OKDHS - OAC 340:75-6-31.4. Permanent guardianship, non-funded or funded through supported permanency (TANF), IV-E, or state subsidy

340:75-6-31.4. Permanent guardianship, non-funded or funded through supported permanency (TANF), IV-E, or state subsidy

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Revised 7-1-11

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

(1) 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:
- (A) the suitability of the proposed guardian; and
- (B) whether guardianship is in the child's best interests. • 1
(2) When a permanent guardianship is terminated due to the guardian's abuse or neglect of the child, the guardian's death or inability to care for the child, the court must order the child returned to OKDHS legal custody pending further hearing.
- (A) OKDHS develops a new permanency plan for the child to present to the court within 30 days from the permanent guardianship termination date.
- (B) Unless parental rights have been terminated, the child's parent(s) are notified and are entitled to participate in the new permanency planning hearing.
(3) The court may order reunification services again be provided to the parent(s) or consider the parent(s) 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.
(4) A permanent guardianship may be non-funded or funded through:
- (A) Supported permanency through Temporary Assistance for Needy Families (TANF);
- (B) Title IV-E; or
- (C) state funded.

(b) Supported permanency. When a child in Oklahoma Department of Human Services (OKDHS) custody is placed in a paid kinship foster home with a relative who resides in Oklahoma and meets the specified degree of relationship as defined by the Temporary Assistance for Needy Families (TANF) program, per OAC 340:10-9-1 (a), supported permanency may be explored, subject to the availability of funds. When a child is not eligible for the TANF Supported Permanency Program, the director of the Children and Family Services Division (CFSD), for good cause, may waive an eligibility requirement of the TANF Supported Permanency Program and approve a supported guardianship payment for the child, provided the payments to the guardian are pre-authorized by CFSD and funded with non TANF dollars. • 1

(1) Supported permanency is appropriate when the:
- (A) 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 CFSD director reviews and may, for good cause, approve supported permanency for a child eight years of age through 11 years of age and his or her sibling(s) when the child has no older eligible sibling; • 6
- (B) court makes a finding that reasonable efforts to reunite are not required or have been made and failed, and the permanency plans of reunification and adoption have been ruled out;
- (C) relative has completed all requirements to be an approved OKDHS foster home;
- (D) child is currently residing with the relative in Oklahoma and has been for four of the previous six months;
- (E) relative is willing to assume legal responsibility for the child; and • 6
- (F) court and, if appropriate, the child are in agreement with the plan for the relative to obtain legal responsibility for the child.
(2) Supported permanency provides the relative with:
(A) limited monetary reimbursement to an attorney 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; • 5
(C) a medical card for the child; and • 6
(D) an assigned Family Support Services worker who provides referrals for services, if needed.

(c) Title IV-E Subsidized Guardianship. Guardianship assistance is available to any child who 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. Relative guardianship eligibility requirements are met when the:

(1) 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 welfare of the child and is IV-E eligible per OAC 340:75-13-13 for at least six consecutive months;
(2) 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;
(3) permanency plans of reunification and adoption have been ruled out; • 7
(4) relative has completed all requirements to be an approved OKDHS foster home;
(5) child is currently residing with the relative and has been for six consecutive months;
(6) relative is willing to assume legal responsibility for the child and has a strong commitment to permanently care for the child;
(7) child who is 14 years of age or older has been consulted regarding the kinship guardianship arrangement;
(8) child demonstrates a strong attachment to the prospective relative guardian; and
(9) prior to the transfer of legal responsibility, a written agreement, Form 04MP049E, Title IV-E Subsidized Guardianship Agreement, is signed by OKDHS and the prospective relative guardian, outlining the assistance provided to the relative that includes:
- (A) a monetary reimbursement to an attorney for the legal fees and costs that will be incurred in the transfer of legal responsibility of the child not to exceed $500;
- (B) a monthly payment for the child in an amount that is consistent with the monthly payment standard, per OKDHS Appendix C-20, Children and Family Services Division Rates Schedule, not to exceed the foster care maintenance payment the child would have received if still in care;
- (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 needs of the child;
- (D) a medical 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 that the agreement will remain in effect if the relative guardian moves to another state;
(10) the case plan describes:
- (A) how the child meets the eligibility requirements;
- (B) the steps the agency has taken to determine that return to the home or adoption is not appropriate;
- (C) the efforts OKDHS has 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(s) 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.

INSTRUCTIONS TO STAFF 340:75-6-31.4

Revised 7-1-11

1. (a) 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), if the guardianship is in the child's best interest and when all of the conditions listed in 10A O.S. § 1-4-709 are substantially satisfied.

(1) The child has been adjudicated a deprived child.

(2) The parent has:

(A) consented to the guardianship;

(B) had his or her parental right terminated;

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

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

(E) abandoned the child;

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

(G) died.

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

(4) Termination of the parent's rights is either 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 prospective guardian do not require protective supervision or preventive services to ensure the stability of the guardianship.

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

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

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

(1) when the proposed permanent guardian is a Bridge resource parent, updates Form 04AF003E, Resource Family Assessment - Bridge Family Profile; or

(2) completes Form 04PP008E, Proposed Permanent Guardian Assessment of Non-Resource Parent, when the proposed guardian is not an OKDHS resource parent; and

(3) includes in the report:

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

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

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

(c) A permanent guardian is vested with all the rights and responsibilities as 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.

(d) A permanent guardianship may be terminated or modified.

(1) Section 1-4-711 of Title 10A of the Oklahoma Statutes allows the child to be returned to OKDHS legal custody if there has been a substantial change in circumstances and the permanent guardianship is terminated. Substantial change of circumstances includes, but is not limited to the:

(A) parent is presently able and willing to properly care for the child;

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

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

(D) permanent guardian of the child is deceased.

(2) When the modification of the permanent guardianship results in removal of the child from the home of the guardian, the court determines whether:

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

(B) reasonable efforts have been made to prevent the removal of the child from the home; or

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

2. (a) Guardianship payment. When the Child Welfare (CW) worker and supervisor determine guardianship is the appropriate permanency plan and a guardianship payment will be requested, the CW supervisor contacts the Children and Family Services Division (CFSD) permanency planning section to obtain guidance. When the child is not eligible for either Title IV-E or supported permanency guardianship assistance, the permanency planning section consults with the CW supervisor to determine if approval of a state-funded guardianship payment by the CFSD director is requested. When the CFSD director approves state funded guardianship assistance, the CW worker completes the steps as outlined in Instructions to Staff # 8.

(b) Exploration of permanency options. Prior to the consideration of a supported guardianship, either through Title IV-E, supported permanency, or state funded guardianship assistance, the child's CW worker facilitates a family team meeting (FTM), per OAC 340:75-6-31.1 and explains the differences between adoption and guardianship to the child, as appropriate for the child's age, and foster parent in order that the child and foster parent understand the various forms of permanency available in consideration of the long-term best interests of the child. In addition, the CW worker provides the foster parent with Oklahoma Department of Human Services (OKDHS) Publication No. 01-40, Supported Permanency, and OKDHS Publication No. 03-18, Permanent Connections.

(c) Eligibility for supported permanency. To be eligible for supported permanency a child must be:

(1) 12 years of age or older;

(2) between eight and 11 years of age and have the prior approval of the CFSD director; or

(3) a sibling of an eligible child residing in the same relative foster home.

(d) Funding and approval protocol.

(1) Within five days of the determination that supported permanency is an option for the child the CW worker e-mails the CFSD Permanency Planning Section to determine availability of funding and, when applicable, approval of the CFSD director for a child between eight and 11 years of age;

(2) The CFSD permanency planning staff, within five days of the request from the CW worker, notifies the CW worker of funding, and when applicable, the decision of the CFSD director.

(e) supported permanency protocol for the CW worker. After all other forms of permanency have been explored and supported permanency is determined appropriate, the CW worker e-mails CFSD Permanency Planning Section to verify the availability of funding. Upon notification of available funds and approval, when applicable, the CW worker:

(1) obtains the approval of the court and, if appropriate, the child to proceed with guardianship as the permanency plan;

(2) assists the relative in locating an attorney to obtain legal responsibility;

(3) obtains authorization for the attorney's service and payment through the Finance system, obtains required signature(s), and sends the authorization form to the attorney. There is a $500 limit for the reimbursement of attorney fees and court costs.

(A) The worker authorizes contingency funds, per OAC 340:75-1-28, using the object code designated for attorney fees for the Temporary Assistance for Needy Families (TANF) Supported Permanency program.

(B) These funds are only used for a relative obtaining guardianship for supported permanency;

(4) addresses visitation during the FTM with parents and siblings who are not placed together, if appropriate, and child support and provides recommendations to the attorney for inclusion in the guardianship order;

(5) e-mails the Permanency Planning Section within five calendar days of the relative assuming legal responsibility to obtain an e-mail authorization to attach to Form 04PP006E, Supported Permanency Referral;

(6) makes a referral to TANF using Form 04PP006E within five calendar days of the relative assuming legal responsibility.

(A) The CW worker includes in the referral or attaches information regarding the identified needs of the child(ren) and suggestions for continued services for the family and attaches:

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

(ii) e-mail authorization from the Permanency Planning Section; and;

(iii) when applicable, e-mail approval from the CFSD director, for a child between eight and 11 years of age.

(B) A face-to-face staffing between the CW worker and the Family Support Services (FSS) worker is recommended;

(7) informs the relative to contact the local human services center to complete the TANF application for supported permanency if the relative has not had a personal contact from an FSS worker within ten calendar days of assuming legal responsibility; and

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

3. Types of guardianship. The transfer of legal custody may be through a permanent, guardianship under Title 10A or traditional guardianship under Title 30 of the Oklahoma Statutes.

4. Attorney fees. The $500 limit applies to each transfer of legal responsibility, not to each child. Requests are not made to override the $500 limit when a relative is obtaining legal responsibility for more than one child. When there are multiple relatives obtaining legal responsibility for different children in the case, each legal action has a limit of $500.

5. Monthly payment standard. The monthly payment standard is based on the age of the child and current foster care rate. The payment standard is automatically adjusted when the child enters a different age category to an amount that is consistent with the applicable foster care maintenance payment for the same age foster child. Difficulty of care rate payments are not included in the supported permanency monthly payment standard. 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 OAC 340:10-3-26.

6. Medical coverage. The child's medical coverage remains SoonerCare Choice. Transportation for medical appointments is available through the SoonerRide program.

7. The selection of guardianship as the permanency plan is not appropriate for children, ages 11 and under, unless, upon review by the director of the CFSD, conditions show the best interest of the child is met by a guardianship and adoption is not an appropriate option.

8. State funded guardianship protocol for the CW worker. Upon notification of approval of the CFSD director and funding availability, the CW worker:

(1) obtains the approval of the court and, if appropriate, the child to proceed with guardianship as the permanency plan;

(2) assists the prospective guardian in locating an attorney to obtain legal responsibility;

(3) obtains authorization for the attorney's service and payment by requesting a purchase authorization from the Permanency Planning Section and sends the purchase authorization form to the attorney. There is a $500 limit for the reimbursement of attorney fees and court costs;

(4) during the FTM addresses visitation with parents and siblings who are not placed together, if appropriate, and child support and provides the recommendations to the attorney for inclusion in the guardianship order;

(5) provides the prospective guardian with Form 04PP007E, Request for State Funded Guardianship Assistance, and submits completed form to Permanency Planning Section no later than seven calendar days prior to the hearing to transfer legal responsibility to the legal guardian;

(6) notifies the Permanency Planning Section no later than five days after the transfer of legal responsibility and provides a copy of the guardianship order;

(7) informs the relative to contact the Permanency Planning Section if the legal guardian has not received a guardianship payment within 10 calendar days after the month the legal guardian assumes legal responsibility; and

(8) closes the CW case upon completion of the transfer of legal responsibility and notification to the Permanency Planning Section.

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