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  DFCS Online Policies & Procedures

  DFCS Online Policies & Procedures

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   <<< Return to OPP Table of Contents [an error occurred while processing this directive]
Handbook 11: Concurrent Planning and Adoption
11-9 Legal Guardianship
Concurrent Planning and Adoption
11-9 Legal Guardianship
Reference Points
Overview
Factors for Social Workers to Consider Prior to Establishing a Guardianship
Guardian's Responsibilities
Financial Disclosure
Assessing the Prospective Guardian
Social Worker Responsibilities Before the Guardianship is Established
DFCS Policy on Closing Guardianship Cases
Preparing the 366.26 Selection and Implementation Report
The 366.26 Selection and Implementation Hearing
Social Worker Responsibilities After Guardianship is Established
Guardian's Change of Residence
Future Service Needs of the Minor
Reinstating Dependency for a Dismissed Guardianship Case
Contact
Other References


Reference Points
Effective Date: In effect
Last Updated: 10/17/13
 Legal Basis:
Popup Window Welfare and Institutions Codes (WIC)§ 360, 366.4, 366.26, 728
 Non CWS/CMS Forms:
MS Word Guardianship Transmittal (SCZ 1589c) (7/09) Updated!
MS Word Acknowledgement of Rights and Responsibilities of Legal Guardian (SCZ 640) (10/09) Updated!
MS Word Placement Address/Change Form (SCZ 17)
PDF

Guardianship Pamphlet (JV 350) :

English

Spanish

Vietnamese

Chinese    

  Korean
PDF Agency-Relative Guardian Disclosure (Kin-GAP) (SOC 369)
MS Word Foster Child's Data Record and AFDC-FC Certification (SOC 158) (Obtain from PTT)
 CWS/CMS Forms:
PDF Letters of Guardianship of the Person (JV 330)


Overview  

When parents have been unable to reunify and adoption is deemed not to be an appropriate plan, legal guardianship may be considered as a permanent plan for the child. The purpose of appointing a legal guardian is to establish permanency for the child as early as possible after failure to reunify with parents. The goal of a permanent plan is to provide a stable, safe environment in which a child can grow to majority, free from emotional and physical abuse, neglect and exploitation.

Guardianship is the appropriate plan when a child is living with a relative, NREFM or foster parent who is unable or unwilling to adopt the child because of exceptional circumstances, which do not include an unwillingness to accept legal responsibility for the child, and the caregiver is willing to provide the child with a stable and permanent home. Early on in the process of considering guardianship as the permanent plan, financial considerations need to be addressed.

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Factors for Social Workers to Consider Prior to Establishing Guardianship  
  • The guardian’s authority is temporary, that is, it can be set aside by court action or ends when the minor reaches majority (18 years of age), marries or dies before the age of 18. Guardianships established in California are not considered valid in some states, should the guardian family wish to move out of state the guardianship may need to be re-established in the new state of residency.
  • Most often when legal guardianship is ordered, Court dependency is dismissed.
  • Under guardianship, parental rights remain intact, with physical and legal custody going to the guardian.
  • Birth parents continue to have the financial responsibility to support the child.
  • Under guardianship, birth parents have a right to continued visitation unless the court has deemed otherwise.
  • Birth parents have the right to petition the court to set aside the legal guardianship in order to regain custody of the child, if their circumstances change.
  • Guardians may return to court to have the guardianship set aside.
  • Unauthorized return of the child to the birth parent could occur.
  • Guardians may wish to return to court in order to file a petition that would initiate proceedings to adopt the child should their circumstances change. See OPP Chapter 11-10: Guardianship to Adoption.
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Guardian's Responsibilities  

At the time that the guardianship is ordered by the court:

  • Guardians become responsible for making the following decisions for a child:
    • Consent for medical care.
    • Choice of educational programs.
    • Permission to enlist in military service.
    • Consent to the minor obtaining a driver’s license.
    • Permission to marry.
     
  • The guardian is generally liable for damages resulting from a minor’s misconduct or malicious mischief, up to the extent permitted by law, which is the same as a parent’s liability.
  • If the guardian signs for a driver’s license, the guardian assumes civil liability. See OPP Chapter 20-6: Drivers Licenses for Foster Youth, for complete details.
  • The Juvenile Court may order the guardian to be responsible for carrying out special conditions concerning the child’s welfare.
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Financial Disclosure

 

Financial issues sometimes play a determining role in whether a caretaker agrees to assume guardianship of a child. It is the responsibility of social workers to be familiar with the financial changes that a prospective guardian will incur once a legal guardianship is established and to explain these changes to the prospective guardian.

  • Federal AFDC-FC may be claimed for an otherwise eligible child placed with a related or non-related legal guardian ONLY WHEN A DEPENDENCY ORDER IS IN EFFECT.
  • Relative guardians
    • Children living with related legal guardians, when the dependency order is dismissed, LOSE BOTH FEDERAL AND STATE foster care financial eligibility for the AFDC-FC program. When dependency is dismissed, relatives may apply to receive either CalWORKs or Kin-GAP according to each program’s requirements. For detailed information about Kin-GAP see OPP Chapter 18-8: KinGAP.
      • Relative guardians are only eligible for KinGAP if the child has been in placement with them for at least 6months.
       
    • CalWORKs recipients are not eligible for Special Care Increment payments.
    • Kin-GAP+ recipients can continue to receive the Special Care Increment, as long as it was in place at the time dependency is dismissed.
    • Social workers may consult with the Foster Care Eligibility Bureau for the child to determine the rate of payment after the guardianship is established.

 

  • Non-relative guardians
    • State AFDC-FC may only be paid for an otherwise eligible child who is placed with a non-related legal guardian.
    • Non-relative legal guardians can receive the State AFDC- FC rate for the child after dismissal of dependency.
      • For guardians whose former status was as a Foster Family Agency (FFA), upon the order of legal guardianship, the financial assistance is at  the State AFDC-FC (case dismissed) or Federal AFDC-FC rate (case not dismissed). Once the guardianship is in place, the guardians are no longer eligible for the previously received, higher FFA rate, regardless of whether or not dependency is maintained. Consult with your supervisor before initiating a guardianship for children who are in need of FFA services.
        • For minors who are in need of special care and supervision, the Special Care Increment (SCI) payments should be set up BEFORE dependency is dismissed.

         

Comparison of the State and Federal Foster Care, KinGAP and CalWORKS rates:

Caretaker's Status before Guardianship was Established

Child is Placed with:

After Guardianship is Established

and Dependency is Dismissed

Change in Payment

Rate. (for Detailed Accounting

See Charts Below)

After Guardianship    is Established and Dependency Is Not Dismissed

Non related foster family receiving AFDC-FC (Federal)

Guardians apply for AFDC-FC (State) Julian Office

Unchanged

Payments remain unchanged

NREFM receiving AFDC-FC (Federal)

NREFMs apply for AFDC-FC (State) Julian Office

Unchanged

Payments remain unchanged

FFA foster family

Guardians apply for AFDC-FC (State) Julian Office

Substantial DECREASE

Payments DECREASE from FFA rate to AFDC-FC rate

Relative family receiving AFDC-FC

Relative guardians apply for KinGAP Julian Office or CalWORKS District Office

KinGAP -Unchanged

CalWORKS -Decrease

Payments remain unchanged

Relative family receiving CalWORKS

Relative guardians apply for KinGAP Julian Office or CalWORKS District Office

KinGAP -Increase

CalWORKS -Unchanged

Payments remain unchanged
  • Please note that relative guardians are eligible for KinGAP only if the child has been in placement with them for at least 6 months.

 

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Assessing the Prospective  Guardian  

The social worker must assess the proposed guardian(s) to assure that they will be able to advocate for the child's best interests. This social history may include but is not limited to: age, marital status, family composition, education, employment, financial stability, religious practice, etc. Other items that should be listed in the social history of the proposed legal guardian are criminal records and prior referrals for child abuse and neglect, their capacity to meet the child's needs, their commitment to the child and their understanding of the legal and financial rights and responsibilities of legal guardianship.

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Social Worker Responsibilities Before Guardianship is Established  

The social worker is responsible for educating the family about the financial, legal and emotional responsibilities of a guardianship, as well as for completing the initial portion of the legal requirements for the juvenile court. See OPP Chapter 8-13: Selection and Implementation (366.26) Hearings.

Social workers:

  • Verify criminal and child abuse record checks for :
    • The proposed guardians
    • Individuals 18 years and older residing in the home. Criminal clearance must also be obtained for:
    • Persons age 18 years (other than a professional providing services to the child) known to the social worker to have significant contact with the child.
    • Minors over the age of 14 years living in the caregiver’s home who the social worker believes may have a criminal record.
    • Respite care providers for the applicant guardians.          
  • Meet with the child's eligibility worker and/or the Payment Assistance Center (PAC) eligibility intake worker to determine if any financial changes will be incurred once guardianship is established.
    • If the guardian is a relative, complete the Agency-Relative Guardian Disclosure form, SOC369 in consultation with a PAC eligibility intake worker.
    • Meet with proposed relative guardian to go over and sign form SOC369.
  •  
  • Review the Guardianship Pamphlet JV350 with the proposed guardians.
    • Leave copy of pamphlet with proposed guardians.
     
  • Review and obtain signatures on the Acknowledgement of Rights and Responsibilities of Legal Guardian SCZ640 with the proposed guardians.
    • Leave copy with the proposed guardians and place a signed copy in the child's case file
  • Reassess the service needs of the child and verify that the services are in place or that the family is referred to services to support the success of the guardianship.
  • Submit the following to County Counsel within one week after the Status Review hearing at which the Selection and Implementation Hearing (366.26) for Legal Guardianship is set:
    • Completed Notice of Hearing SC1423 notice worksheet.
    • Copy of the child’s birth certificate (certified copy is not required).
    • Publication Request (SCZ1620), if applicable.
    • Copy of the search request results from the district attorney’s office, if applicable.
    • Declaration of Due Diligence, if applicable.
      • See OPP Chapter 9-4: Due Diligence Searches and Declarations.
      • Consult with County Counsel regarding the noticing requirements necessary for the circumstances of your particular case if necessary.
  • Prepare the 366.26 assessment court report for legal guardianship. It is essential that all details outlined in the court report be completed without exceptions. Any omissions of the legal requirements can be the basis for an appeal at a later date to overturn the guardianship. In particular address fully the “Suitability of the Proposed Legal Guardians".  This allows the court to make its finding as to the suitability of the proposed legal guardian.
  • Attaches proper recommendation from the Court Recs Library: 701.doc or 702.doc, depending on the family’s circumstance. The majority of legal guardianships will culminate in a termination of Juvenile Court Dependency.
  • For a “Relative” guardianship a Kinship Guardianship Assistance Agreement signed by the proposed guardian must be attached to the 366.26  Court report.
  • Complete the Guardianship Transmittal, SCZ 1589c, attach:
    • Birth Certificate of the child
    • Original Letters of Guardianship JV 330, signed by the proposed guardians in blue ink and submit to County Counsel legal secretaries by the date of the 366.26 Hearing.
    • DO NOT ATTACH TO 366.26 COURT REPORT
  •  
  • Assure ongoing services needed by the minor and family are in place to continue once guardianship is in place and court dependency is dismissed.
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DFCS Policy  on Closing Guardianship Cases  

It is the policy of the Department of Family and Children’s Services (DFCS) that all cases in which a legal guardianship is established  be closed for services, unless there is concern in one of the three following areas:

1. Safety of the child

2. Need for ongoing case management services

3. Financial issues

 

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Preparing the Selection and Implementation Report  

In preparing the 366.26 Selection and Implementation Report recommending legal guardianship, the social worker:

  • Understands the legal requirements that, if omitted, could cause the guardianship to be delayed/ continued.
  • Refer to the section above “Assessing the Guardian"
  • The social worker recommends dismissal, except in rare cases previously reviewed and approved by the social work supervisor.

Please note that in very rare circumstances a guardianship can be established at Dispositional Hearing. Please consult County Counsel about such a plan, remembering that for a relative to receive Kin-GAP funding after the guardianship is established the child must have been in placement with them for the previous 12 months.

 

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The 366.26 Selection and Implementation Hearing  

At the Selection and Implementation Hearing the court, upon recommendation from the social worker, makes the order for the legal guardianship.

The .26 Hearing is held within 120 days of the hearing in which the recommendation is made to set a hearing to select and implement a permanent plan for the child. See OPP Chapter 8-13: Selection and Implementation (366.26) Hearings.

The minor and the proposed legal guardians attend the hearing unless there is a compelling reason for them not to attend, and it has been previously arranged with County Counsel. The legal clerks in the office of the County Counsel will prepare the, Orders Under Welfare and Institutions Code Section 366.26, form JV-320, prior to the court hearing. The social worker's recommendations then get attached to the JV-320. After the judge appoints the legal guardians by signing these court orders, the Letters of Guardianship JV-330, will be available for signature at the end of the court hearing, if not previously signed, by the guardians.

These orders, along with a copy of the official Letters of Guardianship (stamped with the state seal and signed by the County Clerk) are mailed to the guardians and ponied to the social worker.

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Social Worker Responsibilities After the Guardianship is Established  

In order to assure the continuity of financial assistance for the guardians, social workers :

  • Complete the Placement/Address Change Form, SCZ17, Section I, Placement Authority and Episode End, by checking the box marked Guardianship.
  • Submit the SCZ17 form to the Placement Tracking Team (PTT) on the day guardianship is ordered by the court.
    • PTT will send social worker 2 copies of the Foster Child's Data Record and AFDC-FC Certification, SOC 158 form, one to be signed immediately and returned to PTT within 24 hours, the other for the casework file.
  •  
  • Send to the eligibility worker:
    • An official copy of the Letters Of Guardianship of the Person - Juvenile, stamped with the state seal, signed by the County Clerk.
    • A copy of the Orders Under Welfare and Institutions Code Section 366.26 JV-320 with attached social worker recommendations.
     
  • Inform non-relative guardians to contact their eligibility worker in order be to set up continued payments.
  • Refer relative guardians choosing to apply for CalWORKS, to their Department of Employment and Benefit Services (DEBS) District Office, in order to apply for benefits.
  • Follow procedures to initiate KinGAP for relative guardians choosing to apply for KinGAP.
  •  
  • For cases in which dependency is not dismissed, make sure a copy of the 366.26 Hearing Report has been received by the foster care eligibility worker.
    • Federal AFDC-FC can continue to be paid for relative and non- relative cases that maintain dependency.

FFA rates no longer apply to a child who has a legal guardian whether or not dependency is maintained, because following guardianship, the child is ordered placed with the guardian and not the FFA.

For minors who will continue to receive a Special Care Increment (SCI) or have an SCI Assessment in process, social workers inform the guardians that six month assessments will be completed in order to document the child’s current status by a DFCS social worker. 
     
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Guardian’s Change of Residence  

As long as the guardian resides in the state of California, the guardian may continue to receive AFDC- Foster Care, CalWORKS or Kin-GAP benefits for relative and non-relative caretakers. The guardian may decide in which community the child will reside, anywhere in the state of California. Moving to another state may have the following consequences:

  • The guardianship may have to be re-established in the state in which the caretaker moves to with the child.
    • Most states have their own rules about guardianship and some states do not recognize a guardianship granted in California. In this case the California guardianship would expire four months after the child leaves the state.
  •  
  • Non-relative guardians may not receive CalWorks/AFDC-FC benefits.
    • Some states do not pay CalWORKS/AFDC-Foster Care benefits to non- relative guardians.
     
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Contact  

Foster Care Eligibility Bureau, 5th floor

373 W Julian, San Jose CA 95510

408-271-7400

 

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Future Service Needs of the Minor  

Before closing the service case of the minor with a new guardianship the social worker:

  • Assures that the child is receiving services or has been referred for services for any identified needs.
  • Gives the guardians information regarding:
    • Programs offered through the DFCS Family Resource Centers such as Youth Leadership and Healthy Anger classes.
    • ILP services that the child may receive upon reaching the age of 16.5.
A list of resources available in the community, including the Santa Clara County resource web site, www.211scc.org,

 

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Reinstating Dependency for a Dismissed Guardianship Case  

As life circumstances shift and children progress through developmental stages, it can in rare instances become necessary for Juvenile Dependency to become reinstated, usually at the request of the legal guardians.

 

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Section   Section Text Goes Here...
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Other References  
PDF A Guide to Permanency Options for Youth
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