Kinship Guardianship as a Permanency Option - Massachusetts

Date: July 2018

Definitions

Citation: Code of Regs. Tit. 110, § 2.00

The term 'guardian' means the individual, organization, or agency that has been appointed guardian of the person by a court of the Commonwealth, in accordance with chapter 190B of the statutes, or a court of competent jurisdiction in another State.

Purpose of Guardianship

Citation: Code of Regs. Tit. 110, §§ 7.300; 7.301

The Department of Children and Families is committed to establishing permanent placements for all children in its care and custody. Pursuant to this commitment, the department may sponsor a guardianship for selected children. The children selected will be those who are not likely to return to their parents and who, for whatever reason, are not candidates for adoption.

The department shall consider sponsoring a guardianship for a child in its care or custody if the child meets all the following criteria:

  • The child will not be able to return to his or her biological parents. This determination is made by the department based upon the history of the case and the clinical judgment of department social work staff.
  • In the judgment of the department, there is no reasonable likelihood that the child will be adopted. This determination may be made by the department when, for example, the child is unwilling to be adopted, or when, in the clinical judgment of the department social work staff, adoption would not be in the child's best interests.
  • The child has resided with the potential guardians for at least 1 year. This requirement may be waived if it is determined by the department to be in the best interests of the child.
  • The child is at least age 12. This requirement may be waived if it is determined by the department to be in the best interests of the child (for example, to keep sibling groups together).

A Guardian's Rights and Responsibilities

Citation: Ann. Laws Ch. 190B, § 5-209

A guardian has the powers and responsibilities of a parent regarding the child's support, care, education, health, and welfare. A guardian shall act at all times in the child's best interests and exercise reasonable care, diligence, and prudence.

A guardian of a child may:

  • Apply for and receive money for the support of the child that would be otherwise payable to the parent, guardian, or custodian
  • Consent to medical or other professional care, treatment, or advice for the child
  • Consent or refuse to consent to the marriage or adoption of the child
  • Utilize the services of agencies and individuals to provide necessary and desirable social and protective services of different types appropriate to the child, including, but not limited to, counseling services, advocacy services, legal services, and other aid as the guardian deems to be in the interests of the child

Qualifying the Guardian

Citation: Code of Regs. Tit. 110, §§ 7.301; 7.101; 7.108

Before guardianship can be considered, the child must have resided with the potential guardians for at least 1 year. The placement of the child with the potential guardian must have been approved by the department as meeting department requirements, as set forth in regulation.

When considering a kinship or child-specific placement, the department shall require that the relative, extended family member, or individual chosen by the parent(s) meet the department's requirements as set forth in regulation. The approval process for the potential guardian, all household members, and the guardian's home shall include the following:

  • Criminal background and child abuse and neglect history checks on all household members age 14 and older and on those younger about whom concerns exist
  • A home visit
  • A determination that the home meets the physical standards set forth in regulation
  • Interviews of all household members

Procedures for Establishing Guardianship

Citation: Code of Regs. Tit. 110, § 7.302

The department shall proceed to implement the guardianships it sponsors as follows:

  • The department determines that the child meets the criteria set forth above.
  • The child's assigned social worker meets with the child and potential guardian. The guardianship plan is presented to them at this time for their consideration and approval.
  • If guardianship is acceptable to the child and potential guardian, the social worker will make reasonable and diligent efforts to contact the child's parents. If the parents are contacted, they will be informed of the proposed guardianship proceeding, of their right to contest the guardianship proceeding, and of their right, if indigent, to court-appointed counsel. The parents' consent will then be sought.
  • An employee of the legal staff of the department will prepare the appropriate court papers. If the parents of the child have consented, their consent shall be noted upon the court papers by obtaining their signature. If the parents of the child have not consented to the guardianship in writing, they will be given notice as required by law.
  • An employee of the legal staff of the department will initiate and prosecute all court proceedings necessary to finalize the guardianship. The guardianship plan will be presented to the court for review as part of the proceeding, and said plan shall address the appropriateness of the proposed placement and the suitability of the proposed guardians.

Contents of a Guardianship Order

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

Modification/Revocation of Guardianship

Citation: Ann. Laws Ch. 190B, § 5-210

A guardian's authority and responsibility terminates upon the death, resignation, or removal of the guardian or upon the child's death, adoption, marriage, or attainment of majority. Termination shall not affect the guardian's liability for prior acts or the obligation to account for funds and assets of the ward. Resignation of a guardian shall not terminate the guardianship until it has been approved by the court.

Kinship Guardianship Assistance

Citation: Code of Regs. Tit. 110, § 7.303

If a child is placed under guardianship through the department, and the child does not receive support payments from any other State or Federal agency, then the child shall be eligible for continued support payments and/or medical assistance from the department, to the same extent as if the child had remained in foster care.

If a child is placed under guardianship through the department, and the child is receiving support payments from any other State or Federal agency, then the child will be eligible for support payments and/or medical assistance from the department, only to the extent that it would raise the total support from all sources to the amount the child would be receiving if he/she had remained in foster care.

Links to Agency Policies

Massachusetts Code of Regulations:

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