Kinship Guardianship as a Permanency Option - North Carolina
This issue is not addressed in the statutes and regulations reviewed.
Purpose of Guardianship
Citation: Pol. Man. § 1201(E)(3), App. B
When reunification efforts are determined to be contrary to the health, safety, or best interests of a child who is in the legal custody or placement authority of the county Department of Social Services, the county shall assess relative or kinship placements as a permanency option, including the child's birth father and paternal relatives. If the family is willing to provide a permanent home for the child but is not willing to adopt, then guardianship and custody should be offered to the family as alternatives.
Guardianship shall be considered only when reunification and adoption are ruled out as permanency options.
When placement with a relative for the purposes of foster care is made, consideration should be made as to the potential for that placement to become permanent through adoption or guardianship if reunification with the parent is not possible.
Guardianship will be considered when:
- The permanent plan for the child is neither reunification nor adoption.
- The child has been in agency custody for at least a year.
- The child has lived with this provider for at least 6 months.
- It has been determined that continued placement with this caregiver would be in the best interests of the child and meets the child's need for permanency and safety.
- The caregiver is willing to assume guardianship of the person of the child.
A Guardian's Rights and Responsibilities
Citation: Gen. Stat. § 7B-600
The guardian shall operate under the supervision of the court with or without bond and shall file only such reports as the court shall require. The guardian shall have the care, custody, and control of the child or may arrange a suitable placement for the child and may represent the child in legal actions before any court. The guardian may consent to certain actions on the part of the child in place of the parent, including marriage, enlisting in the Armed Forces of the United States, and enrollment in school. The guardian also may consent to any necessary remedial, psychological, medical, or surgical treatment for the child.
Qualifying the Guardian
Citation: Gen. Stat. § 7B-600; Pol. Man. § 1201(E)
Before conducting a review hearing, the court may order the county department to conduct an investigation and file a written report of the investigation regarding the suitability of the guardian.
In policy: The agency shall assess the suitability of the home for guardianship placement and shall recommend to the court based on their findings. Questions to consider when determining the recommendation for legal guardianship are as follows:
- What preplacement relationship existed between the child and the potential guardian and does the child have any attachment to them?
- Have the potential guardians been carefully evaluated? Is there a written assessment or home study?
- Have the potential guardians been included in the shared decision-making process?
- Have both maternal and paternal relatives been considered?
- Is placement with relatives or kin a way to protect the child's roots in the community?
- Will placement with a particular relative mean that the child must leave the community?
- Have sibling attachments been considered? Will placement with siblings be positive for this child?
- Is this potential guardian related to all the siblings and are they willing to take all the siblings whether related or not?
- Will this placement support the child's ethnic and cultural identity?
- Is the potential guardian willing to provide a home for this child through the child's minority?
- Are there the same issues in the extended family that existed with the parents?
- What will be the on-going relationship with the child's parents? Will there be lifelong conflicts with the child's parents or is there a possibility of an unofficial return to the child's parents?
Procedures for Establishing Guardianship
Citation: Gen. Stat. § 7B-600; Pol. Man. § 1201(E)(3)
In any case in which no parent appears in a hearing with the child or when the court finds it would be in the best interests of the child, the court may appoint a guardian of the person for the child. In any case in which the court has determined that the appointment of a relative or other suitable person as guardian of the person for a child is the permanent plan for the child and appoints a guardian under this section, the guardian becomes a party to the proceeding.
If the court appoints an individual guardian of the person pursuant to this section, the court shall verify that the person being appointed as guardian of the child understands the legal significance of the appointment and will have adequate resources to care appropriately for the child.
In policy: North Carolina law requires the judge who orders a child's placement or continued placement to consider whether an appropriate placement with a relative is available. If the judge finds that a relative is willing and able to provide proper care and supervision in a safe home, the judge must order placement of the child with the relative.
Legal guardianship can be given to a relative or any other person deemed suitable by the court. Persons other than relatives to consider include foster parents or adults who have a kinship bond with the child, even if they are not related by blood.
Contents of a Guardianship Order
Citation: Pol. Man. § 1201(E)(3)
Juvenile court guardianship, as described in § 7B-600, assigns legal authority for the guardian to act on behalf of the child without further department involvement but with continued supervision of the court. Guardianship received through the juvenile court does not confer authority over the disposition of a child's estate or management of the child's income.
Modification/Revocation of Guardianship
Citation: Gen. Stat. §§ 7B-600; 7B-1000; Pol. Man. § 1201(E)(3)
The authority of the guardian shall continue until the guardianship is terminated by court order, the child is emancipated, or the child reaches the age of majority.
The court may terminate the guardianship only if:
- The court finds that the relationship between the guardian and the child is no longer in the child's best interests.
- The guardian is unfit.
- The guardian has neglected a guardian's duties.
- The guardian is unwilling or unable to continue assuming a guardian's duties.
Upon petition, and after notice, the court may conduct a review hearing to determine whether the order of the court is in the best interests of the child. The court may modify or vacate the order in light of changes in circumstances or the needs of the child. Notwithstanding the provision of this subsection, if a guardian of the person has been appointed for the child, and the court also has made findings that guardianship is the permanent plan for the child, the court shall proceed in accordance with § 7B-600(b).
In any case in which the court finds the child to be abused, neglected, or dependent, the jurisdiction of the court to modify any order or disposition made in the case shall continue during the minority of the child, until terminated by order of the court, or until the child is otherwise emancipated.
In policy: A guardian may resign from the position of guardian, but his or her authority cannot be removed unless he or she is determined by the court to be unfit.
Kinship Guardianship Assistance
Citation: Pol. Man. § 1201(E)(3)
Persons assuming legal guardianship of children in the custody of a county child welfare agency are not eligible for State foster care board payments. They are eligible for child support paid by the parents. The child also may be eligible for Medicaid, since the guardian's income is not considered. Countable income includes Social Security benefits, child support payments, and, if applicable, guardianship subsidy.
If a person accepts guardianship of a child who was in foster care and later adopts that child, he or she will be able to receive adoption assistance payments on behalf of the child until the child is age 18.
Links to Agency Policies
North Carolina Department of Health and Human Services Policy Manual, § 1201(E), Permanent Placement Options