Guardianship.

There are two types of guardianships that are recognized during child welfare proceedings:  a guardianship restricted to parties in a dependency case and a broader guardianship that is not limited to the parties of a dependency case.  Unlike adoption, neither of these guardianships require termination of parental rights.

Dependency-Specific Guardianship.

A dependency-specific guardianship allows any party to a dependency proceeding to file a petition in juvenile court seeking a guardianship, with notice provided to all the parties in the dependency case.  This is sometimes referred to as a "Title 13" guardianship based on the location of this guardianship in the law and in contrast to the broader "Title 11" guardianship described below.

To be designated as a proposed guardian, a person must be age 21 or older and must meet minimum requirements to care for children established by the Department of Children, Youth, and Families (DCYF).  A guardianship may 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 continue to return custody of the child to the parent and:

• all parties agree to the entry of the guardianship order and the proposed guardian is qualified, appropriate, and capable of carrying out the duties of a guardian; or
• the child has been found dependent, removed from the custody of the parent for at least six consecutive months, services have been offered or provided to the parent, there is little likelihood that the child can be returned to the parent in the near future, and the proposed guardian acknowledged the guardian's rights and responsibilities to the child committing to care for the child until the child reaches age 18.

In all guardianship proceedings, the court must appoint a guardian ad litem or attorney for the child.

Except in limited circumstances, the court may not establish a guardianship for a child who has no legal parent.

Any party to a guardianship may request termination of the guardianship by filing a petition and supporting affidavit alleging a substantial change has occurred in the circumstances of the child or the guardian and that the termination is necessary to serve the best interests of the child.  The court may terminate a guardianship with agreement of the guardian, the child (if the child is age 12 or older), and the parent seeking to regain custody of the child if the court finds by a preponderance of the evidence that the parent has successfully corrected the parenting deficiencies identified by the court in the dependency case, among other things.

A guardian or a parent of the child may petition the court to modify the visitation provisions of a guardianship.  The court must deny such a petition unless adequate cause is found.

A guardianship remains in effect until the child turns age 18 or the court terminates the guardianship, whichever is sooner.

Limited Guardianship of a Minor.

A person interested in the welfare of a minor, including the minor themselves, may petition for the appointment of a guardian in a broader guardianship process that is not limited to parties involved in a dependency case.  This is sometimes referred to as a "Title 11" guardianship based on the location of this guardianship in statute.  After a petition is filed for this type of guardianship, a person becomes a guardian for a minor only on appointment of the court.  The court may appoint a guardian if the court finds that the appointment is in the minor's best interest and:

• each parent consents;
• all parental rights have been terminated; or
• there is clear and convincing evidence that no parent of the minor is willing or able to exercise parenting functions.

In the interest of maintaining or encouraging involvement by a minor's parent in the minor's life, developing self-reliance of the minor, or for other good cause, the court may create a limited guardianship by limiting the powers otherwise granted to a guardian.  When establishing a Title 11 guardianship of a minor, the court shall state rights retained by the parent, which must preserve the parent-child relationship through an order for parent-child visitation and other contact, unless the court finds the relationship should be limited or restricted, and which may include decision-making regarding the minor's health care, education, or other matter, or access to a record regarding the minor.

An order granting guardianship for a minor must state that the parent of the minor is entitled to notice that:

• the guardian has delegated custody of the minor;
• the court has modified or limited the powers of the guardian; or
• the court has removed the guardian.  

Relative Guardianship Assistance Program.

The Relative Guardianship Assistance Program (RGAP) operated by the DCYF provides a subsidy for children placed in a guardianship (either the dependency-specific guardianship or the limited guardianship of a minor) with a qualified, licensed relative.  To qualify for the RGAP, a person must:

• have cared for the child for at least six consecutive months and have been a licensed foster parent for at least six consecutive months;
• be eligible according to federal funding criteria; and
• be a relative or care for a sibling who is receiving assistance through the RGAP.

The RGAP subsidy payments cannot exceed the foster care maintenance payments for the child had the child remained in a licensed foster home during the same period.  

An RGAP subsidy may be provided for youth age 16 until their twenty-first birthday when the youth qualifies for extended foster care.  To qualify for extended foster care, a youth must have been dependent at the time the youth reaches age 18 and:

• enrolled in a secondary education program;
• enrolled in a postsecondary education program;
• participating in an employment program;
• employed for 80 hours or more per month; or
• not able to engage in any of the above activities due to a documented medical condition.  

A "suitable person" is defined to mean 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 a dependency court order.

For purposes of the RGAP, a relative includes any:

• blood relative, including those of half-blood, and including first and 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;
• 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;
• spouses of any persons named above, even after the marriage is terminated;
• relatives, as named above of any half sibling of the child; or
• 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.

Voluntary Placement Agreements.

The DCYF may enter into a voluntary placement agreement (VPA) with a parent to place a child with a relative or in a licensed foster home when:

• a safety threat exists, that cannot be managed in the home, and services provided for 90 days are likely to eliminate the need for court intervention;
• a safety threat exists, that cannot be managed in the home, after business hours and the child is not placed in protective custody by law enforcement;
• parents or legal guardians need temporary care for a child while undergoing medical care or treatment and there are no alternative placement resources; or
• the child's parent is not immediately available to provide care.

Parental approval is required for a VPA.  A VPA may occur for a child under age 18, or for a youth under age 21, if the youth is being served by the extended foster care program.

The substitute bill specifies that the Department of Children, Youth, and Families has the authority to provide subsidies on behalf of youth ages 18 to 21 who achieved permanency through guardianship and meets existing criteria and makes technical changes to reflect the expansion of the guardianship subsidy to nonrelatives.