Kinship Guardianship as a Permanency Option - Wyoming

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Definitions

Citation: Ann. Stat. § 14-3-402

'Legal custody' means a legal status created by court order that vests in a custodian the right to have physical custody of a minor; the right and duty to protect, train, and discipline a minor; the duty to provide the minor with food, shelter, clothing, transportation, ordinary medical care, and education; and, in an emergency, the right and duty to authorize surgery or other extraordinary medical care. The rights and duties of legal custody are subject to the rights and duties of the guardian of the person of the minor and to residual parental rights and duties.

The term 'residual parental rights and duties' means those rights and duties remaining with the parents after legal custody, guardianship of the person, or both, have been vested in another person, agency, or institution. Residual parental rights and duties include, but are not limited to, the following:

  • The duty to support and provide necessities of life
  • The right to consent to adoption
  • The right to reasonable visitation unless restricted or prohibited by court order
  • The right to determine the minor's religious affiliation
  • The right to petition on behalf of the minor

Purpose of Guardianship

Citation: Soc. Serv. Pol. Man., Pol. # 3.3

A legal guardian is an individual who is authorized by the court to control the person of a minor. Guardianship is designed to provide protection to the child who is deprived of the natural guardianship of his or her parents. Legal guardianship involves the transfer of legal responsibility for a child in the custody of the Department of Family Services (DFS) to a private caregiver who becomes the legal guardian of the child.

Legal guardianship shall not be initiated until reasonable efforts have been exhausted to reunite the child with his or her family, and DFS has documented that adoption is not in the best interests of the child. DFS may proceed for good cause to seek a legal guardian without parental consent, provided that legal notice is given of the legal guardianship petition hearing.

A Guardian's Rights and Responsibilities

Citation: Ann. Stat. § 14-3-402

The legal custodian of a child has the following rights and duties:

  • The right to have physical custody of the child
  • The right and duty to protect, train, and discipline the child
  • The duty to provide the child with food, shelter, clothing, transportation, ordinary medical care, and education
  • In an emergency, the right and duty to authorize surgery or other extraordinary medical care

The rights and duties of legal custody are subject to the rights and duties of the guardian of the person of the minor and to residual parental rights and duties.

Qualifying the Guardian

Citation: Soc. Serv. Pol. Man., Pol. # 3.3

DFS shall give preference to an adult relative caregiver over a nonrelated caregiver when determining a placement for a child, provided the adult relative caregiver meets all relevant child protection standards.

All of the following requirements must be met before the legal guardianship is finalized:

  • The child is younger than age 18 and has been in the legal custody of DFS immediately prior to establishing the legal guardianship.
  • The child has resided with the prospective legal guardian for at least 6 months immediately prior to filing the petition for legal guardianship and entering into a legal guardianship. This requirement may be waived for sibling groups when at least one sibling meets all legal guardianship requirements.
  • Reunification of the child with his or her family and adoption have been ruled out as permanency goals despite reasonable efforts made to reunite the family or to seek adoption of the child.
  • The child has a strong attachment to the prospective legal guardian and the prospective legal guardian has a strong commitment to caring permanently for the child.
  • A child age 14 and older has participated in creating the legal guardianship arrangement.
  • The legal guardian is able to support the child financially or is able to with the assistance of a subsidy or other resources that may be available to the child.

If the prospective legal guardian is not already an approved adult relative home or a certified foster home, the following requirements must be met:

  • The prospective legal guardian must be older than age 21 unless the age requirement has been waived by the DFS district manager.
  • Five references, including two from relatives and three from nonrelatives, must be submitted.
  • A home study and a health and safety checklist must be completed.
  • All background check requirements for all adults living in the home shall be completed.

Procedures for Establishing Guardianship

Citation: Soc. Serv. Pol. Man., Pol. # 3.3.1

Once a determination is made to proceed with legal guardianship or a court orders DFS to proceed with legal guardianship, the DFS caseworker shall immediately complete and submit a notification of guardianship request to the attorney general's office.

The attorney general's office will review the information and make a determination if legal guardianship is legally appropriate. If legal guardianship is appropriate, the attorney general's office will draft a petition for guardianship, consent to guardianship for the parents, and an affidavit and consent to guardianship for the proposed legal guardian. The caseworker shall obtain the signature of the prospective legal guardian and parents on the appropriate document within 2 weeks of receipt and return the signed documents to the attorney general's office.

Once the signed documents are returned to the attorney general's office, it will file the petition for guardianship and proceed with obtaining an order appointing guardian. If a hearing is required, the attorney general's office will notify the caseworker of the date and time of the hearing.

Contents of a Guardianship Order

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

Modification/Revocation of Guardianship

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

Kinship Guardianship Assistance

Citation: Soc. Serv. Pol. Man., Pol. # 3.3.2

If the legal guardian's financial concerns are the only barrier to pursuing a legal guardianship, DFS may negotiate a legal guardianship assistance/subsidy for a child who was in DFS custody when the legal guardianship was established. The caseworker shall have the prospective guardian submit an application for guardianship subsidy when the permanency goal becomes legal guardianship and the prospective legal guardian is identified. The caseworker shall develop a guardianship assistance agreement with the prospective guardian if he or she has applied for a legal guardianship assistance/subsidy. The agreement shall be completed and signed before the legal guardianship is finalized. Legal guardianship assistance/subsidy shall not be paid if the agreement was not finalized prior to finalization of the legal guardianship.

Under no circumstances shall the legal guardianship assistance/subsidy exceed the foster care maintenance payment that would have been paid on behalf of the child if the child had remained in a foster family home.

A legal guardian may apply for Temporary Assistance for Needy Families or for the legal guardianship assistance subsidy for the child, but may not receive both. The legal guardian should apply for whichever program will best meet the needs of the child. In many cases, a child in a legal guardianship will be eligible for Medicaid or other State medical programs. The caseworker shall refer families taking legal guardianship of a child to the benefit specialist staff in the local DFS office to apply for medical assistance.

Funding for the State-funded legal guardianship assistance/subsidy program is contingent upon the availability of State money and is subject to termination at the annual review if funds are not available.

Links to Agency Policies

Wyoming Department of Family Services, Social Services Division Policy, select chapter 3, section 3.3, Legal Guardianship.