds that:

The permanent guardianship is in the child's best interests.
Adoption, termination of parental rights, or return to the parent is not appropriate for the child.
The proposed permanent guardian is suitable and able to provide a safe and permanent home for the child.

In determining whether it is in the child's best interests that a permanent guardian be designated, the court shall consider each of the following factors:

The child's need for continuity of care and caregivers, and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages
The physical, mental, and emotional health of all individuals involved to the degree that each affects the welfare of the child, the decisive consideration being the physical, mental, and emotional needs of the child
The quality of the interaction and interrelationship of the child with his or her parent, siblings, relatives, and caregivers, including the proposed permanent guardian
To the extent feasible, the child's opinion of his or her own best interests in the matter

Evidence that drug-related activity continues to exist in a child's home environment after intervention and services have been provided shall be given great weight.

Procedures for Establishing Guardianship

Citation: Ann. Code §§ 16-2384; 16-2388

A motion for a permanent guardianship may be filed any time after a neglect petition is filed. The motion shall include the following:

The name, sex, date and place of birth, and current placement of the child
The proposed permanent guardian's name and relationship to the child
The name and address of the child's parents
A plain and concise statement of the facts and opinions on which the permanent guardianship is sought
A description of the child's mental and physical health
A statement why permanent guardianship, rather than adoption, termination of parental rights, or return to the parent, is in the child's best interests
A statement as to the various efforts taken by the moving party to locate the parent of the child
An itemization of the child's assets
The name of proposed successor guardians, if any, and his or her relationship to the child and proposed permanent guardian
Written consents, if any, to the permanent guardianship

The court shall begin the adjudicatory hearing by determining whether all parties are present and whether proper notice of the hearing has been given. If a parent has been given proper notice but fails to appear, the court may proceed in the parent's absence. All evidence that is relevant and material to the issues before the court shall be admitted.

The court may enter, modify, or terminate a guardianship order after considering all of the evidence presented, including the mayor's report and recommendation, and after making a determination based upon a preponderance of the evidence that creation, modification, or termination of the guardianship order is in the child's best interests. If the court does not find that sufficient grounds exist to create, modify, or terminate a guardianship order, the motion may be dismissed.

Contents of a Guardianship Order

Citation: Ann. Code §§ 16-2389; 16-2390; 16-2392

Entry of a guardianship order does not terminate the parent and child relationship, including:

The right of the child to inherit from his or her parents
The parents' right to visit or contact the child (except as limited by the court)
The parents' right to consent to the child's adoption
The parents' right to determine the child's religious affiliation
The parents' responsibility to provide financial, medical, and other support for the child

The guardianship order may specify the frequency and nature of visitation or contact between relatives and the child. The court may determine whether the visitation or contact is in the child's best interests.

The court shall make a permanency determination and close the neglect case upon motion by any party to the permanent guardianship proceeding if the court finds that such a determination is in the child's best interests.

The court shall have jurisdiction to enter a guardianship order and shall retain jurisdiction to enforce, modify, or terminate a guardianship order until a child reaches age 21, provided that when the child reaches age 18, the child consents and the court finds it is in the best interests of the child. A child who exits foster care to guardianship may not reenter foster care after age 18.

Every guardianship order shall be in writing and shall recite the findings upon which such order is based, including findings pertaining to the court's jurisdiction. Except as otherwise expressly provided by law, in all hearings and cases tried before the court pursuant to this subchapter, the judgment of the court shall be final.

Modification/Revocation of Guardianship

Citation: Ann. Code §§ 16-2395; 16-2398

A guardianship order may be modified or terminated if the court finds that there has been a substantial and material change in the child's circumstances since the entry of the guardianship order and that it is in the child's best interests to modify or terminate the guardianship order.

The court shall hold a hearing before modifying or terminating a guardianship order and shall, at the end of the hearing, enter a written order reciting the findings upon which the order is based.

Upon terminating the guardianship, the permanent guardian shall no longer be entitled to physical custody of the child, have any other parental rights and responsibilities concerning the child, or have party status in any further court proceedings.

An order for permanent guardianship may designate a successor guardian. The successor guardian shall immediately obtain physical custody of the child and assume the permanent guardian's rights and responsibilities concerning the child upon the permanent guardian's death or physical or mental infirmity.

The successor guardian shall file a motion with the court for modification of the original guardianship order within 30 days of obtaining physical custody of the child. Unless otherwise ordered by the court, the successor guardian shall assume the permanent guardian's rights and responsibilities concerning the child until the hearing is held.

Before issuing a final order transferring the permanent guardian's rights and responsibilities to the successor guardian, the court shall find that:

The successor guardian was duly designated by the permanent guardian.
The permanent guardian is deceased or is physically or mentally infirm.
The transfer of guardianship is in the child's best interests.
Adoption, termination of parental rights, or return to the parent is not appropriate for the child.
The successor guardian is suitable and able to provide a safe and permanent home for the child.

Kinship Guardianship Assistance

Citation: Ann. Code § 16-2399

To the extent that funds are available, the mayor may make subsidy payments to a permanent guardian, irrespective of the permanent guardian's State of residence, as needed on behalf of a child with special needs when the permanent guardian has the capability of providing the permanent family relationships needed by the child in all areas except financial. For the purposes of this section a 'child with special needs' includes any child who is difficult to place in adoption because of age, race, ethnic background, physical or mental condition, or membership in a sibling group that should be placed together, or a child who, in all likelihood, would go without another permanent placement arrangement except for the acceptance of the child as a member of the permanent guardian's family.

For a permanent guardian to be eligible for subsidy payments:

The child must be adjudicated neglected pursuant to § 16-2317.
The child must be committed to the legal custody of the Child and Family Services Agency.
A subsidy payment agreement must be entered into by the agency and the permanent guardian.

Subsidy payments may be paid, subject to the availability of appropriated funds, on a long-term basis to help a permanent guardian whose income is limited and likely to remain so, or on a time-limited basis to help a permanent guardian meet the cost of integrating a child into the family over a specified period of time.

Eligibility for subsidy payments may continue during the period of the guardianship order until the child reaches age 18. For guardianships that are finalized on or after May 7, 2010, eligibility for subsidy payments shall continue during the period of the guardianship order until the child reaches age 21.

Permanent guardianship subsidies shall be subject to the availability of appropriations. Nothing in this section shall be construed to create an entitlement to a permanent guardianship subsidy for any person.

Links to Agency Policies

Municipal Regulations, Title 29, Chapter 61, Permanent Guardianship Subsidies for Kinship Caregivers

Child and Family Services Agency, Case Planning When the Permanency Goal Is Permanent Guardianship (PDF - 204 KB)

Related Resources

Kinship Guardianship as a Permanency Option PDF