Kinship Guardianship as a Permanency Option - North Dakota

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Definitions

Citation: Cent. Code § 27-20-02

'Fit and willing relative or other appropriate individual' means a relative or other individual who has been determined, after consideration of an assessment that includes a criminal history record investigation, to be a qualified person and who consents in writing to act as a legal guardian.

The term 'relative' means:

  • The child's grandparent, great-grandparent, sibling, half-sibling, aunt, great-aunt, uncle, great-uncle, nephew, niece, or first cousin
  • An individual with a relationship to the child, derived through a current or former spouse of the child's parent, similar to a relationship described above
  • An individual recognized in the child's community as having a relationship with the child similar to a relationship described above
  • The child's stepparent

Purpose of Guardianship

Citation: Cent. Code § 27-20-48.1: Pol. Man. § 623-10-01-65

The court may establish a guardianship as a dispositional alternative if a child has been adjudicated as deprived, unruly, or delinquent.

In policy: Guardianship is considered only after other options such as return home, termination of parental rights, and adoption are ruled out.

A Guardian's Rights and Responsibilities

Citation: Cent. Code § 27-20-48.2

A guardian of a child has the powers and responsibilities of a legal custodian if there is a parent with remaining parental rights. If there is no parent with remaining parental rights, the guardian has the rights of a legal custodian and the authority to consent to the child's adoption, marriage, enlistment in the armed forces of the United States, and surgical and other medical treatment. A guardian is not liable to third persons by reason of the parental relationship for acts of the child. In particular, and without qualifying the foregoing, a guardian has the following powers and duties:

  • The guardian must take reasonable care of the child's personal effects and commence protective proceedings if necessary to protect other property of the child.
  • The guardian is empowered to facilitate the child's educational, social, or other activities and to authorize medical or other professional care, treatment, or advice.
  • A guardian shall file an annual report with the court informing the court of the status or condition of the child and provide a copy of the report to the child. The report must include changes that have occurred since the previous reporting period and an accounting of the child's estate.

Qualifying the Guardian

Citation: Cent. Code § 30.1-27-06; Pol. Man. § 623-10-01-30

The court may appoint as guardian any person whose appointment would be in the best interests of the minor. The court shall appoint a person nominated by the minor, if the minor is age 14 or older, unless the court finds the appointment contrary to the best interests of the minor.

In policy: Under § 27-20-47(1)(b), the court may appoint 'a fit and willing relative or other appropriate individual' as the child's legal guardian. 'Fit and willing relative or other appropriate individual' is defined as a relative or other individual who has been determined, after consideration of an assessment that includes a criminal history record investigation, to be a qualified person and who consents in writing to act as a legal guardian.

Procedures for Establishing Guardianship

Citation: Cent. Code §§ 30.1-27-01; 30.1-27-04; 30.1-27-07

A person becomes a guardian of a minor upon appointment by the court. The guardianship status continues until terminated, without regard to the location from time to time of the guardian and minor ward. The court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or prior court order.

Notice of the time and place of the hearing of a petition for the appointment of a guardian of a minor is to be given to:

  • The minor, if the minor is age 14 or older
  • The person who has had the principal care and custody of the minor during the 60 days preceding the date of the petition
  • Any living parent of the minor

Upon hearing, if the court finds that a qualified person seeks appointment, the venue is proper, the required notices have been given, and the welfare and best interests of the minor will be served by the requested appointment, it shall make the appointment. In other cases, the court may dismiss the proceedings or make any other disposition of the matter that will best serve the interests of the minor. If necessary, the court may appoint a temporary guardian, with the status of an ordinary guardian of a minor, but the authority of a temporary guardian shall not last longer than 6 months.

If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is age 14 or older.

Contents of a Guardianship Order

Citation: Cent. Code § 30.1-27-08; Pol. Man. §§ 623-10-20-10; 623-10-20-15

By accepting a testamentary or court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Letters of guardianship must indicate whether the guardian was appointed by will or by court order.

In policy: Generally speaking, the guardian has the rights and responsibilities that a parent would ordinarily have. It may be helpful to think of parental rights and responsibilities as a bundle: In some cases, the guardian will have the entire bundle; in other cases, the court's order creating the guardianship may divide the bundle between the guardian and a parent or others, such as a grandparent. The division of the bundle of rights and responsibilities will depend on the facts of a given case, with the court being guided by the welfare and best interests of the minor. An order appointing a legal guardianship terminates any authority of a parent that is granted to the legal guardian under that order.

Parental child support responsibility continues with respect to a minor child who is subject to a guardianship order. If a child support order does not exist at the time the guardianship is granted, an order may subsequently be established to ensure that parents fulfill their parental obligations related to support of the child.

The child support obligation does not always end with termination of parental rights. Legal guardians, wards, and parents will need to refer to the order establishing the guardianship and to the order terminating parental rights, if any, to determine the status of a particular right or responsibility.

Modification/Revocation of Guardianship

Citation: Cent. Code §§ 27-20-48.3; 27-20-48.4

A guardian's authority and responsibility terminates upon the death, resignation, or removal of the guardian, or upon the child's death, adoption, marriage, or attainment of majority. Termination does not affect the guardian's liability for prior acts nor the guardian's obligation to account for funds and assets of the child.

A guardian may petition for permission to resign. A petition for permission to resign may include a request for the appointment of a successor guardian. Resignation of a guardian does not terminate the guardianship until it has been approved by the court.

The director, the child who is age 14 or older, or any party to the proceeding in which the child's status was adjudicated may petition for the removal of a guardian on the grounds that the removal would be in the best interests of the child. A petition for removal may include a request for the appointment of a successor guardian.

After notice and hearing on a petition for removal or for permission to resign, the court may terminate the guardianship and make any further order that may be appropriate. If, at any time in the proceeding, the court determines that the interests of the child are, or may be, inadequately represented, it may appoint an attorney to represent the child, giving consideration to the preference of the child if the child is age 14 or older.

Kinship Guardianship Assistance

Citation: Pol. Man. §§ 623-10-01-25; 623-10-05-01; 623-10-05-05

It is possible to create a legal guardianship in which the ward does not reside with the guardian but lives in some other setting. This is not the intent of the Department of Human Services' subsidized guardianship program. To be eligible for the subsidized guardianship, the guardian must agree that the ward's permanent residence will be with the guardian. In certain instances, the ward may be briefly out of the home without affecting the subsidy, such as brief medical treatment.

Persons eligible for subsidy include the following:

  • Foster youth age 12 and older for whom reunification and adoption have been ruled out as the permanency plan
  • Youth who are legally free for adoption and do not wish to or cannot be adopted
  • Youth in temporary custody whose parents are incapacitated or unwilling to have anything to do with planning for the child and whose parental rights will not be terminated.

Siblings also will be included if one member of the sibling group is age 12 or older. Eligibility is limited to children who have been in the State foster care system for at least 6 months and for whom the State has responsibility for maintenance payments.

Priority is given to youth age 16 and older. Sibling groups also will be given priority status if one member of the group is at least age 16.

In order to receive subsidy payments, the guardian must be at least age 21 and have received contingent approval for a subsidy for the child's needs prior to the guardianship appointment. Guardianship requires a court assessment and a background check.

Links to Agency Policies

North Dakota Department of Human Services, Subsidized Guardianship Policy Manual