Kinship Guardianship as a Permanency Option - Minnesota

Date: July 2018


Citation: Ann. Stat. § 260C.007

The term 'custodian' means any person who is under a legal obligation to provide care and support for a child or who is in fact providing care and support for a child. For an Indian child, custodian means any Indian person who has legal custody of an Indian child under Tribal law or custom; under State law; or to whom temporary physical care, custody, and control has been transferred by the parent of the child, as provided in § 260.755, subd. 10.

The term 'family or household members' means spouses, former spouses, parents and children, persons related by blood, persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time.

The term 'legal custody' means the right to the care, custody, and control of a child who has been taken from a parent by the court in accordance with the provisions of § 260C.201 or 260C.317.

The term 'parent' means a person who has a legal parent and child relationship with a child that confers or imposes on the person legal rights, privileges, duties, and obligations, including the mother and child relationship and the father and child relationship. For matters governed by the Indian Child Welfare Act, parent includes any Indian person who has adopted a child by Tribal law or custom but does not include the unwed father when paternity has not been acknowledged or established.

The term 'relative' means a person related to the child by blood, marriage, or adoption; the legal parent, guardian, or custodian of the child's siblings; or an individual who is an important friend with whom the child has resided or had significant contact. 'Relative of an Indian child' means a person who is a member of the Indian child's family as defined in the Indian Child Welfare Act of 1978.

Purpose of Guardianship

Citation: Ann. Stat. §§ 260C.513; 256N.22

Termination of parental rights and adoption, or guardianship to the Commissioner of Human Services through a consent to adopt, are preferred permanency options for a child who cannot return home. If the court finds that termination of parental rights and guardianship to the commissioner are not in the child's best interests, the court may transfer permanent legal and physical custody of the child to a relative when that order is in the child's best interests.

To be eligible for guardianship assistance, the legally responsible agency must complete the following determinations regarding permanency for the child prior to the transfer of permanent legal and physical custody:

  • A determination that reunification and adoption are not appropriate permanency options for the child
  • A determination that the child demonstrates a strong attachment to the prospective relative custodian, and the prospective relative custodian has a strong commitment to caring permanently for the child

A Guardian's Rights and Responsibilities

Citation: Ann. Stat. § 260C.515

A transfer of legal and physical custody includes responsibility for the protection, education, care, and control of the child and decision-making on behalf of the child.

Qualifying the Guardian

Citation: Ann. Stat. §§ 260C.204; 245C.08

A relative or foster parent who wants to be considered for legal permanent custody of the child shall cooperate with the background study required under § 245C.08, if the individual has not already done so, and with the home study process required under chapter 245A for providing child foster care and for adoption under §259.41.

For the background study conducted by the Department of Human Services, the commissioner shall review the following:

  • Information related to names of substantiated perpetrators of maltreatment of vulnerable adults
  • Department records relating to the maltreatment of children
  • Information from juvenile courts when there is reasonable cause
  • Information from the Bureau of Criminal Apprehension, including information regarding a background study subject's registration in Minnesota as a predatory offender
  • Information received as a result of submission of fingerprints for a national criminal history record check
  • Information from the child abuse and neglect registry for any State in which the background study subject has resided in the past 5 years
  • Information from national crime information databases when the background study subject is age 18 or older

Procedures for Establishing Guardianship

Citation: Ann. Stat. § 260C.515

If the child is not returned home at or before the conclusion of a permanency hearing, the court may order permanent legal and physical custody to a fit and willing relative in the best interests of the child according to the following requirements:

  • An order for transfer of permanent legal and physical custody to a relative shall only be made after the court has reviewed the suitability of the prospective legal and physical custodian.
  • In transferring permanent legal and physical custody to a relative, the juvenile court shall follow the standards applicable under this chapter and chapter 260 and the procedures in the Minnesota Rules of Juvenile Protection Procedure.
  • A permanent legal and physical custodian may not return a child to the permanent care of a parent from whom the court removed custody without the court's approval and without notice to the responsible social services agency.
  • The social services agency may file a petition naming a fit and willing relative as a proposed permanent legal and physical custodian.
  • When a petition is made for transfer of permanent legal and physical custody to a relative who is not a parent, the court must find that:
    • Transfer of permanent legal and physical custody is in the child's best interests.
    • Adoption is not in the child's best interests based on the determinations in the kinship placement agreement required under § 256N.22, subd. 2.
    • The agency made efforts to discuss adoption with the child's parent or parents, or the agency did not make efforts to discuss adoption and the reasons why efforts were not made.
    • There are reasons to separate siblings during placement, if applicable.

Contents of a Guardianship Order

Citation: Ann. Stat. § 260C.515

The juvenile court may maintain jurisdiction over the responsible social services agency, the parents or guardian of the child, the child, and the permanent legal and physical custodian for purposes of ensuring appropriate services are delivered to the child and permanent legal custodian for the purpose of ensuring conditions ordered by the court related to the care and custody of the child are met.

Modification/Revocation of Guardianship

Citation: Ann. Stat. §§ 260C.521; 518.18; 518.185; 260C.521

An order for a relative to have permanent legal and physical custody of a child may be modified using standards under §§ 518.18 and 518.185. The social services agency is a party to the proceeding and must receive notice.

A motion to modify a custody order may be granted if the court has reason to believe that the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development. A party seeking modification of a custody order shall submit an affidavit setting forth facts supporting the requested modification and shall give notice, together with a copy of the affidavit, to other parties to the proceeding, who may file opposing affidavits.

The kinship assistance agreement ends upon death or incapacity of the relative custodian or modification of the order for permanent legal and physical custody in which legal or physical custody is removed from the relative custodian. In the event of the death or incapacity of the relative custodian, eligibility for kinship assistance and title IV-E assistance, if applicable, is not affected if the relative custodian is replaced by a successor named in the kinship assistance benefit agreement.

Kinship Guardianship Assistance

Citation: Ann. Stat. § 256N.22

To be eligible for guardianship assistance, there must be a judicial determination that a transfer of permanent legal and physical custody to a relative is in the child's best interests. For a child under the jurisdiction of a Tribal court, a judicial determination under a similar provision in Tribal code indicating that a relative will assume the duty and authority to provide care, control, and protection of a child who is residing in foster care, and to make decisions regarding the child's education, health care, and general welfare until adulthood, and that this is in the child's best interests is considered equivalent. Additionally, a child must:

  • Have been removed from the child's home pursuant to a voluntary placement agreement or court order
  • Have resided with the prospective relative custodian who has been a licensed child foster parent for at least 6 consecutive months or have received from the licensure requirement based on a determination that:
    • An expedited move to permanency is in the child's best interests.
    • Expedited permanency cannot be completed without provision of guardianship assistance.
    • The prospective relative custodian is uniquely qualified to meet the child's needs on a permanent basis.
  • Meet applicable citizenship and immigration requirements
  • Have been consulted regarding the proposed transfer of permanent legal and physical custody to a relative if the child is at least age 14

In addition to the above requirements, the child's prospective relative custodian must meet applicable background study requirements.

To be eligible for title IV-E guardianship assistance, a child must also meet any additional criteria in 42 U.S.C § 673(d). A sibling who meets the criteria for title IV-E guardianship assistance is eligible for assistance if the child and sibling are placed with the same relative custodian.

Links to Agency Policies

Minnesota Administrative Rules, Department of Human Services

Minnesota Department of Human Services: