Kinship Guardianship as a Permanency Option - Indiana

Date: July 2018


Citation: Ann. Code § 29-3-1-6

The term 'guardian' means a person who is a fiduciary and is appointed by a court to be a guardian or conservator responsible as the court may direct for the person or the property of a minor. The term includes a temporary guardian, a limited guardian, and a successor guardian but excludes one who is only a guardian ad litem. The terms 'guardian' and 'conservator' are interchangeable.

Purpose of Guardianship

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

A Guardian's Rights and Responsibilities

Citation: Ann. Code §§ 31-34-21-7.5; 29-3-8-2

The legal guardian appointed under this section is a caregiver in a judicially created relationship between the child and caregiver that is intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver of the following parental rights with respect to the child:

  • Care, custody, and control of the child
  • Decision-making concerning the child's upbringing

The guardian of a child may exercise all of the powers required to perform the guardian's responsibilities, including the following:

  • The power to take custody of the child and establish the child's place of abode within or without Indiana
  • The power to consent to medical or other professional care and treatment for the child's health and welfare
  • The power to consent to the marriage or adoption of the child

Qualifying the Guardian

Citation: Ann. Code §§ 29-3-5-1.5; 31-34-21-7.5; Admin. Code Tit. 465, § 2-8-3

A petitioner for appointment as a guardian of a minor shall submit the necessary information, forms, or consents for the Department of Child Services to conduct a criminal history check of the petitioner and any other household members before the court appoints the guardian.

The juvenile court may not approve a placement with a legal guardian if a person who is currently residing with the proposed legal guardian has committed an act resulting in a substantiated report of child abuse or neglect, has a juvenile adjudication for an act that would be a felony listed in § 31-27-4-13 if committed by an adult, or has a conviction for a felony listed in that section.

In regulation: The guardian must meet each of the following criteria, as shown by a home study and an evaluation of the guardian:

  • Have the ability to provide for the child's physical, mental, emotional, educational, and psychological needs, upon termination of supervision of the child by the department, except for provision of assistance
  • Have the ability, willingness, and motivation to access and obtain appropriate services outside the home that are necessary or appropriate for the health, education, development, and well-being of the child and that will assist the child in becoming a self-supporting adult to the maximum extent feasible
  • Have established a nurturing, stable relationship with the child in which the child indicates a desire to continue a family relationship and residence with the guardian in the guardian's household
  • Have demonstrated the ability to determine and regulate an appropriate level of relationship and ongoing contacts with any parent or other close relative of the child, consistent with the safety and best interests of the child, and in conformance with any plan of visitation ordered or approved by the court

Procedures for Establishing Guardianship

Citation: Ann. Code §§ 29-3-5-1; 29-3-6-1

Any person may file a petition for the appointment of a person to serve as guardian for a child under this chapter. After the filing of a petition, the court shall set a date for a hearing on the issues raised by the petition. A court shall notify the department of a hearing regarding the guardianship of a child under this section, if a child in need of services petition has been filed regarding the child. The department may participate in a hearing regarding the guardianship of a child described in this subsection.

If the subject of the petition is a child, notice of the petition and the hearing on the petition shall be given to the following persons whose whereabouts can be determined upon reasonable inquiry:

  • The child if he or she is at least age 14, unless the child has signed the petition
  • Any living parent of the child, unless parental rights have been terminated by a court order
  • Any person alleged to have had the principal care and custody of the child during the 60 days preceding the filing of the petition
  • Any other person that the court directs

Contents of a Guardianship Order

Citation: Ann. Code § 29-3-8-9

The court may include in its order creating a guardianship of a child the following:

  • A requirement that the child must reside with the guardian until the guardianship is terminated or modified
  • Any terms and conditions that a parent must meet in order to seek modification or termination of the guardianship

Modification/Revocation of Guardianship

Citation: Ann. Code § 29-3-8-9

The court may modify or terminate the guardianship only if the parent complies with the terms and conditions and proves the parent's current fitness to assume all parental obligations by a preponderance of the evidence.

If a petition is filed for modification, resignation, removal of the guardian, or termination of the guardianship before the parent complies with the court-ordered terms and conditions described above, and the child was the subject of a petition alleging the child to be a child in need of services, the court shall refer the petition to the Department of Child Services for the department to determine the placement of the child in accordance with the best interests of the child.

A court shall notify the department:

  • If the court appoints a guardian for a child who was the subject of a petition alleging the child to be a child in need of services, and if a petition to modify or terminate the guardianship of the child or a petition regarding the death, resignation, or removal of the guardian is filed
  • Of any hearings related to the petitions

If a child was the subject of a petition alleging the child to be a child in need of services, the court shall do the following at a hearing regarding a petition filed under this section:

  • Consider the position of the department
  • If requested by the department, allow the department to present evidence regarding the following:
    • Whether the guardianship should be modified or terminated
    • The fitness of the parent to provide for the care and supervision of the child at the time of the hearing
    • The appropriate care and placement of the child
    • The best interests of the child

Kinship Guardianship Assistance

Citation: Admin. Code Tit. 465, §§ 2-8-2; 2-8-3; 4-2-19

A child who meets all the following criteria shall be eligible for assistance:

  • The child is at least age 13, a member of a sibling group in which at least one of whom is at least age 13, seriously disabled, or approved for legal guardianship as a permanency plan by order of a court.
  • The child must be residing in the household of an adult relative caregiver.
  • The gross family income attributable to the child must be less than 250 percent of the Federal poverty level.
  • The child must have been adjudicated as a child in need of services by a juvenile court.
  • The child must have been removed from the child's home and placed in another home, under supervision of a county office, pursuant to a dispositional decree.
  • The child must be residing with a guardian who meets the eligibility requirements specified below.
  • The child must have resided with the guardian for a continuous period of at least 6 months.
  • The permanency plan for the child is appointment of a legal guardian for the child.

A guardian who meets all the following criteria shall be eligible to receive assistance on behalf of a child who is eligible for assistance:

  • The guardian must be a relative of the child.
  • The guardian must reside in a home that meets all requirements for licensing as a foster family home.
  • The child must have resided in the guardian's home for a continuous period of at least 6 months.
  • The guardian must be primarily responsible for providing for appropriate care, support, maintenance, education, and welfare of the child.

Guardianship assistance may include any of the following:

  • Title IV-E or State guardianship assistance
  • Health insurance, including either Medicaid or the children's health insurance program
  • Reimbursement for nonrecurring guardianship expenses, including guardianship fees, court costs, attorney fees, and other expenses directly related to the creation of the guardianship

Links to Agency Policies

Indiana Department of Child Services, Child Welfare Policies, Chapter 14, Guardianship Assistance Program