Kinship Guardianship as a Permanency Option - Maine

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Definitions

Citation: Rev. Stat. Tit. 18-C, § 1-201; Pol. Man. Ch. V. § D-7

Effective July 1, 2019: The term 'guardian' means a person who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or spouse or by the court. The term 'guardian' includes a limited, an emergency, and a temporary substitute guardian but not a guardian ad litem.

In policy: 'Relative placement' refers to the use of relatives as a temporary placement for children in the custody of the Department of Health and Human Services, or comparable departments in another State through the Interstate Compact on the Placement of Children, while the children/parent(s) are engaged in the rehabilitation/reunification process.

'Kinship care' is the placement of a child with relatives on a permanent basis once the court or the family has determined that the child will not be returning to the home and care of the parent(s). Temporary relative placements can evolve into kinship care.

Purpose of Guardianship

Citation: Code of Rules 10 148 012, § 1

Permanency guardianship provides a permanency option to children who might otherwise remain in foster care until the age of majority. The State has developed a comprehensive program to provide relatives and other individuals the opportunity to become the permanency guardians of children that are in the custody of the State or of Tribal authorities in the State of Maine. Through the provision of a financial subsidy, the State seeks to promote the utilization of guardianship and improved permanency outcomes for children in out-of-home placement.

A Guardian's Rights and Responsibilities

Citation: Rev. Stat. Tit. 22, § 4038-C; Tit. 18-C, §§ 5-207; 5-208

Effective July 1, 2019: A permanency guardian has all of the powers and duties of a guardian of a minor pursuant to title 18-C, §§ 5-207 and 5-208.

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

A guardian may do any of the following:

  • Apply for and receive money for the support of the minor otherwise payable to the minor's parent under the terms of any statutory system of benefits or insurance or any private contract, devise, trust, conservatorship, or custodianship
  • Take custody of the minor and establish the minor's place of custodial dwelling, but may establish or move the minor's custodial dwelling outside the State only upon express authorization of the court
  • Consent to medical or other care, treatment, or service for the minor
  • Consent to the marriage of the minor
  • If reasonable under all of the circumstances, delegate to the minor certain responsibilities for decisions affecting the minor's well-being

The court may specifically authorize the guardian to consent to the adoption of the minor.

If coguardians are appointed, the powers of the guardians are joint and several, unless limited by the appointing document.

Qualifying the Guardian

Citation: Rev. Stat. Tit. 22, § 4038-C

The court may appoint a person to be a permanency guardian only if the court finds that the prospective permanency guardian:

  • Has the ability to provide a safe home for the child
  • Has a close emotional bond with the child and that the child has a close emotional bond with the prospective permanency guardian
  • Is willing and able to make an informed, long-term commitment to the child
  • Has the skills to care for the child
  • Has submitted to having fingerprints taken for the purposes of a national criminal history record check

Procedures for Establishing Guardianship

Citation: Rev. Stat. Tit. 22, § 4038-C; Tit. 18-C, §§ 5-204; 5-205

Effective July 1, 2019: As part of the permanency plan, the court may appoint a person or persons as guardian of a child, to be known as a permanency guardian.

The court may appoint a guardian for a minor if the court finds the appointment is in the best interests of the minor; the proposed guardian is suitable; that the parents consent; that all parental rights have been terminated; or by clear and convincing evidence that the parents are unwilling or unable to exercise their parental rights, including, but not limited to, either of the following:

  • The parent is currently unwilling or unable to meet the minor's needs and that will have a substantial adverse effect on the minor's well-being if the minor lives with the parent.
  • The parent has failed, without good cause, to maintain a parental relationship with the minor, including, but not limited to, failing to maintain regular contact with the minor for a length of time that evidences an intention to abandon the minor.

After a hearing, the court shall make the appointment of a guardian if the court finds that venue is proper, the required notices have been given, the conditions listed above have been met, and the best interests of the minor will be served by the appointment. The court shall appoint a person or persons nominated by the minor, if the minor has reached age 14.

If the court determines at any stage of the proceeding, before or after appointment, that the interests of the minor are or may be inadequately represented, the court may appoint an attorney to represent the minor, giving consideration to the choice of the minor if the minor has reached age 14.

Contents of a Guardianship Order

Citation: Rev. Stat. Tit. 18-C, § 5-206; Tit. 22, § 4038-C

Effective July 1, 2019: An order appointing a guardian of a minor must include the following:

  • The reasons for the appointment of the guardian
  • The powers and duties granted to the guardian
  • The rights and responsibilities retained by the parent
  • The anticipated duration of the appointment
  • A description of the process and standards for modification and termination
  • Notice of the court's authority to hold a hearing and find that a party has violated a part of the order and is in contempt and to order relief to the other party for the violations or contempt

An order appointing a guardian of a minor must specify whether the minor's parent retains any of the following rights and responsibilities after the appointment and, if any such rights or responsibilities are not retained, the reasons they are not retained:

  • A schedule of parent-child contact or a determination by the court that denial of parent-child contact is necessary to protect the physical safety or emotional well-being of the minor
  • Access to records and information regarding the minor
  • Parental rights and responsibilities as described under title 19-A, § 1501(5)
  • Child support

A parent, grandparent, or sibling of a child subject to a permanency guardianship, or to a proceeding to establish a permanency guardianship, may petition the court to determine rights of contact. If the court determines that it is in the best interests of the child, it may order that the parent, grandparent, or sibling of the child has a reasonable right of contact with the child and may specify the type, frequency, duration, and conditions of that contact.

Modification/Revocation of Guardianship

Citation: Rev. Stat. Tit. 22, § 4038-C; Title 18-C, § 5-210

Any party to the child protective proceeding may petition to terminate a permanency guardianship and any parent, grandparent, or sibling of the child may petition the court to establish rights of contact with the child. However, a person having once petitioned unsuccessfully to terminate a permanency guardianship or to establish rights of contact may not bring a new petition to terminate the permanency guardianship or to establish rights of contact within 12 months after the end of the previous proceeding, and then only if the petitioner alleges and proves that there has been a substantial change of circumstances regarding the child's welfare.

The permanency guardianship may be terminated only if the petitioner proves by a preponderance of evidence that the termination is in the best interests of the child.

Resignation of a permanency guardian does not terminate the guardianship until it has been approved by the court. If a permanency guardian resigns, dies, or becomes incapacitated, the court shall hold a judicial review and a permanency-planning hearing at the earliest practicable time.

Effective July 1, 2019: A guardian of a minor, a parent of a minor, a person interested in the welfare of a minor, or the minor who is age 14 or older may file a motion asking the court to modify the terms of an order appointing a guardian or to take other action in the best interests of the minor as circumstances require. Unless the motion specifies that is it filed with the consent of all parties entitled to notice, the matter must be set for a hearing to determine whether there has been a substantial change in circumstances necessitating modification of the order and how the court should modify the order in furtherance of the best interests of the minor and the parents' rights.

A guardianship of a minor terminates upon the minor's death, adoption, emancipation, marriage, or attainment of majority or as ordered by the court.

Kinship Guardianship Assistance

Citation: Rev. Stat. Tit. 22, § 4038-D; Code of Rules 10 148 012, § 3

Subject to rules adopted to implement this section, the department may provide subsidies for a child who is placed in a permanency guardianship or in a similar status by a Native American Tribe, when reasonable but unsuccessful efforts have been made to place the child without guardianship subsidies and if the child would not be placed in a permanency guardianship without the assistance of the program.

In regulation: The child and permanency guardian are eligible for the guardianship subsidy only if all of the following criteria are met:

  • The child must be in the legal custody of the department or Tribe.
  • Reunification for the child must no longer be a viable permanency option.
  • The child must meet the definition of a special needs child.
  • Permanency guardianship must be considered to be in the best interests of the child by the court.
  • The family must have been studied and approved as meeting the department's or Tribe's standards for permanency guardianship either by the department, Tribe, or by a licensed child-placing agency prior to placement in permanency guardianship status.

Appointment by the court as a permanency guardian does not establish that the permanency guardian meets the standards for permanency guardianship for purposes of the guardianship subsidy.

Links to Agency Policies

Maine Department of Health and Human Services, Office of Child and Family Services, Kinship Care Policy