Okla. Admin. Code § 340:75-6-31.4

Current through Vol. 41, No. 19, June 17, 2024

Section 340:75-6-31.4 - Legal guardianship

(a)Permanent guardianship established pursuant to the Oklahoma Children's Code. The court may establish a permanent guardianship between a child and a relative or other adult per Sections 1-4-709 and 1-4-710 of Title 10A of the Oklahoma Statutes (10A O.S. § § 1-4-709 and 1-4-710) when the guardianship is in the child's best interests and when all conditions listed in 10A O.S. § 1-4-709 are substantially satisfied.

(1) 10A O.S. § 1-4-709 conditions are, the:

(A) child was adjudicated a deprived child;

(B) parent:

(i) consented to the permanent guardianship;

(ii) had his or her parental rights terminated;

(iii) failed to substantially correct the conditions that led to the child's adjudication;

(iv) was adjudicated as incompetent or incapacitated by a court;

(v) abandoned the child;

(vi) was not identified or located despite reasonably diligent efforts to ascertain the parent's whereabouts; or

(vii) died;

(C) child consents to the permanent guardianship when the court finds the child of sufficient intelligence, understanding, and experience to provide consent;

(D) termination of the parent's parental rights is not legally possible, not in the child's best interests, or adoption is not the child's permanency plan;

(E) child and proposed permanent guardian do not require protective supervision or preventive services to ensure the permanent guardianship's stability;

(F) proposed permanent guardian is committed to providing for the child until he or she reaches the age of majority, and to preparing the child for adulthood and independence;

(G) proposed permanent guardian agrees not to return the child to the care of the person from whom he or she was removed nor allow visitation without the court's approval; and

(H) child resides or was placed with the proposed permanent guardian for at least the six preceding months or the proposed permanent guardian is a relative with whom the child has a relationship.

(2) When the child is in Oklahoma Human Services (OKDHS) custody, a study of the proposed permanent guardian's home is completed and a report is provided to the court regarding the proposed permanent guardian's suitability, if permanent guardianship is in the child's best interests, and other information as the court requests. The child welfare (CW) specialist:

(A) when the proposed permanent guardian is:

(i) a resource parent, updates Form 04AF003E, Resource Family Assessment - Family Profile; or

(ii) not an OKDHS resource parent:

(I) completes Form 04PP008E, Title 10A Permanent Guardianship Home Study; and

(II) conducts a national criminal history records search in addition to the other background search requirements for each proposed permanent guardian and each adult household member; and

(B) provides the report to the court as directed by the court, or no later than 14-calendar days prior to the permanent guardianship hearing.

(3) A permanent guardianship is not permitted when the proposed guardian:

(A) would be denied placement as a prospective foster or adoptive parent, per 10A O.S. § 1-4-705(C);

(B) is subject to the Oklahoma Sex Offenders Registration Act living with a person subject to the Oklahoma Sex Offenders Registration Act; or

(C) is the child's parent and his or her parental rights are terminated.

(4) A permanent guardian is vested with the rights and responsibilities set forth in 30 O.S. §§ 1-101 et seq. relating to the powers and duties of a guardian of a minor, except for rights and responsibilities the child's parent retains, as set forth in the permanent guardianship decree.

(5) OKDHS may not recommend a parent whose parental rights are terminated to seek guardianship of a child in OKDHS custody.

(b)Filing the 10A permanent guardianship motion. The district attorney or child's attorney is responsible for filing a motion for permanent guardianship with the juvenile court in the deprived case. The proposed guardian signs the information verification contained in the permanent guardianship motion, per 10A O.S. § 1-4-710.

(c)Filing the Title 30 guardianship proceeding. When a Title 30 guardianship is filed for the child to achieve the permanency plan of guardianship, the proposed guardian has the responsibility to obtain an attorney for this purpose. Per 10A O.S. § 1-4-101, the written consent of the judge presiding over the deprived case must be obtained and filed in the Title 30 guardianship case, prior to the guardian being appointed for the child. Limited monetary reimbursement for attorney fees and costs is available when the attorney represents a proposed relative guardian in a Title 30 guardianship proceeding.

(d)Types of guardianship assistance funding available. Guardianship assistance for a Title 10A or Title 30 guardianship may be funded through the:

(1) Temporary Assistance for Needy Families (TANF) Supported Permanency Program;

(2) Title IV-E Subsidized Guardianship Program; or

(3) state.

(e)Requirements for guardianship without benefits. A guardianship may be established without accessing a benefit funding source when the:

(1) guardianship is in the child's best interests; and

(2) conditions listed in 10A O.S. § 1-4-709 are substantially satisfied for a Title 10A guardianship, or a return home or adoption is not an appropriate permanency option for the child when a Title 30 guardianship was court- authorized.

(f)Requirements for guardianship with TANF Supported Permanency Program benefits.

(1) A guardianship may be established with TANF Supported Permanency Program benefits subject to the availability of funds and OKDHS approval when the:

(A) guardianship is in the child's best interests;

(B) conditions listed in 10A O.S. § 1-4-709 are substantially satisfied for a Title 10A guardianship, or a return home or adoption is not an appropriate permanency option for the child when a Title 30 guardianship was court-authorized;

(C) child in OKDHS custody is placed in a paid kinship foster home with a relative who resides in Oklahoma and the relative meets the specified degree of relationship as defined by the TANF program, per Oklahoma Administrative Code (OAC) 340:10-9-1(a);

(D) child is 12 years of age and older or has a sibling 12 years of age and older who resides in the same relative foster home. The deputy director for programs may, for good cause, approve Supported Permanency for a child younger than 12 years of age;

(E) court makes a finding that termination of the parent's rights is either not legally possible or not in the child's best interests, or adoption is not the child's permanency plan;

(F) relative meets requirements for approval as a OKDHS foster home;

(G) child is currently residing with the relative in Oklahoma and has for four of the previous six months;

(H) relative is willing to assume legal responsibility for the child; and

(I) court and, when appropriate, the child are in agreement with the plan for the relative to obtain legal responsibility for the child.

(2) TANF Supported Permanency Program assistance includes:

(A) a monthly payment standard for the child, per OKDHS Appendix C-1, Maximum Income, Resource, and Payment Standards, Schedule XVII;

(B) a Medicaid card for the child's medical care; and

(C) an assigned Adult and Family Services worker who provides referrals for services, when needed.

(g)Requirements for Title IV-E Subsidized Guardianship benefits.

(1) A guardianship may be eligible for Title IV-E guardianship assistance when:

(A) the guardianship is in the child's best interests;

(B) all conditions listed in 10A O.S. § 1-4-709 are substantially satisfied for a Title 10A guardianship, or a return home or adoption is not an appropriate permanency option for the child when a Title 30 guardianship was court-authorized;

(C) the child meets eligibility for Title IV-E kinship guardianship assistance payments, per Section 473(d)(3)(A) of Title IV-E of the Social Security Act (42 United States Code (U.S.C.) § 673(d)(3)(A)). The relative may reside in or out-of-state;

(D) the child was removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home is contrary to the child's welfare and the child is Title IV-E eligible, per OAC 340:75-13-13, for at least six-consecutive months;

(E) the child is a sibling to a child eligible for, or receiving Title IV-E kinship guardianship assistance, and is residing or planning to reside in the same placement;

(F) the child is 12 years of age and older or has a sibling 12 years of age and older who resides in the same relative foster home. The deputy director may, for good cause, approve Title IV-E kinship guardianship assistance for a child younger than 12 years of age;

(G) termination of the parent's rights is either not legally possible or not in the child's best interests or adoption is not the child's permanency plan;

(H) the relative completed requirements to be an OKDHS-approved or tribal foster home;

(I) the child is currently residing with the relative and has for six consecutive months;

(J) the relative is willing to assume legal responsibility for the child and has a strong commitment to permanently care for the child;

(K) the child who is 14 years of age and older is consulted regarding the kinship guardianship arrangement;

(L) the child demonstrates a strong attachment to the proposed relative guardian; and

(M) prior to transferring legal responsibility, OKDHS and the proposed relative guardian sign Form 04MP049E, Title IV-E Subsidized Guardianship Agreement, outlining the assistance provided to the relative guardian.

(2) The Title IV-E Subsidized Guardianship agreement outlines the assistance provided to the relative that includes:

(A) a limited monetary reimbursement for legal fees and costs incurred in transferring legal responsibility of the child to the relative guardian is paid to an attorney representing the proposed relative guardian when a Title 30, instead of a Title 10A, guardianship is filed;

(B) a monthly payment standard for the child, per OKDHS Appendix C-20, Child Welfare Services Rates Schedule;

(C) the manner in which the payment may be adjusted periodically, in consultation with the relative guardian, based on the relative guardian's circumstances and the child's needs;

(D) a Medicaid card for the child;

(E) a right to a fair hearing, per OAC 340:75-1-12.6;

(F) the additional services and assistance for which the child and relative guardian are eligible under the agreement;

(G) the procedure by which the relative guardian applies for additional services; and

(H) assurance the agreement remains in effect if the relative guardian moves to another state.

(3) The child's case plan describes:

(A) how the child meets the eligibility requirements;

(B) the steps OKDHS took to determine a return to the home or adoption is not appropriate, and termination of the parent's rights is either not legally possible or not in the child's best interests;

(C) the efforts OKDHS made to discuss adoption with the child's relative foster parent and the reasons why adoption by the relative foster parent is not an option;

(D) the reason a permanent placement with a proposed relative guardian and receipt of a guardianship assistance payment is in the child's best interests;

(E) OKDHS efforts to discuss with the child's parent the kinship guardianship assistance arrangements or why efforts were not made; and

(F) when the child's placement with the proposed relative guardian does not include siblings, the reasons the child is separated from siblings during placement.

(h)Successor guardian and eligibility for Title IV-E guardianship assistance. In the event of the relative guardian's death or incapacity, the child's eligibility for a kinship guardianship assistance payment under this subsection is not affected by reason of the replacement of the relative guardian with a successor legal guardian named in the Title IV-E kinship guardianship assistance agreement, per 42 U.S.C. § 673(d)(3)(C).

(i)Requirements for a guardianship with state-funded benefits.

(1) A guardianship may be established with state-funded assistance, when:

(A) the guardianship is in the child's best interests;

(B) all conditions listed in 10A O.S. § 1-4-709 are substantially satisfied for a Title 10A guardianship, or a return home or adoption is not an appropriate permanency option for the child when a Title 30 guardianship was court-authorized;

(C) the child is not eligible for TANF Supported Permanency Program or Title IV-E Subsidized Guardianship; and

(D) the deputy director for programs, for good cause, approves state-funded payments to the guardian for the child's benefit.

(2) The state-funded benefit is a monthly payment standard for the child, per OKDHS Appendix C-20, Child Welfare Services Rates Schedule.

(j)Court-ordered provisions within permanent guardianship providing for child's safety and well-being. Per 10A O.S. § 1-4-710, the court, upon finding grounds exist for a permanent guardianship, may order visitation with the child's parent, siblings, or other relatives when contact is in the child's best interests, and any other provision necessary to provide for his or her continuing safety and well-being.

(k)Child support ordered with permanent guardianship. Per 10A O.S. § 1-4-710, the court orders the parent to contribute to the child's support pursuant to child support guidelines, per 43 O.S. §§ 118 and 119.

(l)Permanent guardianship placement not supervised by OKDHS. Per 10A O.S. § 1-4-710, the order appointing a permanent guardian does not require OKDHS placement supervision.

(m)Permanent guardianship placement review period. Per 10A O.S. § 1-4-710, the permanent guardianship order:

(1) requires the placement be reviewed within one year after transfer;

(2) requires the permanent guardian to submit records or reports the court deems necessary for the one year review;

(3) divests OKDHS of legal custody and supervision of the child with no further responsibility for the child's custody or supervision; and

(4) does not require periodic court reviews after the one year review when the parties and court agree the reviews are not necessary to serve the child's best interests, unless periodic reviews are otherwise required by the court.

(n)Child returned to OKDHS custody when permanent guardianship terminated. When a permanent guardianship, established per the Oklahoma Children's Code, is terminated due to the guardian's abuse or neglect of the child, death, or inability to care for the child, the court orders the child returned to OKDHS legal custody pending further hearing.

(1) OKDHS develops a new permanency plan for the child to present to the court within 30-calendar days from the permanent guardianship termination date.

(2) Unless parental rights were terminated, the child's parent is notified and is entitled to participate in the upcoming permanency planning hearing.

(3) The court may order reunification services again be provided to each parent or consider each parent for custody of the child with OKDHS supervision, when the parent can prove conditions previously existing at the time the permanent guardianship was granted were substantially corrected, and reunification is the best alternative for, and in the child's best interests.

Okla. Admin. Code § 340:75-6-31.4

Added at 18 Ok Reg 3067, eff 7-12-01; Amended at 19 Ok Reg 2208, eff 6-27-02; Amended at 20 Ok Reg 2643, eff 7-1-03 (emergency); Amended at 21 Ok Reg 871, eff 4-26-04; Amended at 22 Ok Reg 854, eff 5-12-05; Amended at 27 Ok Reg 44, eff 7-1-09 (emergency); Amended at 27 Ok Reg 1092, eff 3-26-10 (emergency); Amended at 27 Ok Reg 1865, eff 7-1-10; Amended at 30 Ok Reg 389, eff 7-1-13

Amended by Oklahoma Register, Volume 33, Issue 24, September 1, 2016, eff. 9/15/2016

Amended by Oklahoma Register, Volume 35, Issue 24, September 4, 2018, eff. 9/17/2018

Amended by Oklahoma Register, Volume 37, Issue 24, September 1, 2020, eff. 9/15/2020

Amended by Oklahoma Register, Volume 39, Issue 24, September 1, 2022, eff. 9/15/2022

Amended by Oklahoma Register, Volume 40, Issue 22, August 1, 2023, eff. 9/15/2023