Kinship Guardianship as a Permanency Option - Texas

Date: July 2018

Definitions

Citation: Fam. Code § 264.851; Admin. Code Tit. 40, § 700.1027

'Kinship provider' means a relative of a foster child, or another adult with a longstanding and significant relationship with a foster child before the child was placed with the person by the Department of Family and Protective Services, and with whom the child resides for at least 6 consecutive months after the person becomes licensed by the department or verified by a licensed child-placing agency or the department to provide foster care.

The term 'relative' means a person related to a foster child by consanguinity or affinity.

In regulation: A 'permanent kinship conservator' is a relative or other individual with a prior longstanding and significant relationship to a child who was in the temporary or permanent managing conservatorship of the department immediately prior to permanent managing conservatorship being granted to that person. The term does not include a parent of the child or other person from whom the child was legally removed by the department.

A 'prospective permanent kinship conservator' is a relative or other individual with a prior longstanding and significant relationship to a child who was in the temporary or permanent managing conservatorship of the department who has demonstrated a strong commitment to caring permanently for the child and who applies for or has entered into a permanency care assistance agreement with the department but has not yet been granted permanent managing conservatorship of the child.

Purpose of Guardianship

Citation: Fam. Code § 264.752

The department shall develop a program to promote continuity and stability for children for whom the department is appointed managing conservator by placing those children with relative or other designated caregivers.

A Guardian's Rights and Responsibilities

Citation: Fam. Code § 153.371

Unless limited by court order or other provisions of this chapter, a nonparent appointed as a managing conservator of the child has the following rights and duties:

  • The right to have physical possession and to direct the moral and religious training of the child
  • The duty of care, control, protection, and reasonable discipline of the child
  • The duty to provide the child with clothing, food, shelter, and education and medical, psychological, and dental care
  • The right to consent for the child to medical, psychiatric, psychological, dental, and surgical treatment and to have access to the child's medical records
  • The right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child
  • The right to the services and earnings of the child
  • The right to consent to marriage and to enlistment in the armed forces of the United States
  • The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child
  • The right to act as an agent of the child in relation to the child's estate if the child's action is required by a State, the United States, or a foreign government, except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child
  • The right to designate the primary residence of the child and to make decisions regarding the child's education
  • If the parent-child relationship has been terminated with respect to the parents or only living parent, or if there is no living parent, the right to consent to the adoption of the child and to make any other decision concerning the child that a parent could make

Qualifying the Guardian

Citation: Fam. Code §§ 264.753; 264.754; 264.7541; 264.8521

The department shall expedite the completion of the background and criminal history check, the home study, and any other administrative procedure to ensure that the child is placed with a qualified relative or caregiver as soon as possible after the date the caregiver is identified.

Before placing a child with a proposed relative or other designated caregiver, the department must conduct an assessment to determine whether the proposed placement is in the child's best interests.

Except as provided below, before placing a child with a proposed relative or other designated caregiver, the department must:

  • Arrange a visit between the child and the proposed caregiver
  • Provide the proposed caregiver with a form containing information, to the extent it is available, about the child that would enhance continuity of care for the child, including:
    • The child's school information and educational needs
    • The child's medical, dental, and mental health care information
    • The child's social and family information
    • Any other information about the child the department determines will assist the proposed caregiver in meeting the child's needs

The department may waive the requirements above if the proposed relative or other designated caregiver has a long-standing or significant relationship with the child and has provided care for the child at any time during the 12 months preceding the date of the proposed placement.

At the time a person applies to become verified to provide foster care in order to qualify for the permanency care assistance program, the department shall:

  • Notify the applicant that a background check, including a criminal history record check, will be conducted on the individual
  • Inform the applicant about criminal convictions that preclude an individual from becoming a verified agency foster home and also may be considered in evaluating the individual's application

Procedures for Establishing Guardianship

Citation: Fam. Code § 264.751

A designated caregiver is an individual who has a longstanding and significant relationship with a child for whom the department has been appointed managing conservator and who:

  • Is appointed to provide substitute care for the child but is not verified by a licensed child-placing agency to operate an agency foster home
  • Is subsequently appointed permanent managing conservator of the child after providing the care described above

A relative caregiver is a relative who:

  • Provides substitute care for a child for whom the department has been appointed managing conservator but who is not verified by a licensed child-placing agency to operate an agency foster home
  • Is subsequently appointed permanent managing conservator of the child after providing the care described above

Contents of a Guardianship Order

This issue is not addressed in the statutes and regulations reviewed.

Modification/Revocation of Guardianship

Citation: Fam. Code § 156.101

The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child, if modification would be in the best interests of the child and:

  • The circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed.
  • The child is at least age 12 and has expressed to the court in chambers the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child.
  • The conservator, who has the exclusive right to designate the primary residence of the child, has voluntarily relinquished the primary care and possession of the child to another person for at least 6 months.

The above subsection does not apply to a conservator who has the exclusive right to designate the primary residence of the child and who has temporarily relinquished the primary care and possession of the child to another person during the conservator's military deployment, military mobilization, or temporary military duty.

Kinship Guardianship Assistance

Citation: Fam. Code §§ 264.852; 264.853; 264.854; 264.855

The department may enter into a permanency care assistance agreement with a kinship provider who is the prospective managing conservator of a foster child only if the kinship provider meets the eligibility criteria under Federal and State law and department rule. The agreement may provide for reimbursement of the nonrecurring expenses a kinship provider incurs in obtaining permanent managing conservatorship of a foster child, including attorney's fees and court costs.

The executive commissioner shall adopt rules necessary to implement the permanency care assistance program. The rules must do both of the following:

  • Establish eligibility requirements to receive permanency care assistance benefits
  • Ensure that the program conforms to the requirements for Federal assistance, as required by the Fostering Connections to Success and Increasing Adoptions Act of 2008

The executive commissioner shall set the maximum monthly amount of assistance under a permanency care assistance agreement in an amount that does not exceed the monthly foster care maintenance payment the department would pay to a foster care provider caring for the child.

If the department first entered into a permanency care assistance agreement with a kinship provider after the child's 16th birthday, the department may continue to provide permanency care assistance payments until the last day of the month of the child's 21st birthday, provided the child is:

  • Regularly attending high school or enrolled in a program leading toward a high school diploma or high school equivalency certificate
  • Regularly attending an institution of higher education or a postsecondary vocational or technical program
  • Participating in a program or activity that promotes or removes barriers to employment
  • Employed for at least 80 hours a month
  • Incapable of any of the activities described above due to a documented medical condition

Links to Agency Policies

Texas Department of Family and Protective Services:

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