Kinship Guardianship as a Permanency Option - Oklahoma

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Definitions

Citation: Ann. Stat. Tit. 10A, § 1-1-105

The term 'kinship care' means full-time care of a child by a kinship relation. 'Kinship guardianship' means a permanent guardianship as defined in this section. 'Kinship relation' or 'kinship relationship' means relatives, stepparents, or other responsible adults who have a bond or tie with a child and/or to whom has been ascribed a family relationship role with the child's parents or the child. In cases in which the Indian Child Welfare Act applies, the definitions contained in 25 U.S.C., § 1903 shall control.

The term 'permanent custody' means the court-ordered custody of an adjudicated deprived child when a parent-child relationship no longer exists due to termination of parental rights or due to the death of a parent or parents. 'Permanent guardianship' means a judicially created relationship between a child, a kinship relation of the child, or other adult established pursuant to the provisions of § 1-4-709 of this title.

The term 'relative' means a grandparent, great-grandparent, brother or sister of whole or half blood, aunt, uncle, or any other person related to the child.

Purpose of Guardianship

Citation: Ann. Code Tit. 10A, § 1-4-709

The court may establish a permanent guardianship between a child and a relative or other adult if the guardianship is in the child's best interests and all of the following conditions are substantially satisfied:

  • The child has been adjudicated to be a deprived child.
  • The parent has:
    • Consented to the guardianship
    • Had his or her parental rights terminated
    • Failed to substantially correct the conditions that led to the adjudication of the child
    • Been adjudicated as incompetent or incapacitated by a court
    • Abandoned the child
    • Not been identified or located despite reasonably diligent efforts to ascertain his or her whereabouts
    • Died
  • The child consents to the guardianship if the court finds the child to be of sufficient intelligence, understanding, and experience to provide consent.
  • Termination of the parent's rights is either not legally possible or not in the best interests of the child or adoption is not the permanency plan for the child.
  • The child and the prospective guardian do not require protective supervision or preventive services to ensure the stability of the guardianship.
  • The prospective guardian is committed to providing for the child until the child reaches the age of majority and to preparing the child for adulthood and independence.
  • The prospective guardian agrees that he or she will not return the child to the care of the person from whom the child was removed or allow visitation without the approval of the court.
  • The child has been residing or placed with the proposed guardian for at least the 6 preceding months, or the permanent guardian is a relative with whom the child has a relationship.

In proceedings for permanent guardianship, the court shall give primary consideration to the physical and behavioral health needs of the child.

A Guardian's Rights and Responsibilities

Citation: Ann. Code Tit. 10A, § 1-4-709

Unless otherwise set forth in the final order of permanent guardianship, a permanent guardian is vested with all of the rights and responsibilities as set forth in title 30 of the Oklahoma Statutes relating to the powers and duties of a guardian of a minor, other than those rights and responsibilities retained by the child's parent, if any, that are set forth in the decree of permanent guardianship.

Qualifying the Guardian

Citation: Ann. Code Tit. 10A, §§ 1-4-709(C); 1-4-710

A permanent guardianship shall not be permitted if the prospective guardian would be denied placement as a prospective foster or adoptive parent or if the prospective guardian is subject to the Oklahoma Sex Offenders Registration Act or living with an individual subject to the Oklahoma Sex Offenders Registration Act.

When the child is in the custody of the Department of Human Services, the department shall complete a home study of the proposed guardian's home and provide a report to the court regarding the suitability of the proposed guardian and whether guardianship is in the best interests of the child. The department shall develop rules in furtherance of the duties imposed by this subsection. However, the prospective guardian shall be responsible for obtaining the home study if the child is not in the custody of the department.

The findings of the home study shall be set forth in a written report provided to the court, the district attorney, the child, and the guardian ad litem, if any, before the hearing. The court may require additional information as necessary to make an appropriate decision regarding the permanent guardianship.

Before issuing an order of permanent guardianship, the court shall find, by clear and convincing evidence, that the proposed permanent guardian:

  • Is emotionally, mentally, physically, and financially suitable to become the permanent guardian
  • Has expressly committed to remain the permanent guardian for the duration of the child's minority
  • Has expressly demonstrated a clear understanding of the financial implications of becoming a permanent guardian

Procedures for Establishing Guardianship

Citation: Ann. Code Tit. 10A, § 1-4-710

A motion for permanent guardianship shall be filed by the district attorney or child's attorney. The motion shall include the following:

  • The name and date of birth of the child
  • The facts and circumstances supporting the grounds for permanent guardianship
  • The name and address of the prospective guardian and a statement that the prospective guardian agrees to accept the duties and responsibilities of guardianship
  • The relationship of the child to the prospective guardian
  • That the prospective guardian understands that the guardianship is intended to be permanent and that the person will be responsible as the guardian until the child reaches the age of majority
  • Whether the child has resided with the prospective guardian prior to the motion being filed, and, if so, the length of time and the circumstances surrounding the child's stay
  • Whether there exists a loving, emotional tie between the child and the prospective guardian

Notice of the hearing shall be served on the parties, the department, and the guardian ad litem of the child, if any. Notice shall also be sent to the Tribe of an Indian child. Notice shall not be required to the parent whose rights have been terminated.

Before issuing an order of permanent guardianship, the court shall find, by clear and convincing evidence, all of the following:

  • The parent is unfit or unavailable to provide adequate care for the child.
  • Termination of the rights of the parent is either not legally possible or not in the best interests of the child, or adoption is not the permanency plan for the child.
  • The child has resided with the permanent guardian for at least 6 months, or the permanent guardian is a relative with whom the child has a relationship.
  • A permanent guardianship is in the best interests of the child.

Contents of a Guardianship Order

Citation: Ann. Code Tit. 10A, § 1-4-710

A decree of permanent guardianship divests the parents of legal custody or guardianship of the child, but is not a termination of parental rights.

Upon finding that grounds exist for a permanent guardianship, the court may also order visitation with the parent, siblings, or other relatives of the child if such contact would be in the child's best interests, as well as any other provision necessary to provide for the child's continuing safety and well-being. The court shall order the parents to contribute to the support of the child pursuant to child-support guidelines as provided for in title 43, §§ 118 and 119.

An order appointing a permanent guardian shall:

  • Require that the placement be reviewed within 1 year after transfer and may require the permanent guardian to submit any records or reports the court deems necessary for purposes of that review
  • Divest the department of legal custody and supervision of the child and release the department from any further responsibility for the custody or supervision of the child
  • Not require periodic reviews by the court thereafter if the parties agree with the assent of the court that the reviews are not necessary to serve the best interests of the child, unless periodic reviews are otherwise required by the court

Unless periodic reviews are required, the court may close the case, provided the order of permanent guardianship shall remain in full force and effect, subject to the provisions of this Code.

Modification/Revocation of Guardianship

Citation: Ann. Code Tit. 10A, § 1-4-711

A motion for modification or termination of a permanent guardianship may be filed when there has been a substantial change of material circumstances including, but not limited to, the following:

  • The parent of the child is presently able and willing to properly care for the child.
  • The permanent guardian of the child is unable to properly care for the child.
  • The child has been abused or neglected while in the care of the permanent guardian.
  • The permanent guardian has died.

The court may modify or terminate the order granting permanent guardianship upon a finding by clear and convincing evidence that there has been a substantial change in material circumstances and that a modification or termination of the permanent guardianship is in the child's best interests.

The court shall appoint a guardian ad litem for the child in any proceeding for modification or termination of a permanent guardianship.

When the termination of a permanent guardianship is granted for reason of the guardian's abuse, neglect, death, or inability to care for the child, the court shall order the child returned to the legal custody of the department pending further hearing. The department shall develop a new permanency plan on behalf of the child, which shall be presented to the court within 30 days of the date that the permanent guardianship is terminated.

Unless the parental rights of the child's parent or parents have been terminated, they shall be notified that the legal guardianship has been modified or terminated and shall be entitled to participate in the new permanency-planning hearing where the court shall order a new permanency plan appropriate to meet the needs of the child.

Kinship Guardianship Assistance

Citation: Admin. Code § 340:75-6-31.4

Guardianship assistance may be funded through the Temporary Assistance for Needy Families (TANF) Supported Permanency Program, the Title IV-E Subsidized Guardianship Program, or the State.

TANF Supported Permanency Program assistance includes the following:

  • A limited monetary reimbursement for legal fees and costs
  • A monthly payment standard for the child
  • A Medicaid card for the child's medical care
  • An assigned Adult and Family Services worker who provides referrals for services, when needed

The Title IV-E Subsidized Guardianship agreement outlines the assistance provided to the relative that includes the following:

  • A limited monetary reimbursement for legal fees and costs incurred in the transfer of legal responsibility of the child to the relative
  • A monthly payment standard for the child
  • The manner in which the payment may be adjusted periodically, in consultation with the relative guardian, based on the circumstances of the relative guardian and the child's needs
  • A Medicaid card for the child
  • The additional services and assistance for which the child and relative guardian are eligible under the agreement
  • The procedure by which the relative guardian applies for additional services
  • Assurance the agreement will remain in effect if the relative guardian moves to another State

A guardianship may be established with State-funded assistance when the child is not eligible for the TANF Supported Permanency Program or Title IV-E Subsidized Guardianship and the deputy director for programs, for good cause, approves State-funded payments to the guardian for the benefit of the child. The State-funded benefit is a monthly payment standard for the child.

Links to Agency Policies

Oklahoma Department of Human Services: