Modernizing Guardianship of Juveniles in State Courts

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By Mike Hartman | May 2022

More than 4% of all children live in kinship care settings, where relatives are responsible for children who may or may not have a living biological parent.

Such an arrangement is commonly known as minor guardianship, where caregivers can apply to state civil courts to obtain legal rights and responsibilities over a minor child with varying involvement of the state child protection system. childhood.

Over the past decade, national efforts have focused on reducing the number of children involved in the public child protection system through foster care and incentive-based care arrangements. family care as more promising alternatives for mitigating child abuse and neglect and promoting family stability. In addition, national crises have exacerbated the need for alternative care: it is estimated that more than 5.2 million children have lost their parents due to the COVID-19 pandemic and 240,000 children have lost their parents due to the opioid epidemic. Despite this growing attention and need, little is known about the experiences of kinship families, particularly as they navigate probate, juvenile and family courts.

Many procedures and processes related to private guardianship cases are cumbersome, confusing and inefficient. Caregivers and children often find themselves navigating an archaic legal system, with no legal or financial support, just to complete simple tasks like enrolling a child in school or taking them to the doctor. However, several state legislatures are leading the work to update their states’ juvenile guardianship systems to accommodate the increase in use and to rethink the intersections of child welfare and judicial system.

What is guardianship of a minor or a child?

The history of minor guardianship proceedings can be traced back to the way courts have dealt with a deceased person’s estate, which included the care of orphaned children. This is why several judicial branches of the state still place these cases in probate courts and divisions, as well as in guardianships of adult or incompetent persons. However, the circumstances in which minor guardianship procedures are used today have changed. The modern minor guardianship process has evolved into a private child protection process where a person can apply to be appointed as the legal guardian of a child if the child’s parents are deceased or unable to act as guardian. parent due to illness, incarceration, abuse, abandonment or other circumstances. Once guardianship is established, the guardian is granted decision-making rights and responsibilities over the custody and care of a child, equivalent to those of a parent.

It is important to note that minor guardianship proceedings differ from state dependency and adoption proceedings. Dependency proceedings – sometimes called child abuse and neglect cases – are initiated by state child welfare agencies on behalf of a child, while minor guardianship proceedings can be initiated independently by private parties, usually relatives. The differences between minor guardianship and adoption are nuanced with regard to the rights of the parent. Parental rights over the child, such as visitation rights, are often maintained in guardianship arrangements but terminated in adoptions. For more information on the differences between guardianship and adoption, see Generation United’s National Comparison Chart.

Depending on the state, minor guardianship proceedings may be heard by probate, juvenile or family judges. Many recent reforms focus on courts best equipped to have jurisdiction over minor guardianship cases and children and families more broadly. One approach is for states to place minor guardianship proceedings under the jurisdiction of juvenile or family courts, which have existing relationships with state child welfare agencies and expanded access to social work. and legal resources. Another approach continues to consolidate adult and juvenile guardianship cases in probate courts and focuses on improving court processes and access to resources, making these procedures more efficient for caregivers navigating through the system and fair to minors and adults in need of protection.

State policies regarding juvenile guardianship laws can vary widely on issues such as who can apply to court for guardianship, who should be told about the process, and how. In addition, States use different terms to refer to the same procedure. For example, Louisiana refers to the guardianship relationship as “wardship”, Delaware as “wardship of a child”, New Mexico as “legal kinship guardianship”, and Texas as “non-parental custody”.

State actions to reform guardianship of minors

The dual ramifications of COVID-19 and the opioid epidemic have accelerated the potential need for minor guardianship proceedings and pressured courts and legislatures to modernize the laws and processes that govern such cases and are at the heart of the problem of family care.

Several states, including Iowa, Maine, Mississippi, North Dakota and Washington, have recently used the legislation to transform how minor guardianship cases are handled. Many of the reforms aim to modernize the way the courts deal with these cases or provide similar private guardian resources that are given to children and caregivers involved in the public child protection system. Some states have enacted major reform bills and are in the process of passing laws to tighten up remaining technical issues.

In 2019, Iowa passed the Iowa Minor Guardianship Proceedings Act. The law modernized the guardianship of minors by moving the procedure from probate courts to juvenile courts. In addition, the law requires background checks for proposed guardians and provides for court-appointed counsel for certain parents and minors. Minors may be appointed as counsel in guardianship proceedings if the court determines that the interests of the minor may be insufficiently represented. In contrast, parents only need to have an attorney appointed if the parent objects to the application for guardianship, requests an attorney, and the court determines that the parent is unable to afford an attorney.

Similarly, North Dakota recently made some changes by moving a minor guardianship proceeding where a child protection decision is made from probate court to juvenile court. However, the North Dakota Judicial Probate Division will retain guardianship jurisdiction in cases where both parents are deceased, and a will establishes the parents’ desire to know who will take guardianship. The state requires a background check of potential guardians and an in-person hearing unless all of the child’s living parents consent in writing to the appointment, are deceased, or have had their parental rights terminated by court order.

By comparison, in 2020 Washington enacted legislation based on the Uniform Law Commission’s Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPPA). The law takes a different approach than Iowa’s by focusing instead on modernizing adult and juvenile guardianship as a type of case within the jurisdiction of probate courts. Maine has also adopted the UGCOPPA with some modifications.

In 2019, the Mississippi Legislature enacted Senate Bill 2828, based on recommendations from the Commission on Guardianship and Guardianship established by the Mississippi Supreme Court, adopting the approach of Integrated Guardianship Reforms of minors and adults as Maine and Washington did. The commission “made recommendations to create a clear and functional statutory framework, modern and enforceable reporting requirements, comprehensive court oversight procedures, state-led accountability measures, protection of basic neighborhood rights and transparency for all parties”. It was the first major reform of guardianship laws in Mississippi since 1972.

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