Kinship Guardianship as a Permanency Option - Utah

Date:

Definitions

Citation: Ann. Code § 75-1-201

The term 'guardian' means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, or by written instrument, but excludes one who is merely a guardian ad litem.

Purpose of Guardianship

Citation: Admin. Code R512-308-1; R512-308-3

Guardianship services and placements provide a permanent, safe living arrangement for a child in the court-ordered custody of the Division of Child and Family Services or the Department of Human Services when it is not appropriate for the child to return home, adoption has been ruled out as a permanency goal, and continuing agency custody is not in the child's best interests.

General qualifying factors that must be met for both relative and nonrelative guardianship include the following:

  • The child cannot safely return home. This requirement is met if the court determines that reunification with the child's parents is not possible or appropriate and that adoption is not an appropriate plan for the child.
  • The parent and child have a significant bond, but the parent is unable to provide ongoing care for the child, such as an emotional, mental, or physical disability, and the child's current caregiver has committed to raising the child to the age of majority and to facilitate visitation with the parent.
  • The prospective guardian must:
    • Be able to maintain a stable relationship with the child
    • Have a strong commitment to providing a safe and stable home for the child on a long-term basis
    • Have a means of financial support and connections to community resources
    • Be able to care for the child without division supervision
  • The child has no ongoing care or financial needs beyond basic maintenance and does not require the services of a case manager.
  • There are compelling reasons why the child cannot be adopted, such as when the child's Tribe has exclusive jurisdiction or the Tribe has chosen to intervene in the adoption proceedings.

Under the Indian Child Welfare Act (25 USC § 1911), a Tribe has the right to determine the child's permanency. For this reason, the Tribe has the authority to approve guardianship with the current caregiver.

A Guardian's Rights and Responsibilities

Citation: Ann. Code § 78A-6-105

Guardianship of the person includes the authority to consent to the following:

  • Marriage
  • Enlistment in the armed forces
  • Major medical, surgical, or psychiatric treatment
  • Legal custody, if legal custody is not vested in another person, agency, or institution

'Legal custody' means a relationship embodying the following rights and duties:

  • The right to physical custody of the minor
  • The right and duty to protect, train, and discipline the minor
  • The duty to provide the minor with food, clothing, shelter, education, and ordinary medical care
  • The right to determine where and with whom the minor shall live
  • The right, in an emergency, to authorize surgery or other extraordinary care

The term 'residual parental rights and duties' means those rights and duties remaining with the parent after legal custody or guardianship, or both, have been vested in another person or agency, including the following:

  • The responsibility for support
  • The right to consent to adoption
  • The right to determine the child's religious affiliation
  • The right to reasonable parent-time unless restricted by the court

If no guardian has been appointed, 'residual parental rights and duties' also include the right to consent to marriage; enlistment; and major medical, surgical, or psychiatric treatment.

Qualifying the Guardian

Citation: Admin. Code R512-308-4; R512-308-5

For a nonrelative guardianship, the following factors must be met:

  • The prospective guardian is a licensed out-of-home care provider.
  • The child has lived for at least 6 months in the home of the prospective guardian. This requirement may be waived for sibling groups if at least one sibling has been in the home for 6 months and meets all other eligibility criteria.
  • The division has reviewed the home study and assessed the placement and found that continuation with the caregiver is in the child's best interests and supports the child's safety, permanency, and well-being.
  • The division has no concerns with the care the child has received in the home.
  • The child has a stable and positive relationship with the caregiver.

In addition to qualifying factors listed above, all of the following factors apply for relatives seeking legal guardianship:

  • The child's prospective guardian is a relative to the child, including the following:
    • Grandparents, brothers, sisters, stepbrothers, stepsisters, aunts, uncles, first cousins, first cousins once removed, nephews, and nieces
    • People of prior generations as designated by the prefixes grand, great, great-great, or great-great-great
    • Brothers and sisters by legal adoption
    • The spouse or former spouse of any person listed above
    • Individuals who can prove they meet one of the above-mentioned relationships via a blood relationship even though the legal relationship has been terminated
    • Former stepparents
    • A Native American adult who has a Native American child placed in or living in that adult's home, and both the child and the adult are members of, or eligible for membership in, a federally recognized Tribe
    • An adult of the same ethnicity, culture, country of origin, religion, language, and/or nationality as the refugee/asylee child in his or her care
  • The child's needs may be met without continued division funding.

Procedures for Establishing Guardianship

Citation: Ann. Code §§ 75-5-201; 75-5-206; 75-5-208

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 as guardian any person whose appointment would be in the best interests of the minor. In determining the minor's best interests, the court may consider the minor's physical, mental, moral, and emotional health needs. 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.

By accepting a court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be initiated by any person interested in the welfare of the minor.

Contents of a Guardianship Order

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

Modification/Revocation of Guardianship

Citation: Ann. Code §§ 75-5-210; 75-5-212

A guardian's authority and responsibility terminates upon the death, resignation, or removal of the guardian or upon the minor's death, adoption, marriage, or attainment of majority, but termination does not affect the guardian's liability for prior acts nor his or her obligation to account for funds and assets of the ward. Resignation of a guardian does not terminate the guardianship until it has been approved by the court.

Any person interested in the welfare of a ward, or the ward, if age 14 or older, may petition for removal of a guardian on the ground that removal would be in the best interests of the ward. A guardian may petition for permission to resign. A petition for removal or for permission to resign may, but need not, 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.

Kinship Guardianship Assistance

Citation: Admin. Code R512-308-6; R512-308-7

In order to be considered for a guardianship subsidy, the prospective relative guardian must be a licensed out-of-home care provider and demonstrate that they cannot qualify for a Specified Relative Grant through the Department of Workforce Services, as outlined in R986-200-214.

Guardianship subsidies are available to meet the needs for children in out-of-home care:

  • For whom guardianship has been determined as the most appropriate primary goal
  • Who do not otherwise have adequate resources available for his or her care and maintenance
  • Who meet the qualifying factors described the sections above

The request for the guardianship subsidy shall be reviewed by the regional guardianship screening committee, which shall determine if the request is approved or denied. A prospective guardian shall not receive both the Specified Relative Grant and the guardianship subsidy.

Guardianship subsidies are available through the month in which the child reaches age 18. Each region may establish a limit to the number of eligible children who may receive guardianship subsidies. Guardianship subsidies are subject to the availability of State funds designated for this purpose.

The regional guardianship subsidy screening committee is responsible for the following:

  • Verifying that a child qualifies for a guardianship subsidy
  • Approving the level of need and amount of monthly subsidy for initial requests, changes, and renewals
  • Documenting the committee's decisions
  • Informing guardians of available supportive services to prevent disruptions and preserve permanency

Links to Agency Policies

Utah Division of Child and Family Services, Out-of-Home Care Guidelines (PDF - 1,456 KB), see §§ 308.2 and 308.2a.

Utah Administrative Code: