State Child Welfare Policy Guide: Part of the Policy Matters Series

4.1 Permanent legal guardianship

Permanent legal guardianship with kin is an important path to a permanent, stable home for children when neither reunification with their families nor adoption is possible or desired. Unlike adoption, guardianship does not involve termination of parental rights; therefore, it is an acceptable option for caregivers who oppose terminating parental rights on cultural, religious or personal grounds. In Native American tribes, where termination of parental rights is often considered abhorrent, legal guardianship is consistent with the traditional practice of customary adoption in which the tribe as a whole takes responsibility for child-rearing and individual members fill various roles within the child’s life [i] . Legal Guardianship is also an option for caregivers who are willing to provide a permanent, loving home for a child, but are unwilling to disrupt family relationships or displace a family member with a disability or other problem that limits parenting. Many children and youth who understand the legal options for permanency and their implications prefer a permanent home with kin instead of adoption.

Guardianship has potential for reducing the number of children in foster care and especially the disproportional number of children of color. The Illinois Department of Children and Family Services implemented a range of strategies to reduce foster care, and it credits the state subsidized guardianship program established in 1997 as one of the cornerstones to its success. In 1997, 51,000 children were in foster care, 78 percent of whom were African-American. Now there are less than 16,000 children in foster care, 60 percent of whom are African-American. More than 10,000 children exited foster care to legal guardianship. [ii]

When Congress enacted the Fostering Connections legislation in 2008, it gave states the option of using Title IV-E funds for kinship guardianship assistance payments for children raised by relatives in foster care. The child must have resided with the relative caregiver for at least six months, and must be eligible for Title IV-E foster care in order to receive the guardianship subsidy. Return home and adoption must also be ruled out in order to be eligible. Children eligible for federal guardianship assistance are also eligible for Medicaid. In addition, youth who leave foster care to guardianship (or adoption) after age 16 are eligible to receive independent living services and education and training vouchers. [iii]

States can choose to opt into the federal guardianship assistance program in order to help children who can’t return home or be adopted find a permanent home with relatives. States can consider the following components when developing subsidized guardianship programs and policies, include the following:

· Set adequate subsidy levels . Research demonstrates that children and youth are more likely to exit foster care to guardianship if subsidy levels are equal to what a child received while in foster care. In Maryland, the evaluation of their federal child welfare waiver demonstration for guardianship assistance found that inadequate benefit levels were a disincentive to permanency. [iv] By contract, preliminary results from Minnesota’s Permanency Demonstration Project find that setting foster care, adoption and guardianship subsidies at the same level can result in reduced lengths of stay and higher permanency rates. [v] (see policy area 5.1)

· Provide guardianship for non IV-E eligible children. States that opt into the federal IV-E guardianship assistance program can ensure that those children who are not IV-E eligible have access to guardianship through state funding. States that already had subsidized guardianship can use state or federal funding that was previously used to support children in guardianship before the federal program was authorized, or use savings from reduced foster care and court administrative costs to fund non IV-E eligible children.

· Medical coverage . Caregivers report that health care costs are a major deterrent to obtaining legal guardianship. Twenty-five states provided Medicaid or state health insurance coverage for children in legal guardianship arrangements before the federal program was enacted. [vi] States can ensure that those children who are not eligible for Medicaid through the federal program have access to state health insurance coverage.

· Age of eligible children . In 2004, 11 states limited eligibility to children age 12 to 18. Because states have experienced the positive impact of legal guardianship for children and found legal guardianship to be appropriate for younger children, the trend is to expand eligibility to all ages. [vii]

· Access to child care assistance and other supports . Many caregivers report that lack of affordable child care is another barrier to permanency. Eligibility for child care assistance is usually based on the guardian’s household income and other requirements of the state child care assistance program. Expanding eligibility and otherwise increasing access to child care may increase the number of children who achieve permanency through legal guardianship. In New Jersey, for example, subsidies for day care or preschool are based in part on the caregiver’s age, allowing a large number of guardians to access services.

· Well-informed decisions by caregivers and children . Connecticut and Idaho have amended their statutes to require dissemination of information about subsidized guardianship to all prospective guardians. [viii] In Wisconsin, a subsidized guardianship agreement is required between the child welfare agency, the guardian, and, when appropriate, the child to ensure that all parties are fully informed about the rights, responsibilities and terms of the arrangement. [ix]

· Standby guardians . To help ease the emotional and financial transition for the child if a guardian dies or becomes disabled, a few jurisdictions require or allow a prospective guardian to designate a co-guardian or standby guardian. Final transfer of permanent legal guardianship to the standby guardian is subject to court approval.

Policy Options : States can promote permanent legal guardianship by adopting and funding the implementation of 1, 2, 3, 4, 5, of 6 of the following policies:

• State provides subsidy levels that are equal to what a child would have received through foster care or adoption

· State provides guardianship subsidy and medical assistance for children who are not eligible for the federal guardianship assistance program.

· Permanent legal guardianship with kin is a permanency option that is actively explored for each child who cannot be reunified with his or her birth parents.

· Children of all ages are eligible for subsidized guardianship.

· Permanent guardians have expanded access to child care assistance.

· Permanent, legal guardians are encouraged to designate standby guardians.