Kinship Guardianship as a Permanency Option - Tennessee

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Definitions

Citation: Ann. Code §§ 34-1-101; 37-1-102; Pol. & Proc. Man. § 15.15

The term 'guardian' or 'coguardian' means a person or persons appointed by the court to provide partial or full supervision, protection, and assistance of the person or property, or both, of a minor.

A 'custodian' is a person, other than a parent or legal guardian, who stands in loco parentis to the child or a person to whom temporary legal custody of the child has been given by order of a court.

The term 'custody' means control of the actual physical care of the child and includes the right and responsibility to provide for the physical, mental, moral, and emotional well-being of the child. 'Custody,' as herein defined, relates to those rights and responsibilities as exercised either by the parents or by a person or organization granted custody by a court of competent jurisdiction. 'Custody' shall not be construed as the termination of parental rights and does not exist by virtue of mere physical possession of the child.

In policy: For purposes of the subsidized guardianship program, the legal guardian of a child is a person to whom the child is related to by blood, marriage, or adoption or with whom the child had a significant relationship that pre-existed placement, such as a godparent, friend, neighbor, church member, or teacher.

Purpose of Guardianship

Citation: Ann. Code § 37-1-802

The court may issue a permanent guardianship order only if the court finds that:

  • The child has been previously adjudicated dependent and neglected.
  • The child has been living with the proposed permanent guardian for at least 6 months.
  • The permanent guardianship is in the child's best interests.
  • Reunification of the parent and child is not in the child's best interests.

A Guardian's Rights and Responsibilities

Citation: Ann. Code § 37-1-804

The permanent guardian shall maintain physical custody of the child and shall have the following rights and responsibilities concerning the child:

  • To protect, nurture, discipline, and educate the child
  • To provide food, clothing, shelter, and education, as required by law, and necessary health care, including medical, dental, and mental health, for the child
  • To consent to health care, without liability by reason of the consent for injury to the child resulting from the negligence or acts of third persons, unless a parent would have been liable in the circumstances
  • To authorize a release of health care and educational information
  • To authorize a release of information when consent of a parent is required by law, regulation, or policy
  • To consent to social and school activities of the child
  • To consent to military enlistment or marriage
  • To obtain representation for the child in legal actions
  • To determine the nature and extent of the child's contact with other persons
  • To make decisions regarding travel
  • To manage the child's income and assets

The permanent guardian is not liable to third persons by reason of the relationship for acts of the child.

Qualifying the Guardian

Citation: Ann. Code § 37-1-802

The court may consider any adult, including a relative, foster parent, or another adult with a significant relationship with the child as a permanent guardian. If the child is in the custody of the Department of Children's Services, the court shall seek the department's opinion on both the proposed permanent guardianship and the proposed permanent guardian. An agency or institution may not be a permanent guardian.

The court may issue a permanent guardianship order only if the court finds that the proposed permanent guardian:

  • Is emotionally, mentally, physically, and financially suitable to become the permanent guardian
  • Is suitable and able to provide a safe and permanent home for the child
  • 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, including an understanding of any potential resulting loss of State or Federal benefits or other assistance
  • Will comply with all terms of any court order to provide the child's parent with visitation, contact, or information

Procedures for Establishing Guardianship

Citation: Ann. Code §§ 37-1-801; 37-1-802

The juvenile courts of Tennessee are empowered to appoint an individual as permanent guardian, provided that the individual qualifies under the provisions of this part. The court may establish a permanent guardianship at a permanency-planning hearing or at any other hearing in which a permanent legal disposition of the child can be made, including a child protection proceeding or a delinquency proceeding.

If the child is age 12 or older, the court shall consider the reasonable preference of the child. The court may hear the preference of a younger child. The preferences of older children should normally be given greater weight than those of younger children.

The parent may voluntarily consent to the permanent guardianship and shall demonstrate an understanding of the implications and obligations of such consent prior to the court entering an order establishing a permanent guardianship in accordance with the provisions of this part.

In determining whether it is in the child's best interests that a permanent guardian be designated, in addition to any other evidence the court finds relevant, the court shall consider each of the following factors:

  • The child's need for continuity of care and caregivers and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages
  • The physical, mental, and emotional health of all individuals involved to the degree that each affects the welfare of the child, the decisive consideration being the physical, mental, and emotional needs of the child
  • The quality of the interaction and interrelationship of the child with the child's parent, siblings, relatives, and caregivers, including the proposed permanent guardian

Contents of a Guardianship Order

Citation: Ann. Code §§ 37-1-803; 37-1-805

Entry of a permanent guardianship order does not terminate the parent and child relationship, including:

  • The right of the child to inherit from the child's parents
  • The parents' right to visit or contact the child, as defined by the court
  • The parents' right to consent to the child's adoption
  • The parents' responsibility to provide financial, medical, and other support for the child

The permanent guardianship order shall specify the frequency and nature of visitation or contact or the sharing of information with parents and the child. The court shall issue an order regarding visitation, contact, and the sharing of information based on the best interests of the child. The order may restrict or prohibit visitation, contact, and the sharing of information. The order may incorporate an agreement reached among the parties.

The court shall retain jurisdiction to enforce, modify, or terminate a permanent guardianship order until the child reaches age 18, or age 19 for children adjudicated delinquent.

Modification/Revocation of Guardianship

Citation: Ann. Code § 37-1-806

A modification or termination of the permanent guardianship may be requested by the permanent guardian, by the child if the child is age 16 or older, by the parent, or by the State. When the permanent guardianship is terminated by a court order, the court shall make further provisions for the permanent guardianship or custody of the child, based upon the best interests of the child.

An order for modification or termination of the permanent guardianship shall be based on a finding, by a preponderance of evidence, that there has been a substantial change in material circumstances. In making this determination, the court may consider whether the child's parent is currently able and willing to care for the child or that the permanent guardian is unable to continue to care for the child.

In determining whether it is in the child's best interests that the permanent guardianship be modified or terminated, the court shall consider the following factors:

  • The child's need for continuity of care and caregivers
  • The physical, mental, and emotional health of all individuals involved, especially the physical, mental, and emotional needs of the child
  • The quality of the interaction and interrelationship of the child with the child's parent, siblings, relatives, and caregivers, including the proposed permanent guardian

In the event that it is necessary to appoint a successor permanent guardian, appropriate parties may be considered by the court, with the parent having no greater priority than a third party. The court may also consider, where appropriate, return of custody to the parent.

Kinship Guardianship Assistance

Citation: Pol. & Proc. Man. § 15.15

For a child to be eligible for the subsidized permanent guardianship (SPG) program, the child must meet all of the following criteria:

  • The child has been removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare and best interests of the child.
  • The child has resided with a licensed or approved kinship foster parent for at least 6 consecutive months.
  • The child should have a goal of permanent guardianship where reunification and adoption have been deemed inappropriate.
  • The child demonstrates a strong attachment to the prospective relative guardian and the prospective relative guardian demonstrates a strong commitment to caring for the child on a permanent basis.
  • A child who is age 12 or older must be consulted regarding the SPG arrangement.

Note: A 'strong attachment' is defined as a relationship that existed between the potential guardian and the child or family prior to placement.

Children are eligible for the SPG program until they reach age 18. Children may receive guardianship assistance payments until they are age 21, if specific conditions are met.

If a child is eligible for title IV-E-funded guardianship assistance but has a sibling who is not eligible, the child and any of the child's siblings may be placed in the same relative guardianship arrangement if the department and the relative agree that the arrangement is appropriate for the sibling. Title IV-E-funded relative guardianship assistance may be paid on behalf of each sibling.

Links to Agency Policies

Tennessee Department of Children's Services: