Kinship Guardianship as a Permanency Option - Mississippi

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Definitions

Citation: Ann. Code § 43-21-105

The term 'parent' means the father or mother to whom the child has been born or by whom the child has been legally adopted.

'Guardian' means a court-appointed guardian of the person of a child. A 'custodian' means any person having the present care or custody of a child whether such person be a parent or otherwise. A 'legal custodian' is a court-appointed custodian of the child.

The term 'custody' means the physical possession of the child by any person. The term 'legal custody' means the legal status created by a court order that gives the legal custodian the responsibilities of physical possession of the child and the duty to provide the child with food, shelter, education, and reasonable medical care, all subject to residual rights and responsibilities of the parent or guardian of the person.

The term 'durable legal custody' means the legal status created by a court order that gives the durable legal custodian the responsibilities of physical possession of the child and the duty to provide the child with care, nurture, welfare, food, shelter, education, and reasonable medical care. All these duties are subject to the residual rights and responsibilities of the natural parents or guardians of the child or children.

'Durable legal relative guardianship' means the legal status created by a youth court order that conveys the physical and legal custody of a child by durable legal guardianship to a relative or fictive kin who is licensed as a foster or resource parent.

The term 'relative' means a person related to the child by affinity or consanguinity within the third degree. The term 'fictive kin' means a person not related to the child legally or biologically but who is considered a relative due to a significant, familial-like and ongoing relationship with the child and family.

Purpose of Guardianship

Citation: Ann. Code § 43-21-609

If the court finds that temporary relative placement, adoption, or foster care placement is inappropriate, unavailable, or otherwise not in the best interests of the child, durable legal custody may be granted by the court to any person, subject to any limitations and conditions the court may prescribe.

A Guardian's Rights and Responsibilities

Citation: Code of Rules § 18-006-104

Durable legal custody gives the custodian the responsibilities of physical possession of the child and the duty to provide the child with care, nurture, welfare, food, shelter, education, and reasonable medical care. Legal guardianship transfers to the caregiver the following parental rights with respect to the child: protection, education, care and control of the person, custody of the person, and decision-making. The department will be released from any oversight or monitoring responsibilities in either durable legal custody or legal guardianship unless ordered otherwise by the court. The birth parents maintain their parental rights.

Qualifying the Guardian

Citation: Code of Rules § 18-006-104

The caseworker will have the following responsibilities in achieving durable legal custody and/or guardianship:

  • Enlist the family's cooperation in identifying all possible relative resources and make contact with them in a timely manner
  • Assure that a home evaluation, including police and background checks of any and/or all relatives who are being considered, has been completed
  • Conduct a home evaluation that includes an assessment of the safety of the home
  • Discuss alternate permanency options, including adoption, with all parties involved in terms they understand to ensure that this is the most appropriate option available for this child
  • In conjunction with the child, relatives, and parents, develop a family service plan that identifies activities to be performed by all parties
  • Document all efforts to engage families in the planning and development of child's permanent goals
  • Inform the court of the identified individuals' interest and ability to assume durable legal custody and/or legal guardianship
  • Obtain approval of the goal from the court
  • Provide support such as referrals, financial services, and/or other follow-up services to secure the placement
  • Complete the Durable Legal Custody Agreement with the legal guardians designated by the court

Procedures for Establishing Guardianship

Citation: Ann. Code § 43-21-609; Code of Rules § 18-006-104

In neglect and abuse cases, the youth court may grant durable legal relative guardianship to a relative or fictive kin licensed as a foster parent, if the licensed relative foster parent or licensed fictive kin foster parent exercised physical custody of the child for at least 6 months before the grant of durable legal relative guardianship and the Department of Child Protection Services had legal custody or exercised supervision of the child for at least 6 months.

In order to establish durable legal relative guardianship, the youth court must find the following:

  • That both reunification and adoption have been determined to be inappropriate
  • That the relative guardian or fictive kin guardian shows full commitment to the care, shelter, education, nurture, and reasonable medical care of the child
  • That the youth court consulted with any child age 12 or older before granting durable legal relative guardianship

In regulation: No child shall be assigned a permanency goal of durable legal custody unless there are documented efforts in the child's case record to move the child to adoption and documentation of a reasonable basis why it is in the child's best interests not to be considered for adoption.

Durable legal custody or legal guardianship is achieved after the court grants custody to the placement resource. No further review hearings are necessary. The department is relieved of custody of the child and from any oversight or monitoring responsibilities unless otherwise ordered by the court.

Contents of a Guardianship Order

Citation: Code of Rules § 18-006-104, App. P

In the durable legal custody agreement, the custodian agrees to the following terms:

  • The child will be allowed to remain in the home of the custodian and be raised as a member of the family group until the child reaches adulthood.
  • The custodian will provide continued care for the child in the same home in order to restore and create a permanent and stable foundation for the child.
  • The custodian agrees to act as the primary parental figure of the child until he or she becomes an adult, marries, or is otherwise freed from minority.
  • The custodian agrees that he or she will not seek the removal of the child from his or her home except under the most serious and emergency circumstances, acknowledging his or her willingness to accept legal, physical, and financial responsibility if durable legal custody is accepted and ordered by the court.
  • The custodian acknowledges that the option of adoption was presented and discussed and determined not to be in the best interests of the child and agrees and understands that he or she is accepting legal and physical custody of the child and that any board payment and/or Medicaid being received through the department will end at the time the court finalizes custody.

Modification/Revocation of Guardianship

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

Kinship Guardianship Assistance

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

Links to Agency Policies

Mississippi Department of Child Protection Services (MDCPS), MDCPS Policy, Table of Contents