February 9, 1998 98-R-0114

TO:

FROM: Saul Spigel, Chief Analyst

RE: Subsidized Guardianships

You asked for a description of Connecticut's subsidized guardianship law, particularly the reasons behind requiring a child to be in foster care for at least 18 months before a subsidy is possible, and what other states are doing in this area.

SUMMARY

Connecticut's new subsidized guardianship law (PA 97-272) took effect July 1, 1997 but has not yet become operational. The Department of Children and Families (DCF) proposed implementing regulations in mid-December 1997, but the typical regulation review, comment, and approval process usually takes several months to finalize.

The law allows a relative or another person who a court appoints as the guardian for a child whose parents have died or cannot care for him for other reasons to request a subsidy from DCF. The subsidy includes (1) a lump sum payment for one-time expenses resulting from the guardian's cost of assuming care, (2) medical coverage if the child is not covered by private insurance, and (3) a monthly payment equal to the prevailing foster care rate. Income and assets available to the child such as Social Security, child support, or life insurance left through a parent can affect the subsidy amount.

Before the subsidy can be granted the child must have been living in foster care or DCF-certified relative care for at least 18 months. The 18-month requirement was instituted, DCF legislative liaison Jeannie Millstein reports, to give DCF time to make sure that (1) caregiver families are really interested in caring for the children and not just looking for added income and (2) reunifying parent and child is not a viable option, another condition the law imposes.

Some 10 states have enacted laws that provide monthly guardianship subsidies, according to Shelley Geballe, co-director of Citizens for Connecticut Children and Youth. Four states (including Illinois, which also permits subsidies by statute) have obtained federal waivers to use Title IV-E money (foster care funds) to provide subsidies, especially for relatives who become guardians. We looked at statutes in five states. All require (1) a child to be in state-supervised foster care for some period (six months to two years) before the subsidy is awarded and (2) a finding that reunification with the parents is unlikely. Several limit subsidies to older children. In Nebraska a subsidy can be granted only if it is needed to make the guardianship feasible; in Illinois the guardian's finances are considered in determining the type and amount of subsidy.

CONNECTICUT'S SUBSIDIZED GUARDIANSHIP LAW

PA 97-272 authorizes monetary and health insurance subsidies to a “relative caregiver” who assumes from DCF legal guardianship of a child who the agency has placed for at least 18 months with a relative it certifies or a foster care family. The act defines relative caregiver as any person (not just a relative by blood or marriage) who is caring for a child because the child's parents are dead or unable to care for him for reasons that make family reunification unlikely in the near future. (DCF's proposed regulations define a relative caregiver as someone taking care of a child related by blood or marriage.) The proposed regulations list the following as conditions that might make reunification unlikely:

1. the parent's abandonment of the child,

2. the parent's physical or mental disability or serious emotional maladjustment,

3. the parent's failure to achieve rehabilitation adequate to provide for the child, and

4. the child's age when considered with other factors affecting his functioning.

Under the regulations, a relative caregiver can request a subsidy only after the child has been placed with him for at least 18 months. The request is made to the child's DCF caseworker. To receive the subsidy DCF must have determined over those 18 months that the relative caregiver can provide for the child's physical, mental, emotional, educational, and medical needs without DCF's help, except for the subsidy.

The subsidy includes a monthly payment equal to the prevailing foster care rate (which varies depending on the child's age from $20.44 daily for children five and under to $23.27 daily for children 12 and older); a medical subsidy for children not covered by private health insurance; and, when no other funds are available, a lump sump special needs payment to cover one-time expenses associated with assuming care for the child (e.g., clothing). DCF may modify the actual subsidy amount if any assets are available to the child. Assets may include Social Security, Temporary Family Assistance, child support, and life insurance or death benefits from or through a parent. The subsidy lasts until the child turns age 18 or 21, if he is a full-time student or enrolled in an accredited job-training program.

The proposed regulations call for DCF to certify the need for a subsidy in writing and for the department and the relative caregiver to agree on the amount before a court transfers guardianship. This agreement becomes part of the court record. Once a subsidy is granted the child continues to it even if the relative caregiver moves out of the state.

If the relative caretaker is denied a subsidy, disagrees with DCF over its amount or a subsequent modification, or the subsidy is terminated, he may, under the regulations, appeal to the DCF commissioner and then to Superior Court.

Illinois

Illinois law permits its Department of Children and Family Services (DCFS) to provide financial assistance to court-appointed guardians of children who were the department's wards for at least 12 months immediately before the guardianship was finalized. DCFS must also have made permanent placement with a foster family a goal of its plan for the child. The amount of assistance may vary depending on the needs of the child and the guardian. The law specifically makes the assistance inalienable, that is it cannot be recovered or collected as part of a court judgment or debt (20 ILCS 505/5(j)). Illinois also received a federal waiver, which permits it to use Title IV-E funds for the subsidies.

DCFS rules set additional minimum eligibility requirements:

1. the child can be any age if the guardian is a relative but must be at least 12 years old if the guardian is not a relative;

2. the child must have been in DCFS custody for at least two years and have lived with the family assuming guardianship for at least one year,

3. DCFS's permanency planning process must have ruled out the child's return home and adoption, and

4. the birth parents have consented to the subsidized guardianship or have been notified that it is pending.

The type and amount of each child's subsidies are determined based on the child's special needs and the guardian's circumstances. A child's Social Security benefits are considered in determining the subsidy amount. According to DCFS, guardians typically receive (1) a one-time payment if it is needed to help in the costs of transferring guardianship, (2) health and special care cost coverage if it is not otherwise paid for by public or private insurance, and (3) ongoing monthly payments.

DCFS maintains a post-guardianship unit to help guardians who discover that they cannot handle the child.

In Massachusetts the Department of Social Services (DSS) initiates subsidized guardianships. Departmental regulations permit it to sponsor guardianships when (1) it determines a child cannot be returned to his biological parents and adoption is unlikely, (2) the child has lived with the potential guardians for at least one year, and (3) the child is at least 12 years old. The department can waive the latter two conditions if it determines doing so is in the child's best interests (e.g., to keep siblings together).

When the department determines a child meets these criteria, his social worker discusses guardianship with him and his potential guardians. If the child and the potential guardians agree to the proposal, the social worker then tries to obtain the biological parents' approval. If they do not approve, the social worker informs them of their right to contest the proceeding and, if they are indigent, to obtain a court-appointed counsel to help them. A DSS attorney then prepares the guardianship transfer papers and shepherds the proceeding through the courts.

A child whose guardianship is transferred through this process is eligible for support payments and medical assistance from DSS. The subsidy amount is determined by other state or federal benefits the child receives; it can be no more than the amount the child would have received if he remained in foster care (110 CMR 7.301-303).

Within available funds, the Department of Children and Family Services (DCFS) can provide subsidies to guardians of children as part of a permanency plan. The subsidies equal the rate paid to foster parents and include medical coverage. The following four criteria must be met:

1. child must be at least 14 years old unless he is part of a sibling group and cannot be made available for adoption,

2. the child has lived with the potential guardian for at least six months,

3. DCFS has determined that reunification is not an option and termination of parental rights is not appropriate, and

4. The placement does not require DCFS supervision (1996 Iowa Acts, ch. 1213).

Nebraska statute permits the Department of Health and Human Services to make payments as needed on behalf of a child who was a ward of the state before a guardian was appointed. The subsidy can be granted only if the guardianship would be impossible without it. The subsidy can include maintenance costs (a monthly payment), medical coverage, and other costs incidental to the child's care (Neb. Stat. Ann. § 43-284).

Washington law creates a specific “dependency guardianship” for children who a court finds have been abandoned, abused or neglected, or in danger of substantial damage to their psychological or physical development because their parents or guardians are incapable of caring for them. The law specifies that dependency guardians are not precluded from receiving foster care payments.

The court must also find that:

1. the child has been removed from his parents' custody for at least six months,

2. the Department of Health and Human Services has offered or provided all the services required under a court-ordered disposition (similar to Connecticut order for temporary custody) and other appropriate services have been offered or provided to the parents,

3. there is little likelihood the family will be reunited, and

4. a guardianship, rather than termination of parental rights (and potential adoption) or continuing reunification efforts, is in the child's best interests.

A dependency guardianship is limited as compared to Connecticut guardianships that receive subsidies. The court order establishing the guardianship appoints a person or agency to serve for the sole purpose of assisting the court in its supervision of the child. The court can also order the child's continued supervision by the Department of Health and Human Services. The order gives the guardians care, custody, and control of the child and the right and responsibility to discipline and educate; provide food, shelter, clothing, and routine medical care; and consent to necessary medical and surgical care. But the court can limit these rights and responsibilities (RCW § 13.34.231-234).

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