22.12 Temporary Custody to a Third Party in Child Protective Services | CWS

Georgia Division of Family and Children Services
Child Welfare Policy Manual

Chapter:

(22) Kinship

Policy Title:

Temporary Custody to a Third Party in Child Protective Services

Policy Number:

22.12

Previous Policy Number(s):

5.6

Effective Date:

September 2020

Manual Transmittal:

2020-06

Codes/References

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. § 15-11-150 Authority to file petition
O.C.G.A. § 15-11-181 Adjudication hearing
O.C.G.A. § 15-11-212 Disposition of dependent child
O.C.G.A. § 15-11-213 Disposition orders; considerations
O.C.G.A. § 15-11-214 Duration of disposition orders

Requirements

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

Have the option to recommend temporary custody to a third party through juvenile court for a child in an open Child Protective Services (CPS) case when a case evaluation was conducted, and it demonstrates:
1. Insufficient progress in meeting the case plan outcomes or conditions for return;
2. Transfer of temporary custody is in the child’s best interests;
3. The situation does not involve chronic or severe child abuse;
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. The parent/legal custodian is supportive of the custodial arrangement and demonstrates motivation to actively work a case plan.
6. The safety threats can be resolved within 90 calendar days.
7. A Kinship Assessment conducted and approved on the proposed guardian demonstrates he/she has:
  1. A history of caretaking for the child;
  2. Adequate financial and other supports to care for the child (including health insurance coverage); and
  3. Collateral contacts support the proposed guardian’s ability to provide care for the child.
8. There has been consideration of the age of the child (i.e. older youth) or the plan the child/youth has for his/her future (i.e. military, Job Corps, college etc.).
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 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).
Provide full disclosure regarding custody to a third party to the parent/legal guardian and the proposed third party custodian.
Obtain written approval from the County Director (CD) to seek temporary custody to a third party.
Upon CD approval, consult with the Special Assistant Attorney General (SAAG) to file a dependency petition in juvenile court requesting:
1. Temporary custody to the third party; and
2. A court ordered case plan with the parent/legal custodian.
Obtain CD approval to close a case in which the court has granted temporary custody to the third party but has denied DFCS request for a court ordered case plan, only after efforts have been exhausted to engage the parent/legal custodian to continue services on a voluntary basis to address child safety concerns (see policy 8.5 Family Preservation Services: Case Closure).

Procedures

Social Services Case Manager

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. The parent/legal custodian’s support of the custodial arrangement and that:
    
    He/she demonstrates motivation to actively work a case plan; and
    
    The circumstances that make it likely that the safety issues will be resolved in less than 90 calendar days.
  2. The proposed third party custodian’s history of caring for the child, including any extended periods the proposed third party custodian was responsible for the care and supervision of the child arranged by the parent/legal custodian.
2. Discuss the following in the staffing with the Social Services Supervisor (SSS):
  1. Whether 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.
  2. The approved Kinship Assessment, including the ability of the proposed third party custodian to provide supervision and care for the child(ren).
  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).
Complete collateral contacts in accordance with policy 19.16 Case Management: Collateral Contacts to gather information regarding the proposed third party custodian’s ability to provide care for the child.
Provide full disclosure regarding temporary custody to a third party to the parent(s)/legal guardian including:
1. It is a legally binding custody order and could include provisions ordered by the court to control his/her behavior;
2. The proposed third party custodian will have the same rights and duties as the parent/legal guardian;
3. DFCS will recommend a court ordered case plan, indicate the specific goals and outcomes and conditions for return;
4. The court has the authority to require him/her to pay child support; and
5. Subsequent court hearings may be held to discuss the progress made on a case plan and whether the child can return to the legal custody of the parent/legal guardian.
Provide full disclosure regarding temporary custody to the proposed third party custodian including:
1. It is a legally binding custody order and could include provisions ordered by the court to control his/her behavior;
2. He/she has the same rights and duties as the parent/legal guardian;
3. The court has the authority to order the parent/legal custodian to pay child support, however he/she will have financial responsibility for the child, including health insurance coverage;
4. DFCS will recommend a court ordered case plan with the parent/legal guardian to address the issue that resulted in temporary custody; and
5. Subsequent court hearings may be held, and his/her attendance and/or testimony may be required.
Conduct a purposeful face-to-face contact with each child using age and developmentally appropriate questions to discuss:
1. Feelings about being cared for by the proposed third party custodian;
2. The transition to the home of the proposed third party custodian
3. Feelings about residing outside of the home. Help them process feelings as appropriate.
Submit a request to seek temporary custody to the third party to the SSS, provide a copy of the FFA, Kinship Assessment and any other information to support that the case circumstances meet the criteria for temporary custody to a third party.
Following CD approval of the temporary custody to a third party:
1. Request the SAAG file a dependency petition in juvenile court requesting:
  Temporary custody to the third party; and
  
  A court ordered case plan with the parent/legal custodian.
  
  Inform the SAAG of any child or family Indian heritage and trial membership.
2. Provide required ICWA notification of the legal preceding 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.
When juvenile court has granted temporary custody to a third party and court ordered the case plan:
1. Document the Legal Action in Georgia SHINES; and
2. Continue to provide Family Preservation Services (FPS) services to support the parent/legal guardian in meeting the case plan outcomes in accordance with policies 8.2 Family Preservation Services: Purposeful Contacts with Families Receiving Family Preservation Services and 8.3 Family Preservation Services: Case Planning.
When juvenile court dismisses the petition or grants temporary custody to a third party without ordering a case plan, in conjunction with the SSS:
1. Consult with the SAAG regarding the need for additional legal recourse to ensure child safety;
2. Continue efforts to engage the parent/legal guardian to work with the agency on a voluntary basis to address child safety concerns; and
3. Obtain CD/Designee approval to close the case when efforts have been exhausted to engage the parent/legal custodian to continue services on a voluntary basis.

Social Services Supervisor

As part of the staffing with the SSCM during the Case Evaluation in accordance with policy 8.4 Family Preservation Services: Case Evaluation, when temporary custody to a third party is recommended, determine if:
1. There has been insufficient progress in meeting the case plan outcomes or conditions for return;
2. The situation does not involve chronic or severe child abuse;
3. 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;
4. It is likely that the safety issues will be resolved in less than 90 calendar days.
5. The parent/legal custodian:
  1. Is supportive of the custodial arrangement; and
  2. Demonstrates motivation to actively work a case plan.
6. A Kinship Assessment conducted and approved on the proposed guardian demonstrates he/she has:
  1. A history of caretaking for the child;
  2. Adequate financial and other supports to care for the child, inclusive of medical coverage; and
  3. Collateral contacts support the proposed guardian’s ability to provide care for the child.
7. There has been consideration of the age of the child (i.e. older youth) or the plan the child/youth has for his/her future (i.e. military, Job Corps, college etc.); and
8. Any child/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).
Review and approve all request for temporary custody to a third party prior to submitting to the CD.
1. Ensure the requests contain sufficient information for the CD/Designee to make an informed decision; and
2. Inform the SSS of the final approval decision. If rejected, outline next steps for the case.
Ensure ICWA notifications requirements are met when the child is an Indian child when temporary custody to a third party will be pursued in accordance with policy 1.6 Administration: Indian Child Welfare Act (ICWA) and Transfer of Responsibility for Placement and Care to a Tribal Agency.
When juvenile court dismisses the petition or grants custody to a third party without ordering a case plan:
1. Participate in a staffing with the SSCM and SAAG regarding the need for additional legal recourse to ensure child safety;
2. Ensure the SSCM continues to engage the parent/legal guardian to work with the agency on a voluntary basis to address child safety concerns; and
3. Obtain CD/Designee approval to close the case when efforts have been exhausted to engage the parent/legal custodian to continue services on a voluntary basis.

CD/Designee

Review all written requests recommending:
1. Temporary custody to a third party; and
2. Case closure when juvenile court has dismissed DFCS petition or grants custody to a third party without ordering a case plan and efforts to engage the parent/legal custodian have been exhausted.
Make an approval decision on requests:
1. Inform the SSS and SSCM of the approval decision in writing for inclusion in the case record.
2. If denied, include the reason(s) for denial and next steps.
Participate in staffings with the SSCM and SSS and consultations with the SAAG as needed.

Practice Guidance

Temporary Custody to a Third Party in CPS

Prior to pursuing temporary custody to third party in CPS, reasonable efforts must be made to maintain the family unit and prevent the unnecessary removal of the child from the home through FPS prior to filing a dependency petition in juvenile court recommending temporary custody be granted to a third party. In addition, to justify this decision to pursue temporary custody a Case Evaluation must demonstrate that:

There has been insufficient progress in meeting case plan outcomes or conditions for return.
An approved Kinship Assessment on the proposed third party custodian shows a history of caretaking for the child and the ability to adequately support the child.
Additional considerations based on the age of the child/youth were factored in prior to the decision.
There is a clear understanding that this option is limited in its use to cases that do not involve chronic or severe child abuse and when it is likely the safety issues can be resolved in less than 90 calendar days.

When the court grants temporary custody to a third party, DFCS must recommend to the court that the parent/legal custodian participates in services through a court ordered FPS case plan to address the dependency issues. If the case plan is court ordered, the oversight of the court will assist in guiding the case toward resolution. Additionally, DFCS will participate in ongoing reviews and other court hearings subject to the court ordered case plan. When DFCS determines that the parent/legal custodian cannot or will not resolve safety issues, or is not making sufficient progress within the initial review period, DFCS has the option to pursue additional court intervention recommending a modification of the disposition and a different permanency option for the child. DFCS remains obligated to provide services to a family until the court determines it is no longer required; when this occurs, a more permanent option for the child such as adoption or permanent guardianship may be a more appropriate for the family.

Situations When Temporary Custody to a Third Party Is Not Appropriate

Situations in which custody may not be appropriate, include but are not limited to:

Chronic and severe physical or sexual abuse cases.
Serious mental health or intellectual functioning issues that cannot be resolved.
Serious substance abuse situations with chronic relapse histories or the need for long-term treatment.
Long term incarcerations.

Temporary Custody to a Third Party

Finding a child dependent and granting temporary custody to a third party does not terminate the parental rights of the parents. Granting temporary custody to a third party, gives the legal third party custodian the right to:

Physical custody of a child,
Determine the nature of the care and treatment of such child, including ordinary medical care, and
Provide for the care, protection, training, and education and the physical, mental, and moral welfare of such child, subject to the conditions and limitations of the order and to the remaining rights and duties of such child’s parent or guardian.

Juvenile Court-Temporary Custody to a Third Party

Required Legal Findings
1. Child must be adjudicated as a dependent child
2. Reasonable efforts to maintain the family unit and prevent the unnecessary removal of the child from the home
3. Proposed third party custodian can provide a safe home
4. Transfer of custody is in the child’s best interest
Dispositions: The court may make any of the following orders of disposition or a combination of those best suited to the protection and physical, emotional, mental, and moral welfare of a child adjudicated as a dependent child:
1. Permit the child to remain with his/her parent, guardian, or legal custodian subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child (i.e. protective order, court ordered case plan).
2. Grant or transfer temporary legal custody to:
  1. Any individual, including a biological parent, who is found to be qualified to receive and care for the child, provided that priority for placement is given to an adult who is a relative or fictive kin;
  2. An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child; or
  3. An individual in another state with or without supervision pursuant to the requirements of Interstate Compact on the Placement of Children (ICPC).
The court has the authority to:
1. Prescribe conditions and limitations to the temporary legal custody including, but not limited to:
  1. Establishing 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;
  2. Issuing orders to control the behavior of the parent/legal custodian and the proposed third party custodian (protective order); and
  3. Ordering temporary child support to be paid by that parent or any person legally obligated to support the child.
2. Return of physical custody of a child adjudicated as a dependent child to his/her parent, guardian, or legal custodian subject to conditions and limitations the court may prescribe, including, but not limited to, supervision for the protection of such child.

Evaluation of the Proposed Third Party Custodian

When there is current voluntary kinship arrangement and the child is being cared for by kin caregivers, prior to DFCS recommending temporary custody to a third party or subsequent to the court granting temporary custody to a third party, the voluntary kinship assessment shall be amended to include:

A formal discussion and assessment of the proposed third party custodian’s ability to ensure the safety and provide continued care for the child.
A detailed evaluation of the proposed third party custodian’s financial ability to provide for the child in addition to other household members.

A review and consideration of the child’s medical coverage if custody is granted to the third party custodian.

It is important to explore this issue thoroughly if temporary custody to a third party is being considered. If the child is currently receiving Medicaid as a part of the parent/legal custodian’s eligibility benefits, upon transfer of custody to the third party custodian, the third party custodian will become responsible for continued health insurance coverage. If the third party custodian wishes to obtain Medicaid for the child, he/she must meet Medicaid eligibility criteria.

History of positive examples of the third party acting in a caregiving role.

Case Closure

When a court ordered case plan is recommended by DFCS but not ordered by the court and custody is granted to a third party, DFCS must ensure that all reasonable efforts are exhausted to provide FPS to the parent/legal custodian on a voluntary basis prior to a case being closed. Only after engagement efforts have been exhausted and when a consensus about how to achieve the best outcome is unable to be achieved, may the case be closed with County Director approval.

IV-E Eligibility

To be eligible for IV-E funding, a child must, among other criteria, be removed from the home of a specified relative as the result of a voluntary placement agreement or judicial determination that the continuation in the home would be contrary to the child’s welfare. The federal statute allows a six-month period of time during which the child can live with an interim caregiver (i.e. voluntary kinship arrangement) and still be eligible for IV-E funding. The removal can be “constructive” (non-physical, paper, or legal) or a physical removal (see policy 9.3 Eligibility: Applying for Initial Funding).

Forms and Tools

N/A