Kinship Guardianship as a Permanency Option - Montana

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Definitions

Citation: Pol. Man. § 407-4

A 'legal guardian' is a person who has qualified as a caregiver of a child in the custody of the Department of Public Health and Human Services or Tribe and has been appointed guardian by the court.

A 'legal guardianship' is a judicially created relationship between a child and caregiver that is intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver the following parental rights with respect to the child: protection, education, care and control of the child, custody of the child, and decision-making.

A 'kinship guardian' is:

  • A member of the child's extended family
  • A member of the child's or family's Tribe
  • The child's godparents
  • The child's stepparents
  • A person to whom the child, child's parents, and family ascribe a family relationship and with whom the child has had a significant emotional tie that existed prior to the agency's involvement with the child or family; also known as 'fictive kin'

Documentation demonstrating that the prospective guardian meets the 'fictive kin' definition must be maintained in the child's case file. Documentation may include, but is not limited to, the child's and/or birth parent(s) statement ascribing a family relationship and significant emotional tie that existed prior to the agency's involvement.

A 'nonkinship guardian' is a person to whom the child or child's family did not have a significant emotional tie that existed prior to the agency's involvement with the child or family (i.e. foster parent).

Purpose of Guardianship

Citation: Ann. Code § 41-3-444

A guardian may be appointed for a dependent child when the Department has made reasonable efforts to reunite the parent and child, further efforts to reunite the parent and child by the department likely would be unproductive, and reunification of the parent and child would be contrary to the best interests of the child.

A Guardian's Rights and Responsibilities

Citation: Ann. Code §§ 41-3-444; 72-5-231

A guardian appointed under this section may exercise the powers and has the duties provided in § 72-5-231.

Unless otherwise limited by the court, a guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of the parent's child. However, a guardian is not legally obligated to provide from the guardian's own funds for the child and is not liable to third persons by reason of the parental relationship for acts of the child.

The guardian is empowered to facilitate the child's education, social, or other activities and to authorize medical or other professional care, treatment, or advice. A guardian is not liable by reason of this consent for injury to the child resulting from the negligence or acts of third persons, unless it would have been illegal for a parent to have consented. A guardian also may consent to the marriage or adoption of the child.

Qualifying the Guardian

Citation: Admin. Rules § 37.50.1101

In order to be approved as a guardian, the prospective guardian and the guardian's home must meet the requirements set forth for youth foster homes in title 37, chapter 51, of the Administrative Rules.

The child for whom guardianship is being considered must have resided with the prospective guardian for a minimum of 6 months.

A written assessment of the prospective guardian and the guardian's home must be completed. The assessment must include a determination that the prospective guardian and home of the prospective guardian meet the requirements of this rule. The assessment must demonstrate the appropriateness of the proposed guardian to become the legal custodian for a specific child. Factors to be considered in determining the appropriateness of the proposed guardian include the following:

  • The proposed guardian's knowledge of the child's background, including placement history, history of trauma, and the potential effect of that history on the child's development and future functioning
  • Understanding and acceptance of the continued role of the child's birth family
  • Understanding and acceptance of the powers and duties of a guardian
  • The desire of the prospective guardian to become the child's guardian

If the child for whom guardianship is being considered is age 12 or older, the child must be consulted regarding the plan for guardianship.

Procedures for Establishing Guardianship

Citation: Ann. Code § 41-3-444

The court may, upon the petition of the department or guardian ad litem, enter an order appointing a guardian for a child who has been placed in the temporary or permanent custody of the department. The court may appoint a guardian if the following facts are found by the court:

  • The department has given its written consent to the appointment of the guardian and whether or not the guardianship is to be subsidized.
  • If the guardianship is to be subsidized, the department has given its written consent after the department has considered initiating or continuing financial subsidies.
  • The child has been adjudicated a youth in need of care.
  • The child has lived with the potential guardian in a family setting, and the potential guardian is committed to providing a long-term relationship with the child.
  • It is in the best interests of the child to remain with or to be placed with the potential guardian.
  • Either termination of parental rights to the child is not in the child's best interests or parental rights to the child have been terminated, but adoption is not in the child's best interests.
  • If the child for whom the petition for guardianship has been filed is an Indian child, as defined in the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., the child's Tribe has received notification from the State of the initiation of the proceedings.

In the case of an abandoned child, the court may give priority to a member of the abandoned child's extended family, including adult siblings, grandparents, great-grandparents, aunts, and uncles, if placement with the extended family member is in the best interests of the child.

Contents of a Guardianship Order

Citation: Ann. Code § 41-3-444

The entry of a decree of guardianship pursuant to this section terminates the custody of the department and the involvement of the department with the child and the child's parents, except for the department's provision of a financial subsidy, if any.

Modification/Revocation of Guardianship

Citation: Ann. Code § 41-3-444

The court may revoke a guardianship if the court finds, after hearing a petition for removal of the child's guardian, that continuation of the guardianship is not in the best interests of the child. Notice of a hearing on the petition must be provided by the moving party to the child's lawful guardian, the department, any court-appointed guardian ad litem, the child's parent if the rights of the parent have not been terminated, and other persons directly interested in the welfare of the child.

A guardian may petition the court for permission to resign the guardianship. A petition may include a request for the appointment of a successor guardian. After notice and hearing the petition for removal or permission to resign, the court may appoint a successor guardian or may terminate the guardianship and restore temporary legal custody to the department.

Kinship Guardianship Assistance

Citation: Ann. Code § 41-3-444; Admin. Rules §§ 37.50.1102; 37.50.1103

The department may provide a financial subsidy to a guardian if the guardianship meets the department's criteria and if the department determines that a subsidy is in the best interests of the child.

In regulation: A child is eligible to have State-subsidized guardianship payments made on the child's behalf if the child has been adjudicated a youth in need of care. Subsidized guardianship payments may be made to the guardian of an eligible child when:

  • The child meets the guardianship criteria found in § 41-3-444.
  • The prospective guardian and guardian's home meet the requirements of regulation.
  • The court has issued a decree of guardianship.
  • An agreement describing the terms and conditions of the guardianship subsidy has been negotiated by the department with the prospective guardian.
  • Prior to the issuance of the guardianship decree, the prospective guardian and the department have signed an agreement describing the negotiated terms and conditions of the subsidy.

Under the Title IV-E State Plan, Guardianship Assistance Program, approved by the U.S. Department of Health and Human Services, the department is authorized to utilize Federal funds to pay guardianship subsidies on behalf of children who meet the requirements established under the terms and conditions of the Title IV-E State Plan, Guardianship Assistance Program.

Federally subsidized guardianship payments may be made to the guardian of an eligible child when:

  • The prospective guardian meets the definition of a 'kinship guardian' as established in the Title IV-E State Plan.
  • The requirements of Administrative Rule 37.51.1101 are met.
  • The requirements established under the Title IV-E State Plan and the requirements of Administrative Rule 37.50.1102 are met.

Links to Agency Policies

Montana Department of Public Health and Human Services, Child & Family Services Policy Manual, see sections 302-4 and 407-4.