LSNJ Key Developments - Kinship Legal Guardianship Update

Kinship Legal Guardianship (Update)
By: Nancy Goldhill
October 28, 2001

Beginning in January 2002, New Jersey will provide $250 monthly stipends to certain relatives and other caretakers caring for children in their homes under a new "kinship legal guardianship" law, signed by acting Gov. DiFrancesco on October 11. Three new programs are being created to provide these benefits--two are exclusively for families involved with DYFS; the third is available to financially eligible caretakers who become legal guardians under the new law. Funding for the three programs--$19.1 million-- is expected to serve 13,000 of the 85,000 New Jersey children estimated to live in kinship care arrangements. Kinship benefits and legal guardianship are not restricted to relatives; family friends and people having a legal relationship with a child can also apply. Eligible caretakers, however, will have to complete the process to become a legal guardian, which, as explained more fully below, will require the caretaker to pay for and undergo an assessment process with a home review and record checks, as well to prove that the child's parents are incapacitated. Grandparents, relatives and other caretakers who have custody of children--but not kinship legal guardianship--will not be eligible for benefits unless DYFS has placed the children in their homes.

Kinship legal guardianship expires when the child becomes 18 or is no longer in secondary school, whichever occurs later. The guardianship will most likely be difficult to revoke otherwise. Parents will only be able to have their children returned home if they can prove that they are no longer incapacitated or that the guardian is unable to care for the child and the children's interests will be best served at home. Clear and convincing evidence is required to get or reverse kinship legal guardianship.

Applications for kinship benefits are not available yet, but should be by January. Before the program can begin, the Administrative Office of the Courts (AOC) must adopt new forms and procedures to implement the legal guardianship law and the Department of Human Services must develop regulations to administer the programs. Questions about the programs can be directed to the Kinship Navigator under the Department of Human Services (877-816-3211), and clients can put their names on a list to be contacted when the program takes effect.

Kinship Care Pilot Program. This is the only one of the new programs available to caregivers caring for children who have not been placed by DYFS. In order to get monthly benefits under this program, caregivers must a) obtain "kinship legal guardian" status, explained below; b) have income below 150% of the federal poverty guidelines--$26,475 for a family of four; and c) have cared for the children for the last 12 consecutive months. This program will be operated by the Division of Family Development (DFD) and is expected to serve approximately 8,000 children. Currently relatives and others caring for children (without DYFS involvement) can get a child-only welfare grant at $162 per month for one child (and additional increments for more children, e.g., $322 for two children). Families should be aware, however, that the higher kinship care payments may result in a reduction of any Food Stamps or housing assistance they receive.
DYFS Relative Care Program. This program, administered by DYFS, will provide monthly payments to relatives caring for children placed by DYFS, without any financial eligibility limits. Caretakers will have to obtain legal guardianship under the new law, and the children must have resided with them for the last 12 months. The State expects that this program will cover approximately 2,000 children. Once legal guardianship is awarded, DYFS will close its case, enabling the State to move child protection cases more rapidly in accordance with ASFA requirements.
DYFS Permanency Initiative. Under this program, also administered by DYFS, payments will be available to approximately 3,000 children removed from their homes by DYFS. The caretakers will not need to apply for legal guardianship and will not need to wait until the children have lived there 12 months. There are no income eligibility requirements. These benefits, however, will only last up to 15 months, at which time DYFS is expected to have a "permanent" plan for the child, such as returning home, adoption or legal guardianship.

How to become a legal guardian

In order to become a legal guardian and qualify for kinship benefits under the first two programs, caretakers will have to go through the procedures set out below. Some of the procedures and requirements are different for cases in the DYFS system, as explained at the end of this article. Kinship legal guardianship is not the same as the existing guardianship provisions under the jurisdiction of the Surrogate's court under Title 3B of New Jersey law. Family Part judges will decide these new guardianship cases. Once regulations and court procedures are adopted, we will be able to provide more detailed information. This will outline the requirements under the new law.

The new law can be found at N.J.S.A. 3B:12-1 et seq. The sections relating to DYFS are at N.J.S.A. 30:4C-84 et seq.

Jurisdiction/Fees. Legal guardianship cases will be heard in Family Part and no filing fees will be charged.

Notice. Notice must be given to parents and any other party who has court-awarded custody or parenting time with the child.

Rights of kinship legal guardian and birth parents. A kinship legal guardian shall have the same rights and responsibilities as a birth parent (making decisions about the child's care, consenting to medical treatment…) except that the birth parent shall retain authority to consent to the child's adoption or name change. The birth parent will also be responsible to pay child support. Kinship legal guardianship does not end any rights or benefits the child might derive from birth parents, such as inheritance or benefit eligibility.

Visitation rights. The birth parents will keep the right to visit with the child, as determined by the court.

Petition and assessment. Petitions for kinship legal guardianship must be filed with a kinship caregiver assessment, which must be done in advance of filing. The assessment will be conducted by an independent agency for non-DYFS cases and by DYFS for its own cases. Information will follow about where and how assessments will be conducted. Except in DYFS cases, the proposed guardian will have to pay the cost of the assessment. It is not clear yet what the fee will be or how DFD will grant fee waivers, but caregivers who cannot pay the fee must be able to seek a waiver. The assessment must contain:

Name and address of the proposed kinship legal guardian;
Circumstances of the kinship relationship;
Whereabouts of the child's parents, if known;
Nature of the parents' incapacitation, if known;
Wishes of the parents, if known;
Ability of the kinship caregiver family to assume permanent care of the child;
Child's property and assets, if known;
Wishes of the child, if appropriate;
Any current involvement of a child with DYFS if the child has an open case and is receiving services;
Certification from the caregiver that the caregiver has been providing care and support for the child, in the caregiver's home, for at least the last 12 consecutive months;
Results from a criminal history record background check and a domestic violence central registry check on the caregiver and any adult in caregiver's household;
Child abuse record check; and
Results of the caregiver's home review (this will also be performed as part of the assessment and more details about this process will follow).

Standard for Legal guardianship. Guardianship cannot be awarded solely because of parental incapacity. The caretaker (or DYFS in actions it files) must prove by clear and convincing evidence that:

Each parent's incapacity is so serious that the parents are "unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;"
Parental inability to perform those functions is unlikely to change in the foreseeable future; and
Kinship legal guardianship is in the best interests of the child.

The court must also consider the assessment. If the caregiver or a household member has a criminal record or is subject to a final domestic violence restraining order, the court shall review the type and date of the offense or order and determine whether the person is suitable to be a kinship legal guardian.

Termination of guardianship. Legal guardianship terminates when a child is 18 or no longer continuously enrolled in a secondary education program, whichever occurs later.
Guardianship may be vacated earlier if court finds that:

Guardianship is no longer in the child's best interests;
The parental incapacity that led to the award of guardianship is no longer the case and terminating the guardianship is in the child's best interests (court must find by clear and convincing evidence); or
The guardian failed or is unable, unavailable or unwilling to provide proper care for the child (court must find by clear and convincing evidence).

In DYFS cases, the court may refer the parent for a new assessment before deciding whether to return the child home.

Special provisions for DYFS cases.

Who can file. Only DYFS can seek legal guardianship when there is an open DYFS court case under Title 9 or 30. A caregiver who has cared for a child placed by DYFS under a voluntary placement agreement for at least 12 consecutive months can, with DYFS' consent, petition the court for appointment as kinship legal guardian.
Parents may request legal guardianship. Parents may ask the court to consider kinship legal guardianship as an alternative disposition in an ongoing DYFS action. In that case, DYFS will not have to file a new petition, but can amend the pending complaint. (In some cases, this option may be advantageous to the parent. If s/he is likely to have his or her parental rights terminated, legal guardianship will allow the parent to maintain visitation rights with the child.)
Assessment. The kinship caregiver assessment will be provided free by DYFS in all cases filed by DYFS and in cases where a caregiver files with DYFS' consent as explained under "Who can file" above. The court will consider DYFS' recommendations, including any visitation restrictions. (NOTE: This law was intended to maintain visitation rights for birth families. If courts attempt to sever visitation rights, you could argue that result is tantamount to termination of parental rights and court does not have discretion to do that in legal guardianship case where standards are lower.)
Additional standards for guardianship. The court must find (by clear and convincing evidence) that a) DYFS exercised reasonable efforts to reunify the child with the birth parents and that efforts were unsuccessful or unnecessary, and b) adoption of the child is neither feasible nor likely.
Right to counsel. Indigent parents and children shall have a right to legal representation if DYFS has an open case and parties are currently being represented by or through the Office of the Public Defender. In these situations, parents and children will have the same right to counsel as in actions under N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-15.4 (abuse/neglect and termination of parental rights actions).
Permanent placement. When a kinship legal guardian is appointed in a DYFS case, the court will consider that to be the permanent placement for the child and DYFS will close its case.