Kinship Guardianship as a Permanency Option - Nebraska

Definitions

Citation: Rev. Stat. §§ 71-1901; 43-1503

The term 'kinship home' means a home where a child receives foster care and at least one of the primary caregivers has previously lived with the child or a sibling of the child, or is a trusted adult that has a preexisting, significant relationship with the child or a sibling of the child.

The term 'relative home' means a home where a child receives foster care and at least one of the primary caregivers is related to the child or to a sibling of the child in his or her care by blood, marriage, or adoption or, in the case of an Indian child, at least one of the primary caregivers is an extended family member as defined in § 43-1503.

For an Indian child, an 'extended family member' shall be as defined by the law or custom of the Indian child's primary Tribe or, in the absence of such laws or customs, shall be a person who has reached age 18 and who is the Indian child's parent, grandparent, aunt or uncle, clan member, band member, sibling, brother-in-law or sister-in-law, niece or nephew, cousin, or stepparent.

Purpose of Guardianship

Citation: Admin. Code Tit. 390, § 6-001.01

Legal guardianship is considered as a permanency objective when:

• All efforts to reunify the family have been exhausted.
• The child cannot return home.
• All reasonable efforts to secure adoption of the child have been unsuccessful, or it is determined that adoption is not in the best interests of the child.

A Guardian's Rights and Responsibilities

Citation: Rev. Stat. § 43-1312.01

In the order granting guardianship, the juvenile court shall grant to the guardian such powers, rights, and duties with respect to the care, maintenance, and treatment of the child, as the biological or adoptive parent of the child would have.

A guardianship established under this section does not terminate the parent-child relationship, including:

• The right of the child to inherit from his or her parents
• The right of the biological parents to consent to the child's adoption
• The responsibility of the parents to provide financial, medical, or other support as ordered by the court

Qualifying the Guardian

Citation: Rev. Stat. § 43-1312.01; Admin. Code Tit. 390, §§ 6-004; 6-004.01

Before issuing an order for guardianship, the court must find that the guardian:

• Is suitable and able to provide a safe and permanent home for the child
• Has made a commitment to provide for the financial, medical, physical, and emotional needs of the child until the child reaches the age of majority or until the termination of extended guardianship assistance payments pursuant to § 43-4511 or 43-4514
• Has made a commitment to prepare the child for adulthood and independence
• Agrees to give notice of any changes in his or her residential address or the residence of the child by filing a written document in the juvenile court file of the child

In regulation: The Department of Health and Human Services will support a legal guardianship using the following guidelines:

• The child has a relationship with a prospective guardian and has lived successfully for a minimum of 6 months in the home of the guardian, or the caseworker has determined that the child will develop a relationship with a relative or foster parent who is committed to the guardianship plan.
• The prospective guardian and the child can function effectively without department supervision.
• The guardian is able and willing to support the child financially, or satisfactory financial arrangements can be made.
• The child is age 12 or older, is part of a sibling group, or is attached to the proposed guardian and adoption is not feasible.

The department will use the following priorities in selecting a potential guardian:

• A relative of the child
• A foster parent or another person with whom the child has an existing relationship
• A new foster parent who is committed to the guardianship plan

The child's wishes will be taken into consideration in any decision regarding a potential guardian.

Procedures for Establishing Guardianship

Citation: Rev. Stat. § 43-1312.01; Admin. Code Tit. 390, §§ 6-004.02; 6-004.03

If the permanency plan for a child does not recommend return of the child to his or her parent or that the child be placed for adoption, the juvenile court may place the child in a guardianship in a relative home, in a kinship home, or with an individual as provided in § 43-285 if:

• The child is a juvenile who has been adjudged to be dependent.
• The child has been in the placement for at least 6 months.
• The child consents to the guardianship, if the child is age 10 or older.

In regulation: The child, the prospective guardian, the child's guardian ad litem, and the birth parents, if their parental rights are intact, will be consulted for consent to the guardianship. If a child under age 13 has objections to the guardianship, these will be explored with the child and the guardian ad litem, and a determination of the best interests of the child will be made. If a child age 14 or older objects to the guardianship, the guardianship will not be pursued.

To ensure stability and continuity to the child, the caseworker will assist all parties involved to develop a written plan for visitation with any siblings, parents (if appropriate), and other relatives or important persons in the child's life.

When guardianship is determined to be the plan of choice for a child, and the child has resided with the prospective guardian for a minimum of 6 months, the caseworker will advise the prospective guardian to retain legal counsel and file a petition for guardianship in the county court of the county of his or her residence. The caseworker will appear in court to testify in support of the petition.

Upon approval of the court of the guardianship, the caseworker will close the case. Once the court order establishes guardianship, the department no longer has any authority or responsibility for the child except as might exist due to a subsidized guardianship.

Contents of a Guardianship Order

Citation: Rev. Stat. § 43-1312.01

In the order granting guardianship, the juvenile court:

• May specify the frequency and nature of family time or contact between the child and his or her parents, if appropriate
• May specify the frequency and nature of family time or contact between the child and his or her siblings, if appropriate
• Shall require that the guardian not return the child to the physical care and custody of the person from whom the child was removed without prior approval of the court

The court shall discontinue permanency reviews and case reviews and shall relieve the department of the responsibility of supervising the placement of the child. Notwithstanding the retention of juvenile court jurisdiction, the guardianship placement shall be considered permanent for the child.

Modification/Revocation of Guardianship

Citation: Rev. Stat. § 43-1312.01

The juvenile court shall retain jurisdiction over the child for modification or termination of the guardianship order. The child shall remain in the custody of the guardian unless the order creating the guardianship is modified by the court.

Guardianships established under this section shall terminate on the child's 19th birthday, unless the child is eligible for continued guardianship assistance payments under § 43-4511 or 43-4514 and an agreement is signed by the department, the guardian, and the young adult to continue the guardianship assistance. The guardian shall ensure that any guardianship assistance funds provided by the department and received by the guardian for the purpose of an extended guardianship shall be used for the benefit of the young adult.

Upon the child's 19th birthday, regardless of the existence of an agreement to extend the guardianship until the child's 21st birthday, the guardian shall no longer have the legal authority to make decisions on behalf of the child and shall have no more authority over the person or property of the child than a biological or adoptive parent would have over his or her child, absent consent from the child.

Kinship Guardianship Assistance

Citation: Rev. Stat. § 43-284.02; Admin. Code Tit. 390, §§ 6-005.02

The department may make payments as needed on behalf of a child who has been a ward of the department after the appointment of a guardian for the child. Such payments to the guardian may include maintenance costs, medical and surgical expenses, and other costs incidental to the care of the child. The child under guardianship shall be a child for whom the guardianship would not be possible without the financial aid provided under this section.

In regulation: The subsidized guardianship program provides continued financial assistance to a child after a legal guardian has been appointed and department's custody has been terminated. State funds may be used for subsidized guardianship payments on behalf of a child who was a ward of the department, as provided in § 43-284.02.

A child is eligible for the subsidized guardianship program if he or she is a ward of the department and meets the criteria for subsidized guardianship as follows:

• The child has a documented behavioral, emotional, physical, or mental disability.
• The child is a member of a sibling group of three or more to be placed together.
• The child has a strong attachment to the potential guardian.
• The child is age 12 or older or, if under age 12, is part of a sibling group, or is attached to the proposed guardian and cannot be freed for adoption.

A child's eligibility ends upon the child's 19th birthday, when the child becomes self-supporting, or when the guardianship order is terminated.

Links to Agency Policies

Nebraska Department of Health and Human Services, Child and Family Services Rules and Regulations, Title 390, Chapter 6, Permanency for Children (PDF - 462 KB)