Kinship Guardianship as a Permanency Option - West Virginia

Date: July 2018


Citation: Ann. Code § 49-1-204; Pol. Man. § 1.1; 1.5

'Caregiver' means any person who is at least age 18 and (a) is related by blood, marriage, or adoption to the minor but who is not the legal custodian or guardian of the minor or (b) has resided with the minor continuously during the immediately preceding 6 months or more.

'Custodian' means a person who has or shares actual physical possession or care and custody of a child, regardless of whether that person has been granted custody of the child by any contract or agreement.

'Legal or minor guardianship' means the permanent relationship between a child and a caregiver, established by order of the court having jurisdiction over the child or juvenile, pursuant to this chapter and chapter 44 (§§ 44-1-1, et seq.).

'Guardian' means a person who has care and custody of a child as a result of any contract, agreement, or legal proceeding.

In policy: For the purposes of the placement of children, the term 'kinship/relatives' means any person related to the child by blood or marriage, including cousins and in-laws. A person who the child considers a relative, such as a godparent or other significant person whom the child claims as kin, also may be considered as a placement resource.

Legal guardianship is a legally binding relationship between a child and a caregiver, other than the child's biological parent, that may be considered as a permanent placement option for the child. This arrangement transfers all the rights and responsibilities for a child from the Department of Health and Human Resources to the caregiver through a court-sanctioned process. Parental rights are not required to be terminated in order for a child to be in a legal guardianship.

Purpose of Guardianship

Citation: Pol. Man. § 1.0

The Department of Health and Human Resources is authorized by statute to utilize legal guardianship as a viable permanency option once reunification and adoption have been ruled out.

Permanency-planning efforts should begin as soon as a child enters into the custody of the department or when it appears it may happen. All possible resources should be considered in order to arrive at the least restrictive, most appropriate environment for the child. Priority consideration must be given to the child's relatives for the most suitable placement, provided the best interests of the child are the primary consideration. Throughout the life of the child's case, appropriate family members should be sought out and considered for placement of the child or for family connections with the child.

The creation of a permanent family for children in custody is the main objective for children that are unable to be reunified with their family of origin. Adoption must be the primary choice for permanency planning, with other alternatives being considered only after adoption has been ruled out. Once reunification and adoption have been ruled out, legal guardianship may be considered, provided it would be in the child's best interests.

A Guardian's Rights and Responsibilities

Citation: Pol. Man. §§ 1.0; 1.5

A legal guardianship is a judicially created and legally binding relationship between a child and caregiver that is intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver of the following parental rights with respect to the child: protection, education, care, and control of the child; custody of the child; and decision-making. Parental rights are not required to be terminated in order to sanction a legal guardianship under § 49-2-17.

Subsidized legal guardianship is the transfer of legal responsibility for a minor child from the State to a private certified caregiver or guardian, who is provided with a monthly subsidy and/or medical card for the care and support of the child. The transfer of legal responsibility removes the child from the child welfare system, allows a caregiver to make important decisions on the child's behalf, establishes a long-term caregiver for the child, and addresses the child's financial needs through ongoing subsidy.

Qualifying the Guardian

Citation: Pol. Man. § 2.1

Legal guardianship should be considered for a child when the following conditions have been met:

  • The permanency goals of reunification and adoption have been ruled out and the reasons are documented in the case record.
  • The child has resided with the prospective guardian for at least 6 months immediately prior to establishing legal guardianship and was eligible for foster care maintenance payments.
  • The guardianship home was certified or approved as meeting the requirements as a foster home during the 6 months prior to establishing legal guardianship.
  • The child must be at least age 12 if he or she is in the home of an unrelated caregiver, unless it is decided by the department that it would be in the child's best interests to do legal guardianship at a younger age. There is no age limit when the caregiver is a kin/relative, provided it is in the child's best interests.
  • The best-interests determination must be documented in the child's case plan.
  • The child must have a strong attachment to the prospective legal guardian and the guardian must have a strong commitment to caring permanently for the child.
  • The child who is age 14 or older has been consulted regarding the guardianship arrangement.

Procedures for Establishing Guardianship

Citation: Pol. Man. §§ 2.0; 6.2

Legal guardianship is the permanent transfer of legal responsibility for a child in State custody to either a kin/relative or an individual other than his or her parents. Unless specified otherwise by the court, a grant of custody of a child to the department by the court is sufficient for the department to transfer legal guardianship. The department may consent to the transfer of legal guardianship when certain conditions are met.

Court action is necessary to transfer custody of the child from the department to the legal guardian. The prospective legal guardian's attorney will petition the court to request the change in legal custody of the child. A copy of the legal guardian's home study; a copy of the child's posttermination placement plan; any termination of parental rights documentation; and an original signed subsidized guardianship agreement, the application for subsidized guardianship, and an original signed consent must be submitted to the attorney for the prospective legal guardian for filing with the petition. The child's caseworker will ensure the prospective legal guardian, the child, the child's birth parents (if termination of parental rights has not occurred), and the child's attorney are notified of the date and location of the hearing.

At the hearing, the court will determine whether to grant the request for transfer of custody. The child's caseworker and prospective legal guardians must attend the hearing.

Contents of a Guardianship Order

Citation: Pol. Man. § 6.2

After the finalization of the legal guardianship, the child's caseworker will provide the legal guardians with one original signed agreement, a certified copy of the court order, and the child's original birth certificate.

Modification/Revocation of Guardianship

Citation: Pol. Man. §§ 6.3; 6.4

The legal guardianship agreement will terminate when the child reaches age 18 or is otherwise emancipated.

As soon as the department becomes aware that a legal guardianship may be disrupted, a caseworker will make contact with the family to determine what, if anything, the department can do to preserve the legal guardianship placement.

If the child is removed from an adoptive home or other permanent placement after the case has been dismissed from the court's docket, any party with notice thereof and the receiving agency shall promptly report the matter to the circuit court of origin, the department, and the child's counsel. The court shall schedule a permanent placement review conference within 60 days, with notice given to any appropriate parties and persons entitled to notice and the right to be heard. The department shall convene a multidisciplinary treatment team meeting within 30 days of the receipt of notice of permanent placement disruption.

If the child is placed into the custody of the department, the department worker must make an appropriate placement for the child.

If the child's guardianship placement is disrupted due to the guardian's death or inability to continue providing for the child, provided the guardian named a successor guardian at the time the agreement was signed, the child may move to reside with the successor guardian.

Kinship Guardianship Assistance

Citation: Ann. Code § 49-4-112

For a legal guardianship subsidy, the children must be in special circumstances because one or more of the following conditions inhibit their guardianship placement:

  • They have a physical or mental disability or are emotionally disturbed.
  • They are older children, part of a sibling group, or members of a racial or ethnic minority.

The department shall provide assistance in the form of subsidies or other services to parents who are found and approved for legal guardianship of a child certified as eligible for subsidy. Before the order of legal guardianship is entered, there must be a written agreement between the family entering into the subsidized legal guardianship and the department.

Guardianship subsidies may commence with the legal guardianship placement and will vary with the needs of the child as well as the availability of other resources to meet the child's needs. The subsidy may be for special services only, or for money payments, and either for a limited period, or for a long term, or for any combination of the foregoing. In addition, the department shall provide either Medicaid or other health insurance coverage for any child who has special needs for medical, mental health, or rehabilitative care.

After reasonable efforts have been made without the use of subsidy and no appropriate legal guardian has been found for the child, the department shall certify the child as eligible for a subsidy in the event of legal guardianship. Reasonable efforts to place a child without a subsidy shall not be required if it is in the best interests of the child because of such factors as the existence of significant emotional ties developed between the child and the prospective guardian while in care as a foster child.

Links to Agency Policies

West Virginia Department of Health and Human Resources, Legal Guardianship Policy (PDF - 186 KB)