Oklahoma Department of Human Services
Sequoyah Memorial Office Building, 2400 N. Lincoln Blvd. • Oklahoma City, OK 73105
(405) 521-3646 • Fax (405) 521-6684 • Internet: www.okdhs.org
 
340:75-6-31.4. Permanent guardianship
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 • 1 through 10

 

Revised 7-1-13

 

(a) Permanent guardianship established pursuant to the Oklahoma Children's Code.  The court may establish a permanent guardianship between a child and a relative or other adult per Sections 1-4-709 and 1-4-710 of Title 10A of the Oklahoma Statutes (10A O.S. § 1-4-709 and 1-4-710) when the guardianship is in the child's best interests and when all conditions listed in 10A O.S. § 1-4-709 are substantially satisfied.  When the child is in Oklahoma Department of Human Services (OKDHS) custody, OKDHS conducts an assessment of the proposed guardian's home and provides a report to the court regarding:

  • (1) the suitability of the proposed guardian; and
  • (2) whether guardianship is in the child's best interests.  • 1

(b) Filing the permanent guardianship motion.  The district attorney or child's attorney is responsible for filing a motion for permanent guardianship with the juvenile court in the deprived case and the prospective guardian signs the verification of the information contained in the motion for permanent guardianship per 10A O.S. § 1-4-710.

  • (1) When it is necessary to file for a Title 30 guardianship, the proposed guardian has the responsibility to obtain an attorney for this purpose.
  • (2) A limited monetary reimbursement for the legal fees and costs associated with a Title 30 guardianship is available to an attorney when the attorney represents a proposed relative guardian in the transfer of legal responsibility of the child to the relative.

(c) Types of permanent guardianship assistance funding available.  Permanent guardianship assistance for a Title 10A or Title 30 guardianship may be funded through the:

  • (1) Temporary Assistance for Needy Families (TANF) Supported Permanency Program;
  • (2) Title IV-E Subsidized Guardianship Program; or
  • (3) state.

(d) Requirements for permanent guardianship without benefits.   • 4   A permanent guardianship may be established without accessing a benefit funding source when the:

  • (1) guardianship is in the child's best interests; and
  • (2) conditions listed in 10A O.S. § 1-4-709 are substantially satisfied.

(e) Requirements for permanent guardianship with TANF Supported Permanency Program benefits.

  • (1) A permanent guardianship may be established with TANF Supported Permanency Program benefits subject to the availability of funds and OKDHS approval when the:
    • (A) guardianship is in the child's best interests;
    • (B) conditions listed in 10A O.S. § 1-4-709 are substantially satisfied;
    • (C) child in OKDHS custody is placed in a paid kinship foster home with a relative who resides in Oklahoma and the relative meets the specified degree of relationship as defined by the TANF program, per OAC 340:10-9-1(a);
    • (D) child is 12 years of age or older or has a sibling 12 years of age or older who resides in the same relative foster home.  The deputy director for programs may, for good cause, approve supported permanency for a child 8 years of age through 11 years of age and his or her sibling when the child has no older eligible sibling;  • 5 & 6
    • (E) court makes a finding that termination of the parent's rights is either not legally possible or not in the best interests of the child or adoption is not the permanency plan for the child;
    • (F) relative meets requirements for approval as an OKDHS foster home;
    • (G) child is currently residing with the relative in Oklahoma and has been for four of the previous six months;
    • (H) relative is willing to assume legal responsibility for the child; and 
    • (I) court and, when appropriate, the child are in agreement with the plan for the relative to obtain legal responsibility for the child.
  • (2) The TANF Supported Permanency Program assistance includes:
    • (A) a limited monetary reimbursement to an attorney representing a prospective relative guardian for the legal fees and costs incurred in the transfer of legal responsibility for the child from OKDHS to the relative;  • 6
    • (B) a monthly payment standard for the child, per OKDHS Appendix C-1, Maximum Income, Resource, and Payment Standards, Schedule XVII;  • 2
    • (C) a Medicaid card for the child's medical care; and  • 3
    • (D) an assigned Adult and Family Services worker who provides referrals for services, when needed.

(f) Requirements for permanent guardianship with Title IV-E Subsidized Guardianship benefits.

  • (1) A permanent guardianship may be established with Title IV-E Subsidized assistance when:
    • (A) the guardianship is in the child's best interests;
    • (B) all conditions listed in 10A O.S. § 1-4-709 are substantially satisfied;
    • (C) the child meets eligibility for Title IV-E relative guardianship assistance payments under Section 473(d)(3)(A) of Title IV-E of the Social Security Act.  The relative may reside in or out-of-state but must meet the specified relationship per OAC 340:75-7-24.
    • (D) the child has been removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the child's welfare and the child is Title IV-E eligible per OAC 340:75-13-13 for at least six consecutive months;
    • (E) the child is a sibling to a child eligible for or receiving Title IV-E relative guardianship assistance and is residing or planning to reside in the same placement;
    • (F) the child is 12 years of age or older or has a sibling 12 years of age or older who resides in the same relative foster home.  The deputy director may, for good cause, approve Title IV-E relative guardianship assistance payments for a child 8 years of age through 11 years of age and his or her sibling when the child has no older eligible sibling;  • 5
    • (G) termination of the parent's rights is either not legally possible or not in the best interests of the child or adoption is not the permanency plan for the child;   • 6
    • (H) the relative has completed requirements to be an approved OKDHS or tribal foster home;
    • (I) the child is currently residing with the relative and has been for six consecutive months;
    • (J) the relative is willing to assume legal responsibility for the child and has a strong commitment to permanently care for the child;
    • (K) the child who is 14 years of age or older has been consulted regarding the kinship guardianship arrangement;
    • (L) the child demonstrates a strong attachment to the prospective relative guardian; and
    • (M) a written agreement, Form 04MP049E, Title IV-E Subsidized Guardianship Agreement, is signed prior to the transfer of legal responsibility by OKDHS and the prospective relative guardian, outlining the assistance provided to the relative.
  • (2) The Title IV-E Subsidized Guardianship agreement outlines the assistance provided to the relative that includes:
    • (A) a limited monetary reimbursement to an attorney representing the prospective relative guardian when a Title 30 instead of a Title 10A guardianship is filed for legal fees and costs incurred in the transfer of legal responsibility of the child to the relative;
    • (B) a monthly payment standard for the child, per OKDHS Appendix C-20  (.pdf, 8 pp, 229 KB), Child Welfare Services Rates Schedule;
    • (C) the manner in which the payment may be adjusted periodically, in consultation with the relative guardian, based on the circumstances of the relative guardian and the child's needs;
    • (D) a Medicaid card for the child;
    • (E) a right to a fair hearing per OAC 340:75-1-12.1;
    • (F) the additional services and assistance for which the child and relative guardian are eligible under the agreement;
    • (G) the procedure by which the relative guardian applies for additional services; and
    • (H) assurance the agreement will remain in effect if the relative guardian moves to another state.
  • (3) The child's case plan describes:
    • (A) how the child meets the eligibility requirements;
    • (B) the steps OKDHS took to determine that return to the home or adoption is not appropriate and termination of the parent's rights is either not legally possible or not in the best interests of the child;
    • (C) the efforts OKDHS made to discuss adoption with the child's relative foster parent and the reasons why adoption by the relative foster parent is not an option;
    • (D) the reason a permanent placement with a prospective relative guardian and receipt of a guardianship assistance payment is in the child's best interests;
    • (E) the efforts made by OKDHS to discuss with the child's parent the relative guardianship assistance arrangements or why efforts were not made; and
    • (F) when the child's placement with the prospective relative guardian does not include siblings, a description of the reasons the child is separated from siblings during placement.

(g) Requirements for a permanent guardianship with state-funded benefits.

  • (1) A permanent guardianship may be established with state-funded assistance, when:
    • (A) the guardianship is in the child's best interests;
    • (B) all conditions listed in 10A O.S. § 1-4-709 are substantially satisfied;
    • (C) the child is not eligible for TANF Supported Permanency Program or the Title IV-E Subsidized Guardianship assistance; and
    • (D) the deputy director for programs, for good cause, approves state-funded payments to the guardian for the benefit of the child.  • 5
  • (2) The state-funded benefit is a monthly payment standard for the child, per OKDHS Appendix C-20  (.pdf, 8 pp, 229 KB), Child Welfare Services Rates Schedule.

(h) Court may order provisions within the permanent guardianship to provide for the child's safety and well-being.  Per 10A O.S. § 1-4-710, the court upon finding that grounds exist for a permanent guardianship, may order visitation with the parent, siblings, or other relatives of the child when contact is in the child's best interests, and any other provision necessary to provide for the child's continuing safety and well-being.

(i) Child support ordered with permanent guardianship.  Per 10A O.S. § 1-4-710, the court orders the parent to contribute to the support of the child pursuant to child-support guidelines as provided in 43 O.S. §§ 118 and 119.

(j) Permanent guardianship placement not supervised by OKDHS.  Per 10A O.S. § 1-4-710, the order appointing a permanent guardian may not require OKDHS supervision of the placement.

(k) Permanent guardianship placement review period.  Per 10A O.S. § 1-4-710, the permanent guardianship order:

  • (1) requires the placement be reviewed within one year after transfer.
  • (2) requires the permanent guardian to submit records or reports the court deems necessary for the one year review.
  • (3) does not require periodic reviews by the court after the one year review when the parties and court agree the reviews are not necessary to serve the best interests of the child, unless periodic reviews are otherwise required by the court.

(l) Child returned to OKDHS custody when permanent guardianship terminated.  When a permanent guardianship, established pursuant to the Oklahoma Children's Code, is terminated due to the guardian's abuse or neglect of the child, death, or inability to care for the child the court must order the child returned to OKDHS legal custody pending further hearing.

  • (1) OKDHS develops a new permanency plan for the child to present to the court within 30 calendar days from the permanent guardianship termination date.
  • (2) Unless parental rights have been terminated, the child's parent is notified and is entitled to participate in the upcoming permanency planning hearing.
  • (3) The court may order that reunification services again be provided to each parent or consider each parent for custody of the child with OKDHS supervision when the parent can prove conditions previously existing at the time the permanent guardianship was granted have been substantially corrected and reunification is the best alternative for, and in the best interests of the child.    • 10

INSTRUCTIONS TO STAFF 340:75-6-31.4

 

Revised 3-31-14

 

1.   (a) Requirements for establishing a permanent guardianship.  The court may establish a permanent guardianship between a child and a relative or other adult per Sections 1-4-709  and 1-4-710 of Title 10A of the Oklahoma Statutes (10A O.S. §§ 1-4-709 and 1-4-710), when the permanent guardianship is in the child's best interests and when all of the conditions listed in 10A O.S. § 1-4-709 are substantially satisfied.  The 10A O.S. § 1-4-709 conditions are detailed in (1) through (7) of this Instruction.

(1) The child was adjudicated a deprived child.

(2) The parent:

(A) consented to the permanent guardianship;

(B) had his or her parental rights terminated;

(C) failed to substantially correct the conditions that led to the adjudication of the child;

(D) was adjudicated as incompetent or incapacitated by a court;

(E) abandoned the child;

(F) failed to be identified or was not located despite reasonably diligent efforts to ascertain the whereabouts of the parent; or

(G) died.

(3) The child consents to the permanent guardianship when the court finds the child of sufficient intelligence, understanding, and experience to provide consent.

(4) Termination of the parent's parental rights is not legally possible, not in the best interests of the child, or adoption is not the permanency plan for the child.

(5) The child and proposed permanent guardian do not require protective supervision or preventive services to ensure the stability of the permanent guardianship.

(6) The proposed permanent guardian agrees not to return the child to the care of the person from whom the child was removed nor allow visitation without the court's approval.

(7) The child has resided or was placed with the proposed permanent guardian for at least the six preceding months or the proposed permanent guardian is a relative with whom the child has a relationship.

(b) Home assessment for proposed permanent guardian.  An assessment of the proposed permanent guardian's home is completed and a report is provided to the court regarding the proposed permanent guardian's suitability and whether permanent guardianship is in the best interests of the child.  The child welfare (CW) specialist:

(1) when the proposed permanent guardian is:

(A) a Bridge resource parent, updates Form 04AF003E, Resource Family Assessment - Bridge Family Profile; or

(B) not an Oklahoma Department of Human Services (DHS) resource parent:

(i) completes Form 04PP008E, Title 10A Permanent Guardianship Home Study; and

(ii) conducts a national criminal history records search in addition to the other background search requirements for each proposed permanent guardian and each adult household member; and

(2) includes in the report:

(A) information as to whether the proposed permanent guardianship is in the best interests of the child; and

(B) other information requested by the court of jurisdiction; and

(3) provides the report to the court as directed by the court or no later than two weeks prior to the permanent guardianship hearing.

(c) Permanent guardian rights and responsibilities.  A permanent guardian is vested with the rights and responsibilities set forth in Title 30 of the Oklahoma Statutes relating to the powers and duties of a guardian of a minor, other than those rights and responsibilities retained by the child's parent, if any, that are set forth in the decree of permanent guardianship.

2.   Monthly payment standard.  The monthly payment standard for guardianship payments is based on the child's age category per Appendix C-20, Child Welfare Services Rates Schedule, or Appendix C-1, Maximum Income, Resource, and Payment Standards, Schedule XVII, as applicable.

(1) When the child enters a different age category, the payment standard is adjusted.

(2) Difficulty of care rate payments are not included in the supported permanency, monthly payment standard.

(3) Other income, such as Social Security disability, death benefits, and child support reduces the amount of the payment standard, or if in excess of the payment standard, eliminates the child's eligibility for supported permanency, per Oklahoma Administrative Code (OAC)  340:10-3-26.

3.   Medical coverage during guardianship.  The child's medical coverage remains SoonerCare Choice while the child remains in a legal guardianship.  Transportation for medical appointments is available through the SoonerRide program.

4.   Process to determine guardianship funding type.

(1) Prior to considering supported guardianship, either through Supported Permanency, Title IV E, or State-Funded guardianship assistance, the CW specialist:

(A) facilitates a Family Team Meeting (FTM), per OAC 340:75-6-31.1 and explains the differences between adoption and guardianship to the proposed permanent guardian and child, as appropriate for the child's age, to ensure the child and proposed permanent guardian understand the various forms of permanency available when considering the child's long-term best interests; and

(B) during the FTM, develops recommendations to present to the district attorney or child's attorney for incorporation into the guardianship order that include:

(i) parent-child visitation;

(ii) appropriate visitation between siblings who are not placed together; and

(iii) child support.

(2) When the CW specialist and CW supervisor determine permanent guardianship is the appropriate permanency plan and assistance is needed, the CW supervisor submits a request for funded guardianship to the Permanency Planning (PP) Program Unit.

5.   Special review.  The programs deputy director reviews the permanent guardianship funding request when the child is 11 years of age or younger.  A permanency plan of guardianship is not appropriate for the child 11 years of age and younger, unless the programs deputy director determines the child's best interests are met by a funded guardianship and termination of parental rights is legally impossible, not in the best interests of the child, or adoption is not the recommended permanency plan.

6.   Protocol for Supported Permanency Temporary Assistance for Needy Families (TANF) subsidized guardianship.  The PP Program Unit notifies the CW specialist that the child is eligible for guardianship assistance.

(1) The CW specialist obtains court, and when appropriate, the child's approval to proceed with permanent guardianship as the permanency plan.

(2) When a Title 10A permanent guardianship is not being filed by the district attorney or the child's attorney, and it is necessary for a retained attorney to file a Title 30 guardianship, the CW specialist:

(A) secures authorization for the retained attorney's services and payment through the Finance system; and

(B) sends the authorization form to the retained attorney for reimbursement of attorney fees and court costs not to exceed $2000.  Detailed documentation of attorney fees and court costs must accompany reimbursement requests.  Requests for attorney fees and court costs over $500 must be approved by the PP Program Unit.

(3) The CW specialist:

(A) authorizes contingency funds for payment of attorney fees and court costs, per OAC 340:75-1-28 using the object code designated for attorney fees for the TANF Supported Permanency program.  These funds are only used for a relative obtaining permanent guardianship for supported permanency;

(B) emails the PP Program Unit the court order and completed Form 04PP006E, Supported Permanency Referral, within five calendar days of the relative assuming legal guardianship in order to obtain an authorization letter;

(C) attaches information regarding each child's identified needs and suggestions for continued services for the family and attaches the:

(i) order transferring legal responsibility to the permanent guardian; and

(ii) PP Program Unit email authorization;

(D) informs the relative to contact the local DHS office to complete the TANF application for supported permanency when the relative has not had a personal contact from an Adult and Family Services worker within 10 calendar days of assuming legal guardianship; and

(E) closes the CW case upon completion of the custody transfer and referral to TANF.

7.   Protocol for Title IV-E subsidized guardianship.

(1) The CW specialist obtains court, and when appropriate, the child's approval to proceed with permanent guardianship as the permanency plan.  The subsidized guardianship assistance agreement must be approved by the PP Program Unit before the court enters the guardianship order.

(2) When a Title 10A permanent guardianship is not being filed by the district attorney or the child's attorney and it is necessary for a retained attorney to file a Title 30 guardianship, the CW specialist requests the purchase authorization form from the PP Program Unit for the reimbursement of attorney fees and court costs not to exceed $2000.  Detailed documentation of attorney fees and court costs must accompany reimbursement requests.  Requests for attorney fees and court costs over $500 must be approved by the PP Program Unit.

(3) The PP Program Unit emails Forms 04MP048E, Request for Title IV-E Subsidized Guardianship Assistance, and 04MP049E, Title IV-E Subsidized Guardianship Agreement, to the placement provider to sign and return prior to permanent guardianship being ordered.

(4) The CW specialist notifies the PP Program Unit no later than five calendar days after the transfer of legal responsibility and includes a copy of the guardianship order.

(5) The CW specialist closes the CW case upon completion of the transfer of legal responsibility and notification from the PP Program Unit.

8.   Protocol for state funded guardianship.  The programs deputy director reviews each state funded request for guardianship assistance.  After notification that state funded guardianship funding is available, the CW specialist:

(1) obtains court, and when appropriate, the child's approval to proceed with permanent guardianship as the permanency plan;

(2) requests the purchase authorization form from the PP Program Unit for the reimbursement of attorney fees and court costs not to exceed $2000 when a Title 10A permanent guardianship is not being filed by the district attorney or the child's attorney and it is necessary for a retained attorney to file a Title 30 guardianship.  Detailed documentation of attorney fees and costs must accompany reimbursement requests.  Requests over $500 for attorney fees and court costs must be approved by the PP Program Unit;

(3) requests the PP Program Unit email Forms 04PP007E, Request for State Funded Guardianship Assistance, and 04MP044E, State Funded Guardianship Assistance Agreement, to the placement provider for signature and return prior to permanent guardianship being ordered;

(4) obtains final approval from the PP Program Unit for state funded permanent guardianship assistance prior to the guardianship order being entered by the court;

(5) notifies the PP Program Unit no later than five calendar days after the transfer of legal responsibility and includes a copy of the guardianship order;

(6) informs the permanent guardian to contact the PP Program Unit when the guardian has not received a guardianship payment within 10 calendar days after the month the guardian assumes legal responsibility; and

(7) closes the CW case upon completion of the transfer of legal responsibility and notification from the PP Program Unit.

9.   Fees for attorneys representing a proposed guardian in a Title 30 guardianship.  The district attorney or child's attorney files motions for a Title 10A permanent guardianship in the deprived case.  When it is necessary for a retained attorney to file a Title 30 guardianship proceeding, attorney fees and court costs for the Title 30 guardianship require special approval from the PP Program Unit and apply to each guardianship proceeding that results in a transfer of legal responsibility, but not to each child.

10. Termination or modification of a permanent guardianship.  A permanent guardianship may be terminated or modified by the court per Title 10A or Title 30 of the Oklahoma Statutes, as applicable, based upon clear and convincing evidence of a substantial change in material circumstances and the child's best interests.

(1) Parental reunification.  The court may order reunification services upon a showing that the parent is presently able and willing to properly care for the child and conditions that existed when the permanent guardianship was granted have been substantially corrected or reunification is the best alternative for the child.

(2) Return to DHS custody.  10A O.S. § 1-4-711 requires that the child be returned to DHS legal custody and a permanency hearing held within 30 calendar days when the permanent guardianship is terminated due to a substantial change in material circumstances that includes, but is not limited to, the:

(A) permanent guardian is unable to properly care for the child;

(B) child has been abused or neglected while in the care of the permanent guardian; or

(C) child's permanent guardian is deceased.

(3) When the termination of the permanent guardianship results in removal of the child from the permanent guardian's home, the court determines whether:

(A) the child's continuation in the guardian's home is contrary to the child's welfare; and

(B) reasonable efforts were made to prevent the child's removal from the home; or

(C) an absence of efforts to prevent the child's removal from the home is reasonable, due to an emergency.

 

 

 

 

 

Last Updated:  4/14/2014