Kinship Guardianship as a Permanency Option - Louisiana
Citation: Ch. Code Art. 116
The term 'guardianship' means the judicial placement of a child under the care of a person who will have the duty and authority of a guardian to make decisions in matters having a permanent effect on the life and development of the child, as set forth in article 719.
'Legal custody' means the right to have physical custody of the child and to determine where and with whom the child shall reside; to exercise the rights and duty to protect, train, and discipline the child; the authority to consent to major medical, psychiatric, and surgical treatment; and to provide the child with food, shelter, education, and ordinary medical care, all subject to any residual rights possessed by the child's parents.
Purpose of Guardianship
Citation: Ch. Code Art. 718
The purpose of guardianship is to provide a permanent placement for children when neither reunification with a parent nor adoption has been found to be in their best interests; to encourage stability and permanence in the lives of children who have been adjudicated to be in need of care and have been removed from the custody of their parent; and to increase the opportunities for the prompt permanent placement of children, especially with relatives, without ongoing supervision by the department.
This chapter is intended to ensure that the fundamental needs of children are met and the constitutional rights of all parties are recognized and enforced.
A Guardian's Rights and Responsibilities
Citation: Ch. Code Art. 719
Unless the court specifies otherwise, a guardian shall exercise the rights and responsibilities of legal custody and shall have the authority to consent to the child's marriage, to consent to his or her enlistment in the armed forces of the United States, and to make other decisions concerning the child, except the right to consent to the child's adoption.
Qualifying the Guardian
Citation: Ch. Code Art. 721
The Department of Children and Family Services shall submit to the court a confidential report of its investigation and evaluation of the home of the proposed guardian. The report shall include all of the following:
- The moral and financial fitness of the proposed guardian
- The conditions of the home of the proposed guardian with respect to health, adjustment, and other advantages or disadvantages for the child
- The physical and mental condition of the child and his or her reaction to the proposed guardianship
- The plan for the child if the proposed guardian becomes incapable of providing care
Procedures for Establishing Guardianship
Citation: Ch. Code Art. 720; 722
After a child has been adjudicated to be in need of care, a motion for guardianship may be filed by the department, parent, or counsel for the child; or, when the guardian is deceased, an individual previously named as a successor guardian in a guardianship subsidy agreement with the department; or the department may submit a case plan along with the case review report to the court and all counsel recommending guardianship.
The motion, case review report, or case plan shall include all of the following:
- The child's name, gender, and date and place of birth
- A description of the child's mental and physical health
- The current placement of the child and when it began
- The name and address of the proposed guardian and any relationship to the child
- The name and address of the child's parents
- A plain and concise statement of the facts on which the motion, case review report, or case plan for guardianship is sought and why neither adoption nor reunification with a parent is in the child's best interests
The home study shall be attached to the petition unless it has not been completed.
The petitioner shall have the burden of proving all of the following by clear and convincing evidence:
- The child has been adjudicated to be in need of care.
- Neither adoption nor reunification with a parent is in the best interests of the child.
- The child has resided with the proposed guardian for at least 6 months, unless the court waives the residence requirement for good cause.
- The proposed guardian is able to provide a safe, stable, and wholesome home for the child for the duration of minority.
If the child is age 12 or older, the court shall solicit and consider his or her wishes in the matter.
The court shall hold a hearing before approving a guardianship and shall, at the conclusion of the hearing, enter a written order that includes the findings upon which the order is based.
Contents of a Guardianship Order
Citation: Ch. Code Art. 723
The court may grant the motion and appoint a guardian for the child if the court finds by clear and convincing evidence that the requirements of article 722 have been met and that the proposed guardianship is in the best interests of the child.
The guardianship order shall address the frequency and nature of visitation or contact between the child and his or her parent, as necessary to ensure the health, safety, and best interests of the child. The guardianship order may require the parent to contribute to the support of the child to the extent the court finds the parent is able pursuant to article 685.
The guardianship order continues until the child reaches age 18, unless earlier modified or terminated by the court in accordance with article 724.
Modification/Revocation of Guardianship
Citation: Ch. Code Art. 724
The court shall retain jurisdiction to enforce, modify, or terminate a guardianship order until the child reaches age 18. The program representing the child in the child of need of care proceedings pursuant to Children's Code Article 607 and the program representing the indigent parents in the child in need of care proceedings pursuant to Children's Code Article 608 shall provide representation in guardianship proceedings.
Any of the following parties may seek to enforce, modify, or terminate a guardianship order:
- The department
- Counsel for the child
- The guardian or, if the guardian is incapacitated, an individual previously named as a successor guardian by the guardian in a guardianship subsidy agreement with the department
- A parent permitted to intervene under article 707
- The court on its own motion
A guardianship order may be modified or terminated if the court finds by clear and convincing evidence that there has been a substantial and material change in the circumstances of the guardian or child because of any of the following:
- The guardian no longer wishes to serve or can no longer serve as guardian of the child.
- Continuation of the guardianship is so deleterious to the child as to justify a modification or termination of the relationship, or the harm likely to be caused from a change in the guardianship is substantially outweighed by the advantages to the child of the modification.
The court shall hold a hearing before modifying or terminating a guardianship and shall, at the conclusion of the hearing, enter a written order that includes the findings upon which the order is based.
Kinship Guardianship Assistance
Citation: Admin. Code Tit. 67, Part V, § 4101
The Subsidized Guardianship Program enables the department to make payments to certified relative and fictive kin caregivers on behalf of a child who otherwise might not be able to achieve permanency outside of agency custody because of special needs or other circumstances. Subsidy payments shall be limited to a child for whom guardianship is indicated due to other more permanent options such as reunification with the parents, unsubsidized custody to a relative or other caregiver, or adoption is determined to be unfeasible.
The guardianship subsidy applies only:
- To a child for whom the department holds legal custody
- To potential caregivers with whom the child had an established familial or emotional relationship prior to entering department custody
- When the kinship placement provider becomes a certified foster caregiver
- When the child remains in the certified kinship placement for at least 6 consecutive months
The prospective guardianship family must meet basic foster care certification eligibility requirements in all respects, except for the ability to assume complete financial responsibility for the child's care.
The child may be subsidized for the following services up to age 18:
- The maintenance subsidy to cover basic living expenses such as board, room, clothing, spending money, and ordinary medical costs
- The special board rate, available to guardians who were foster parents for a foster child for whom a special board rate was received during foster care, if the subsidy continues to be necessary to meet the child's needs
- The special services subsidy, time-limited special assistance for an anticipated expense, including special medical costs, ongoing therapeutic treatment, or legal and court costs, when no other family or community resource is available
- Eligibility for Medicaid coverage up to age 18
Links to Agency Policies
Louisiana Administrative Code, Title 67, click on § 4101.