Kinship Guardianship as a Permanency Option - Washington

Date: July 2018

Definitions

Citation: Rev. Code § 13.36.020

'Guardian' means a person who has been appointed by the court as the guardian of a child in a legal proceeding under this chapter and has the legal right to custody of the child pursuant to court order. The term 'guardian' does not include a 'dependency guardian' appointed pursuant to a proceeding under chapter 13.34 for the purpose of assisting the court in supervising the dependency.

'Relative' means a person related to the child in the following ways:

Any blood relative, including those of half-blood, and including first cousins, second cousins, nephews or nieces, and persons of preceding generations as denoted by prefixes of grand, great, or great-great
Stepfather, stepmother, stepbrother, and stepsister
A person who legally adopts a child or the child's parent, as well as the natural and other legally adopted children of such persons and other relatives of the adoptive parents in accordance with State law
Spouses of any persons named above, even after the marriage is terminated
Relatives, as named above, of any half-sibling of the child
Extended family members, as defined by the law or custom of the Indian child's Tribe or, in the absence of such law or custom, a person who has reached age 18 and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent who provides care in the family abode on a 24-hour basis to an Indian child, as defined in 25 U.S.C. § 1903(4)

'Suitable person' means a nonrelative with whom the child or the child's family has a preexisting relationship, who has completed all required criminal history background checks and otherwise appears to be suitable and competent to provide care for the child, and with whom the child has been placed pursuant to § 13.34.130.

Purpose of Guardianship

Citation: Rev. Code §§ 13.36.010; 13.36.030

The legislature finds that a guardianship is an appropriate permanent plan for a child who has been found to be dependent under chapter 13.34 and who cannot safely be reunified with his or her parents. The legislature intends to create a separate guardianship chapter to establish permanency for children in foster care through the appointment of a guardian and dismissal of the dependency.

A guardianship shall be established if the court finds by a preponderance of the evidence that it is in the child's best interests to establish a guardianship rather than to terminate the parent-child relationship and proceed with adoption or to continue efforts to return custody of the child to the parent.

A Guardian's Rights and Responsibilities

Citation: Rev. Code § 13.36.050

The guardian shall maintain physical and legal custody of the child and have the following rights and duties under the guardianship:

The duty to protect, nurture, discipline, and educate the child
The duty to provide food, clothing, shelter, and education, as required by law, and health care for the child, including, but not limited to, medical, dental, mental health, psychological, and psychiatric care and treatment
The right to consent to health care for the child and sign a release authorizing the sharing of health-care information with appropriate authorities, in accordance with State law
The right to consent to the child's participation in social and school activities
The duty to notify the court of a change of address of the guardian and the child

Unless specifically ordered by the court, the standards and requirements for relocation in chapter 26.09 RCW do not apply to guardianships established under this chapter.

If the child has independent funds or other valuable property under the control of the guardian, the guardian shall provide an annual written accounting, supported with appropriate documentation, to the court regarding receipt and expenditure by the guardian of any such funds or benefits. This subsection shall not be construed to require a guardian to account for any routine funds or benefits received from a public social service agency on behalf of the child.

The guardianship shall remain in effect until the child reaches age 18 or until the court terminates the guardianship, whichever occurs sooner.

Qualifying the Guardian

Citation: Rev. Code §§ 13.36.030; 13.36.040

To be designated as a proposed guardian in a petition under this chapter, a person must be age 21 or older and must meet the minimum requirements to care for children as established by the Department of Social and Health Services under § 74.15.030, including, but not limited to, licensed foster parents, relatives, and suitable persons.

The proposed guardian must sign a statement acknowledging the guardian's rights and responsibilities toward the child and affirming the guardian's understanding and acceptance that the guardianship is a commitment to provide care for the child until the child reaches age 18.

Before the court can establish a guardianship for a child who has no legal parent, the court must find that one or more exceptional circumstances exist and the benefits for the child from establishing the guardianship outweigh any potential disadvantage to the child of having no legal parent. Exceptional circumstances may include, but are not limited to, the following:

The child has special needs and a suitable guardian is willing to accept custody and able to meet the needs of the child to an extent unlikely to be achieved through adoption.
The proposed guardian has demonstrated a commitment to provide for the long-term care of the child and (i) is a relative of the child; (ii) has been a long-term caregiver for the child, has acted as a parent figure to the child, and is viewed by the child as a parent figure; or (iii) the child's family has identified the proposed guardian as the preferred guardian, and, if the child is age 12 or older, the child also has identified the proposed guardian as the preferred guardian.

Procedures for Establishing Guardianship

Citation: Rev. Code §§ 13.36.030; 13.36.040

Any party to a dependency proceeding under chapter 13.34 RCW may request a guardianship be established for a dependent child by filing a petition in juvenile court under this chapter. All parties to the dependency and the proposed guardian must receive adequate notice of all proceedings under this chapter. For purposes of this chapter, a dependent child age 12 or older is a party to the proceedings.

A guardianship shall be established if:

All parties agree to entry of the guardianship order and the proposed guardian is qualified, appropriate, and capable of performing the duties of guardian.
At the time of the hearing on the guardianship petition, the child has or will have been removed from the custody of the parent for at least 6 consecutive months following a finding of dependency under § 13.34.030.
All reasonably available necessary services, capable of correcting the parental deficiencies within the foreseeable future, have been provided or offered.
There is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future.

Upon the request of a dependency guardian appointed under chapter 13.34 and the department or supervising agency, the court shall convert a dependency guardianship to a guardianship under this chapter.

Contents of a Guardianship Order

Citation: Rev. Code § 13.36.050

If the court has made the findings required under § 13.36.040, the court shall issue an order establishing a guardianship for the child. The order shall:

Appoint a person to be the guardian for the child
Specify the guardian's rights and responsibilities concerning the care, custody, control, and nurturing of the child
Specify the guardian's authority, if any, to receive, invest, and expend funds, benefits, or property belonging to the child
Specify an appropriate frequency and type of contact between the parent or parents and the child, if applicable, and between the child and his or her siblings, if applicable
Specify the need for and scope of continued oversight by the court, if any

Once the dependency has been dismissed pursuant to § 13.36.070, the court shall not order the department or other supervising agency to supervise or provide case management services to the guardian or the child as part of the guardianship order.

The court shall issue a letter of guardianship to the guardian upon the entry of the court order establishing the guardianship under this chapter.

Modification/Revocation of Guardianship

Citation: Rev. Code §§ 13.36.060; 13.36.070

A guardian or a parent of the child may petition the court to modify the visitation provisions of a guardianship order. The court shall deny the motion unless it finds that there is adequate cause for hearing the motion, in which case a hearing will be held on whether the modification should be granted.

Any party to a guardianship proceeding may request termination of the guardianship by filing a petition stating that there has been a substantial change in circumstances and that termination is in the child's best interests.

The court shall not terminate a guardianship unless it finds, upon the basis of facts that have arisen since the guardianship was established, that a substantial change has occurred and that termination of the guardianship is necessary to serve the best interests of the child.

The court may terminate a guardianship on the agreement of the guardian, the child if the child is age 12 or older, and a parent seeking to regain custody of the child, if the court finds by a preponderance of evidence and on the basis of facts that have arisen since the guardianship was established, that:

The parent has successfully corrected parenting deficiencies to the degree that returning the child to the custody of the parent no longer creates a risk of harm to the child.
The child, if age 12 or older, agrees to termination of guardianship and return to the parent.
Termination of guardianship and return of the child to the parent is in the child's best interests.

Upon the entry of an order terminating a guardianship, the court shall:

Grant legal and physical custody of the child to the child's parent
Grant legal and physical custody of the child to a substitute guardian
Temporarily place the child in the custody of the department for placement with a relative or other suitable person, if available, or in an appropriate licensed out-of-home placement

Kinship Guardianship Assistance

Citation: Rev. Code § 13.36.090

A relative guardian who is a licensed foster parent at the time a guardianship is established and who has been the child's foster parent for a minimum of 6 consecutive months preceding entry of the guardianship order is eligible for a relative guardianship subsidy on behalf of the child. The department may establish rules setting eligibility, application, and program standards consistent with applicable Federal guidelines for expenditure of Federal funds.

Within amounts appropriated for this specific purpose, a guardian who is a licensed foster parent at the time a guardianship is established and who has been the child's foster parent for a minimum of 6 consecutive months preceding entry of the guardianship order is eligible for a guardianship subsidy on behalf of the child.

Links to Agency Policies

Washington State Department of Social and Health Services, A Resource Guide for Relatives as Parents in Washington State (PDF - 2,046 KB)

Related Resources

Kinship Guardianship as a Permanency Option PDF