Kinship Guardianship as a Permanency Option - Hawaii

Date: July 2018

Definitions

Citation: Ann. Stat. § 587A-4; Code of Rules § 17-1621-3.

The term 'hanai relative' means an adult, other than a blood relative, whom the court or Department of Human Services has found by credible evidence to perform or to have performed a substantial role in the upbringing or material support of a child, as attested to by the written or oral designation of the child or of another person, including other relatives of the child.

The term 'relative' means a person related to a child by blood or adoption, or a hanai relative as defined in this chapter, who, as determined by the court or the department, is willing and able to safely provide support to the child and the child's family.

In regulation: The term 'caregiver' means the child's legal guardian(s) or permanent custodian(s).

The term 'legal guardian' means any adult who has been awarded legal guardianship of a child as the result of a judicial determination made at the time the department had placement responsibility of the child.

Purpose of Guardianship

Citation: Code of Rules § 17-1621-9

A caregiver may be awarded legal guardianship of a child for whom the department has placement responsibility when:

  • A court has determined that the child cannot be reunified with the legal parents.
  • The department has determined that adoption is not a viable goal for the child due to factors that may include, but are not limited to, the child's desire not to be adopted and/or the existence of significant ties to the current caregiver(s) who are unable or unwilling to adopt the child.

A Guardian's Rights and Responsibilities

Citation: Ann. Stat. § 560:5-207; Code of Rules § 17-1621-10

Except as otherwise limited by the court, a guardian of a minor ward has the duties and responsibilities of a parent regarding the ward's support, care, education, health, and welfare. A guardian shall act at all times in the ward's best interests and exercise reasonable care, diligence, and prudence.

In regulation: The legal guardianship shall be a judicially created relationship between the child and relative that is intended to be permanent and self-sustaining, as evidenced by the transfer to the legal guardian of the following parental rights with respect to the child:

  • Protection
  • Education
  • Care and control of the person
  • Custody of the person
  • Decision-making

Qualifying the Guardian

Citation: Code of Rules § 17-1621-11

The Department of Human Services shall conduct criminal history record checks, child abuse and neglect registry checks, background checks, and any other checks of the prospective legal guardians and other adult household members that are deemed necessary. For each person, this background study shall include the following:

  • Fingerprint-based clearances completed by the Federal Bureau of Investigation in accordance with Federal and State statutes and departmental procedures
  • Checks of the State's child abuse and neglect registry for all adult household members, including the registries in States where an adult resided within the preceding 5 years

The prospective legal guardians and other adult household members shall not have any of the following:

  • A felony conviction, at any time, for child abuse or neglect; spousal abuse; a crime against children (including child pornography); or a serious crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery
  • A felony conviction, within the last 5 years, for physical assault, battery, or a drug-related offense
  • Convictions of any other crimes that indicate that the person poses a risk to the health, safety, or well-being of children
  • An employment history indicating violence, alcohol or drug abuse, and any other violation of employer rule or policy that indicate that the person may pose a risk to the health, safety, or well-being of children

Background information that shows that the person has been confirmed to have committed child abuse or neglect or whose parental rights were terminated may be a basis for denial, unless the department determines that the person has established clear and convincing evidence of rehabilitation and does not pose a risk to the health, safety, or well-being of a child or children in the home.

Procedures for Establishing Guardianship

Citation: Ann. Stat. §§ 560:5-201; 560:5-204; 560:5-206

A person becomes a guardian of a minor by parental appointment or upon appointment by the court.

A minor or a person interested in the welfare of a minor may petition for appointment of a guardian. The court may appoint a guardian for a minor if the court finds the appointment is in the minor's best interests, the parents consent to the guardianship, all parental rights have been terminated, or the parents are unwilling or unable to exercise their parental rights.

The court shall appoint as guardian a person whose appointment will be in the best interests of the minor. The court shall appoint a person nominated by the minor, if the minor has reached age 14, unless the court finds the appointment will be contrary to the best interests of the minor.

Contents of a Guardianship Order

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

Modification/Revocation of Guardianship

Citation: Ann. Stat. § 560:5-201

The guardianship continues until terminated, without regard to the location of the guardian or minor ward.

Kinship Guardianship Assistance

Citation: Code of Rules §§ 17-1621-8; 17-1621-9

Federal title IV-E kinship guardianship assistance provides payments to relatives who assume legal guardianship of children for whom they have cared while foster parents. For a guardian to receive assistance, the following provisions apply:

  • The child must have been removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child.
  • The child must have been eligible for title IV-E foster care maintenance payments during a period of at least 6 consecutive months during which the child resided in the home of the prospective relative guardian who was unconditionally licensed as a foster family home.
  • The department must determine that:
    • Return home and adoption have been ruled out as appropriate permanency options.
    • The child demonstrates a strong attachment to the prospective relative guardian.
    • The relative guardian has a strong commitment to caring permanently for the child.
  • The department must consult with a child who is age 14 or older regarding the kinship guardianship arrangement.

The eligible child and any sibling of the child may be placed in the same kinship guardianship arrangement if the department and the relative agree on the appropriateness of the arrangement for the siblings. Kinship guardianship assistance payments shall be paid on behalf of each sibling so placed, even if the sibling does not meet the eligibility criteria.

A guardian for a child who does not meet the criteria for title IV-E assistance may apply for State-funded permanency assistance.

Links to Agency Policies

Hawaii Administrative Rules, Chapter 17-1621, Permanency Assistance (PDF - 550 KB)

Hawaii Department of Human Services, Comparison of Permanency Options (PDF - 66 KB)

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