22.11 Guardianship in Child Protective Services

Georgia State Seal

Georgia Division of Family and Children Services
Child Welfare Policy Manual

Chapter:

(22) Kinship

Policy Title:

Guardianship in Child Protective Services

Policy Number:

22.11

Previous Policy Number(s):

5.6

Effective Date:

March 2023

Manual Transmittal:

2023-01

Codes/References

O.C.G.A. § 15-11-13 Appointment of Guardian or Conservator
O.C.G.A. § 15-11-14 Transfers from Probate Court
O.C.G.A. § 15-11-26 Best Interests of Child
O.C.G.A. § 15-11-29 Protective Orders
O.C.G.A. § 15-11-29.1 Parental Accountability; Court Orders; Enforcement
O.C.G.A. § 15-11-30 Rights and Duties of Legal Custodian
O.C.G.A. § 15-11-240 Appointment of Permanent Guardian; Jurisdiction; Findings
O.C.G.A. § 15-11-242 (a)(3) Effect of Guardianship Order
O.C.G.A. § 29-2-5 Petitions for Temporary Guardianship; Requirements of Petition
O.C.G.A. § 29-2-6 Parental Consent to Temporary Guardianship; Failure to Consent; Minor’s Preference
O.C.G.A. § 29-2-7 Powers of Temporary Guardians; Medical Insurance Coverage for Minors
O.C.G.A. § 29-2-8 Termination of Temporary Guardianship; Petition for Termination of Guardianship
O.C.G.A. § 29-2-17 Petition for Appointment of Permanent Guardian; Requirements of Petition; Notice

Requirements

The Division of Family and Children Services (DFCS) will:

  1. Have the option to recommend guardianship through probate or juvenile court when guardianship is the most appropriate plan to achieve permanency for a child in an open Child Protective Services (CPS) case, and the following case circumstances apply:

    1. Chronic parental absence is demonstrated;

    2. Chronic un-rehabilitated parental concerns;

    3. A history of caretaking for the child(ren) by the proposed guardian;

    4. Reasonable efforts were made to maintain the family unit and prevent the unnecessary removal of the child from the home; and

    5. A Kinship Assessment was completed confirming the ability of the proposed guardian to provide long term supervision and care for the child(ren).

    In cases involving children under the age of ten other permanency options shall be strongly considered and pursued before a guardianship is considered.

  2. Afford all rights under the Indian Child Welfare Act (ICWA) to any child who is a member of a federally recognized Indian Tribe, or eligible for membership and has a biological parent who is an enrolled member and is subject to removal, placement and/or any other legal action involving DFCS to promote the stability and security of Indian Tribes and their families (see policy 1.6 Administration: Indian Child Welfare Act (ICWA) and Transfer of Responsibility for Placement and Care to a Tribal Agency).

  3. Conduct a Case Evaluation to track and measure progress toward case plan outcome achievement, prior to completing a petition for guardianship.

  4. Provide full disclosure regarding guardianship to the parent/legal guardian and proposed guardian.

  5. Obtain written approval from the County Director (CD) and the Regional Director/Designee (RD) to seek guardianship in CPS cases when determined to be in the best interest of the child.

Procedures

Social Services Case Manager

  1. Conduct a Case Evaluation in accordance with policy 8.4 Family Preservation Services: Case Evaluation:

    1. Document in the Family Functioning Assessment (FFA) evidence of:

      1. Chronic parental absence and chronic un-rehabilitated parental concerns; and

      2. The proposed guardian’s history of caring for the child:

        1. Specify the extended periods the proposed guardian was responsible for the care and supervision of the child arranged by the parent/legal guardian;

        2. Indicate the guardian’s ability to meet the physical and wellbeing needs of the child; and

        3. Indicate the bond between the proposed guardian and the child (demonstrated and observed).

    2. Discuss the following in the staffing with the Social Services Supervisor (SSS):

      1. The age of each child and why guardianship is the best permanency option. If the child is under the age of ten other permanency options considered and pursued.

      2. Were reasonable efforts to maintain the family unit and prevent the unnecessary removal of the child from the home made (family preservation services, service provision, etc.) in accordance with policy 9.5 Eligibility: Reasonable Efforts.

      3. Any child or family Indian heritage and tribal membership (see policy 1.6 Administration: Indian Child Welfare Act (ICWA) and Transfer of Responsibility for Placement and Care to a Tribal Agency).

  2. Conduct a purposeful contact with the parent(s)/legal guardian(s) of the child, if available:

    1. Discuss the consensus reached regarding what needed to change to achieve child safety and the services and supports provided to assist in making the changes;

    2. Explain the protective capacity concerns that still exist that do not allow the child to be safely maintained in the home;

    3. Provide full disclosure regarding guardianship, including:

      1. Guardianship is a legal relationship ordered by court, giving the guardian responsibility for the care of a child (education, medical, and welfare of the minor).

      2. Parental rights are not terminated.

      3. The court has the authority to order visitation giving the parent/legal custodian the opportunity to maintain contact with the child.

      4. The court has the authority to order the parent/legal custodian to pay child support.

      5. The guardian can execute a surrender of parental rights to enable adoption of the child.

    4. Assess their willingness to grant guardianship to the proposed guardian; and

    5. Discuss why he/she feels the proposed guardian is the best choice to care for the child.

  3. Conduct a purposeful contact with the proposed guardian:

    1. Provide full disclosure regarding guardianship including:

      1. Guardianship is a legal relationship ordered by court, giving the guardian responsibility for the care of a child (education, medical, and welfare of the minor).

      2. Parental rights are not terminated.

      3. The court has the authority to order visitation giving the parent/legal custodian the opportunity to maintain contact with the child.

      4. The court has the authority to order the parent/legal custodian to pay child support.

      5. The guardian can execute a surrender of parental rights to enable adoption of the child.

    2. Examine the reason(s) for preferring guardianship;

    3. Discuss the plan to assure child safety in the future; and

    4. Review supports and services in place and the plan for those services to extend beyond guardianship.

  4. Complete collateral contacts in accordance with policy 19.16 Case Management: Collateral Contacts to gather information regarding the proposed guardian’s ability to provide long-term care for the child.

  5. Submit a CPS guardianship request, per county protocol, to the SSS for approval when it is determined that guardianship is in the best interest of the child(ren).

    1. Provide a copy of the FFA, Kinship Assessment, and any other information that supports that the case circumstances meet the criteria for guardianship; and

    2. Whether the plan is to pursue guardianship through juvenile or probate court.

  6. Participate in a case staffing with the SSS, RD/Designee, and Safety Field Program Specialist to discuss the CPS guardianship request. Be prepared to discuss:

    1. DFCS history;

    2. Reasonable efforts made to maintain the family unit and prevent the unnecessary removal of the child from the home;

    3. The approved Kinship Assessment, including the ability of the proposed guardian to provide long term supervision and care for the child(ren);

    4. Whether guardianship should be pursued through probate court or juvenile, if approved; and

    5. Any tribal affiliation and notifications required if the child is an Indian Child (see policy 1.6 Administration: Indian Child Welfare Act (ICWA) and Transfer of Responsibility for Placement and Care to a Tribal Agency).

  7. Upon approval of the request for CPS guardianship:

    1. Request the Special Assistant Attorney General (SAAG) file a dependency petition for guardianship in juvenile court. Inform the SAAG of any child or family Indian heritage and trial membership; or

    2. Inform the parent/legal guardian and proposed guardian to complete the guardianship process in probate court; and

      If the matter is transferred from probate court to juvenile court, consult the SAAG.

    3. Provide required ICWA notifications of the legal proceeding if the child is an Indian Child in accordance with policy 1.6 Administration: Indian Child Welfare Act (ICWA) and Transfer of Responsibility for Placement and Care to a Tribal Agency.

  8. Document the Legal Action in Georgia SHINES and upload supporting document to External Documentation.

Social Services Supervisor

  1. As a part of the staffing with the SSCM during the Case Evaluation process in accordance with policy 8.4 Family Preservation Services: Case Evaluation, when guardianship is recommended determine if:

    1. Chronic parental absence is demonstrated;

    2. Chronic un-rehabilitated parental concerns are evident;

    3. There is a history of caretaking for the child(ren) by the proposed guardian;

    4. Reasonable efforts were made to maintain the family unit and prevent the unnecessary removal of the child from the home in accordance with policy 9.5 Eligibility: Reasonable Efforts;

    5. A Kinship Assessment was completed confirming the ability of the proposed guardian to provide long term supervision and care for the child(ren).

    6. Guardianship is in the best interest of the child and the most appropriate plan to achieve permanency; and

    7. Guardianship should be pursued through juvenile or probate court, if approved (see Practice Guidance: Guardianship).

  2. Review and approve CPS guardianship requests prior to submitting to the CD:

    1. Ensure requests contain sufficient information for the CD to make an informed decision.

    2. Request the SSCM update the request if additional information is needed.

  3. Submit the request to the CD via email, for approval.

  4. Participate in the staffing with the RD/Designee, CD and Safety Field Program Specialist regarding the request, if applicable.

  5. Ensure any additional information requested from the RD/Designee is submitted timely.

  6. Inform the SSCM of the final CPS guardianship request approval. If rejected, outline next steps for the case.

  7. Ensure ICWA notifications requirements are met when the child is an Indian child in accordance with policy 1.6 Administration: Indian Child Welfare Act (ICWA) and Transfer of Responsibility for Placement and Care to a Tribal Agency.

County Director

  1. Review all CPS guardianship requests.

  2. Make a CPS guardianship request decision:

    1. If denied, inform the SSS and SSCM the reason(s) for denial and next steps.

    2. If approved, submit the request to the RD/Designee, via email for final approval.

  3. Inform the SSS of the RD’s decision regarding the CPS guardianship request.

Regional Director/Designee

  1. Acknowledge receipt of the CPS guardianship request within two business days of receipt.

  2. Review and process the CPS guardianship request within seven business days of receipt of all supporting documentation:

    1. Collaborate with the Lead Field Program Specialist and Safety Field Program Specialist;

    2. Conduct a staffing with the CD and Safety Field Program Specialist to discuss case circumstances and the appropriateness of the request;

    3. Notify the CD if additional information is needed; and

    4. Make an approval decision.

  3. Inform the CD of the CPS guardianship request decision.

Practice Guidance

Guardianship in CPS

Guardianship in CPS is limited in its use to cases with demonstrated chronic parental absence, chronic un-rehabilitated parental concerns, and a history of caretaking for the children by the proposed guardian. Before pursuing guardianship through probate or juvenile court in CPS cases reasonable efforts must be made to maintain the family unit and prevent the unnecessary removal of the child from the home.

Guardianship

Guardianship refers to a legal relationship in which a person is given responsibility by the court for the care of a minor, thereby becoming a guardian. The appointment of a guardian vests them with the power to:

  1. Take custody of the person of the minor and establish the minor’s dwelling in the state

  2. Give consent or approval for medical care

  3. Exercise powers necessary to provide adequately for the support, care, education, health, and welfare of the minor.

  4. Participate in or bring legal actions on behalf of the minor

  5. Execute a surrender of rights to enable adoption of the minor

  6. When specifically granted by the court, consent to the minor’s marriage or receive compensation from estate of the minor for services rendered to the minor

The granting of temporary guardianship of a minor does not permanently terminate the parental rights of the parents. Guardianship may give the parent the opportunity to maintain parental contact and provide child support and other family connections. Juvenile court has concurrent jurisdiction with probate court to grant permanent guardianship. Probate may transfer contested temporary (or permanent) guardianship issues to the juvenile court.

Juvenile Court - Guardianship

  1. Permanent Guardianship:

    • Required Legal Findings

      1. Child must be adjudicated as a dependent child

      2. Reasonable efforts to reunify the child with parents detrimental or parents have consented to permanent guardian

      3. Termination of paternal rights or adoption is not in child’s best interest

      4. Proposed permanent guardian can provide a safe home

      5. Appointment of permanent guardian is in child’s best interest

    • Establish a reasonable visitation schedule which allows the child to maintain meaningful contact with his or her parents through personal visits, telephone calls, letters, or other forms of communication or specifically include any restriction on a parent’s right to visitation.

    • May enter an order of support against the parent

  2. Temporary Guardianship

    • Required Legal Findings

      1. Juvenile Court may hear a contested temporary guardianship matter only upon a transfer from probate court.

      2. Any such appointment shall be made pursuant to the same required legal findings as probate court.

Probate Court - Guardianship

  1. Permanent Guardianship:

    • Required Legal Findings

      1. Minor has no natural guardian, testamentary guardian, or permanent guardian

  2. Temporary Guardianship:

    • Required Legal Findings

      1. Filed by a person with physical custody (i.e. third party caring for a child after a parent has left the child in their care)

      2. Guardianship is determined to be in the child’s best interest.

      3. A statement of parental consent or a statement of circumstances giving rise to the need for the guardianship appointment

    • If a natural guardian of the minor files a timely objection to the establishment of the temporary guardianship, the court shall dismiss the petition.

    • If a natural guardian files a timely objection to the selection of the petitioner as temporary guardian, the court shall hold a hearing to determine who shall serve as temporary guardian.

    • If a parent who is not a natural guardian files a timely objection to the establishment of the temporary guardianship or to the selection of the petitioner as temporary guardian, the court shall hold a hearing to determine all matters at issue.

Natural Guardian

The natural guardian(s) of a minor is/are the parents, if living, or the parent(s) having legal custody of the minor if the parents are divorced or were never married.

Testamentary Guardian

Testamentary guardian is a person named in a will to act as a guardian.

Forms and Tools

N/A