Kinship Guardianship as a Permanency Option - Vermont

Date: July 2018

Definitions

Citation: Ann. Stat. Tit. 14, § 2661

The term 'permanent guardian' means one or two adults appointed by the court to act as a parent for a child during the child's minority. 'Permanent guardianship' means a legal guardianship of a minor that is intended to continue with the same guardian, based on the guardian's express commitment, for the duration of the child's minority.

The term 'relative' means a grandparent, great-grandparent, sibling, first cousin, aunt, uncle, great-aunt, great-uncle, niece, or nephew of a person, whether related to the person by the whole or the half blood, affinity, or adoption. The term does not include a person's stepparent.

Purpose of Guardianship

Citation: Ann. Stat. Tit. 14, § 2664

An order for permanent guardianship may be issued when the court finds, by clear and convincing evidence, that neither parent is able to assume or resume parental duties within a reasonable time.

A Guardian's Rights and Responsibilities

Citation: Ann. Stat. Tit. 14, §§ 2662; 2663

A permanent guardian shall have parental rights and responsibilities for the child that include the following:

  • Providing the child with:
    • A healthy and safe living environment and daily care
    • Education
    • Necessary and appropriate health care, including medical, dental, and mental health care
  • Making decisions regarding:
    • Travel
    • Management of the child's income and assets
    • The child's right to marry or enlist in the armed forces
    • Representation of the child in legal actions
    • Any other matter that involves the child's welfare and upbringing

The permanent guardian shall:

  • Before appointment, expressly commit to remain the permanent guardian and assume the parental rights and responsibilities for the child for the duration of the child's minority
  • Be responsible to the court and the child for the health, education, and welfare of the minor
  • Comply with all terms of any court order to provide the child's parent with visitation, contact, or information

While a permanent guardianship is in effect, the parent shall have the following rights:

  • Visitation, contact, and information to the extent delineated in the order issued by the family division of the superior court
  • Inheritance by and from the child
  • Right to consent to adoption of the child

After the court has issued a final order establishing permanent guardianship, the parent shall have no right to seek termination of the guardianship order. The parent may seek only enforcement or modification of an order of visitation, contact, or information.

Qualifying the Guardian

Citation: Ann. Stat. Tit. 14, § 2664(a)(4)

The court shall determine whether the proposed permanent guardian:

  • Is emotionally, mentally, and physically suitable to become the permanent guardian
  • Is financially suitable, with kinship guardianship assistance provided for in title 33, § 4903 if applicable, 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, including an understanding of any resulting loss of State or Federal benefits or other assistance

Procedures for Establishing Guardianship

Citation: Ann. Stat. Tit. 14, § 2664

The family division of the superior 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. The court also shall issue an order permitting or denying visitation, contact, or information with the parent at the same time the order of permanent guardianship is issued. Before issuing an order for permanent guardianship, the court shall find by clear and convincing evidence all of the following:

  • Neither parent is able to assume or resume parental duties within a reasonable time.
  • The child has resided with the permanent guardian for at least 6 months.
  • A permanent guardianship is in the best interests of the child.

The parent may voluntarily consent to the permanent guardianship and shall demonstrate an understanding of the implications and obligations of the consent.

The court may name a successor permanent guardian in the initial permanent guardianship order. Prior to issuing an order naming a successor permanent guardian, the court shall find by clear and convincing evidence that the named successor permanent guardian meets the criteria listed in § 2664(a)(4) above.

Contents of a Guardianship Order

Citation: Ann. Stat. Tit. 14, §§ 2663; 2664; 2667

The family division of the superior court shall issue an order regarding visitation, contact, and information based on the best interests of the child. The order may prohibit visitation, contact, and information. The order may incorporate an agreement reached among the parties.

After the family division of the superior court issues a final order establishing permanent guardianship, the case shall be transferred to the appropriate probate division of the superior court in the district in which the permanent guardian resides. Jurisdiction shall continue to lie in the probate division. Appeal of any decision by the probate division of the superior court shall be de novo to the family division.

The probate division of the superior court shall have exclusive jurisdiction to hear any action to enforce, modify, or terminate the initial order issued by the family division of the superior court for visitation, contact, or information. Upon a showing by affidavit of immediate harm to the child, the probate division of the superior court may temporarily stay the order of visitation or contact on an ex parte basis until a hearing can be held, or stay the order of permanent guardianship and assign parental rights and responsibilities to the Commissioner for Children and Families.

A breach by the permanent guardian of an order for visitation, contact, or information shall not be grounds for voiding or terminating the permanent guardianship. However, the court may enforce the order with all the powers and remedies of the court, including contempt.

A modification of an order of visitation or contact shall be based upon a finding by a preponderance of the evidence that there has been a substantial change in the material circumstances and that the proposed modification is in the best interests of the child.

Modification/Revocation of Guardianship

Citation: Ann. Stat. Tit. 14, § 2666

A modification or termination of the permanent guardianship may be requested by the permanent guardian, the child if the child is age 14 or older, or the commissioner. A modification or termination may also be ordered by the probate division of the superior court on its own initiative. When the permanent guardianship is terminated by the probate division of the superior court order or the death of the permanent guardian, the custody and guardianship of the child shall not revert to the parent but to the commissioner as if the child had been abandoned. If a successor permanent guardian has been named in the initial permanent guardianship order, custody shall transfer to the successor guardian, without reverting first to the commissioner.

An order for modification or termination of the permanent guardianship shall be based on a finding by a preponderance of the evidence that there has been a substantial change in material circumstances, or that one or more findings required by subsection 2664(a) of this title no longer can be supported by the evidence, and that the proposed modification or termination is in the best interests of the child. The burden of proof shall be on the party seeking the modification or termination.

In the event that it is necessary to appoint a successor permanent guardian, the parent may be considered with no greater priority than a third party.

Kinship Guardianship Assistance

Citation: Ann. Stat. Tit. 14, § 2663; Tit. 33, § 4903

The parent shall have the primary responsibility to support the child. In the event the income and assets of the parent qualify the child for governmental benefits, the benefits may be conferred upon the child with payment to be made to the permanent guardian. The provision of necessities by the permanent guardian shall not disqualify the child for any benefit or entitlement.

If the child has been in the custody of the commissioner immediately prior to the creation of the guardianship, the commissioner shall have no further duty of support or care for the child after the establishment of the permanent guardianship unless the family is eligible for kinship guardianship assistance or the commissioner contractually agrees in writing to that support.

The Department for Children and Families may expend, within amounts available for the purposes, what is necessary to protect and promote the welfare of children and adults in this State, including the strengthening of their homes whenever possible, by providing aid to a child in the permanent guardianship of a relative if the child was in the care and custody of the department and was placed in the home of the relative for at least 6 months prior to the creation of the guardianship.

Links to Agency Policies

Vermont Department for Children and Families:

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