Guardianship is particularly appropriate [as an alternative to termination of pa- rental rights] where the state is not in- volved in the action or will cease its in- volvement with the guardianship dispo- sition … If the parent becomes rehabili- tated, and resumption of parental cus- tody is in the child’s best interests, the guardianship can be terminated and custody returned to the parent. Guard- ianship does not interfere with inheri- tance rights or other benefits flowing from the parental relationship. Children who need stability of placement while preserving the legal parent-child rela- tionship can often be served best by permanent guardianship.5
Ms. Zalenski proposed that procedur-
al protections and appointed legal counsel will assure that parental rights are not violat- ed. Within the context of family-driven solu- tions, a protection of legal rights using the adversarial model may actually hinder posi- tive solutions for the parents within the fam- ily. While well-experienced counsel under- stand the dynamics of kinship care and fam- ily-based decision-making, inexperienced counsel often stand on legal rights, burdens of proof, and rules of evidence. This some- times polarizes the family into needless squabbles over minor facts, leaving behind the solutions that are readily apparent when the family is working together. Experienced counsel understand this.6
The Contested Guardianship Of course some minor probate guardian-
ship cases proceed on unsuitability grounds and are not consensual by the parents. In those cases, the burden of proof is upon the petitioner to prove by clear and convincing evidence that the parent is unsuitable (un- fit) by the same criteria as used in the child protection forum of the family division.7
In
those cases where the petitioner is well-rep- resented and the parents are not, there can be a power differential that the court must resolve. The inequality can fall the other way if the parent is represented but the petition- er is pro se and is unable to address the is- sues with competent evidence. The inequal- ity, in either direction, is something that happens in many forums on many issues. It is for this reason that the Vermont Bar Asso- ciation made efforts to recruit volunteer at- torneys in minor guardianship cases.8
The Disparity of Services Between Probate and CHINS
The author pointed out in her article that, following the creation of a probate guard- ianship, neither the parents nor the guard- ian are given social workers or foster care
26
supports at the same level that foster par- ents under the DCF system receive. This is true. In cases where a parent agrees to a change of custody there is usually no con- tinuing risk of harm to the child and DCF has no ongoing responsibility. The simple expla- nation for this is that (1) the child is no lon- ger at risk and (2) the Commissioner of DCF does not have custody of the minor. Kinship caretakers do have some supports in the form of a child-only RUFA grant and kinship support groups assisted by Vermont Kin as Parents (VKAP) and Kinship Information Network - Kinship Advocacy Network (KIN- KAN). The disparity in services and benefits is substantial, however, and the disparity makes the choice of forums very important.9 The choice of jurisdiction is more often in- fluenced by the loss of control of the case, the reluctance to admit child abuse and ne- glect, and the fear of involvement with DCF, than by the lower level of services. The au- thor concluded by urging that DCF assure that “the family will not lose services and supports necessary to reunify parent and child if a guardianship is created.” It is naive to believe, as the author apparently does, that DCF will be able to offer services and benefits to kinship guardians and parents whose children are in guardianship, even if there has been no finding of CHINS. If I am incorrect about the ability of DCF to render services in such cases, there are probably 150 cases in Washington County alone that would deserve such services. Kinship care is on a growth curve and is already significant within our state.10
The author made the point that parents
and kin are ill-informed about the servic- es and the attributes of the two forums. I agree with her. Explaining the differences in the laws, services, and benefits to a well-in- formed attorney is difficult. Explaining the subtle differences to a parent who is in cri- sis, or a grandmother who is trying to pro- tect her grandchild in the midst of a fam- ily nightmare, is more difficult, to say the least. While I agree that the choices should be made by folks with a thorough under- standing of all of the ramifications of the choice, I am not sure the author made any proposals as to how to achieve this goal or where the funding would come from to do so. The courts are charged with the duty of explaining to parents who consent to minor guardianships the legal ramifications and the prerequisites to terminating the guard- ianship. There is an effort underway by the Brookdale Grant to make better service in- formation available to incoming guardians. To be clear, I agree that better information and more informed choices by parents and guardians would be an improvement. The mechanism to accomplish this is the real question which needs to be answered.
THE VERMONT BAR JOURNAL • SPRING 2012
The Permanence Issue In the family services division of DCF
there is a marked emphasis on making sure that a child has an opportunity for perma- nence. This issue has received emphasis nationally and in Vermont because of past abuses where children entered the foster care system and “drifted” within the sys- tem from home to home, graduating from state custody without a sense of home, or a permanent starting point in their life. Adop- tion from foster care is one method of giv- ing a child a permanent home. Within the context of kinship guardianship however, the dynamic is somewhat different. A le- gal adoption by a grandmother of a grand- child stands as a permanent and formal la- beling of the parent as incapable. Often, it is a taking of a child from a parent by the parent’s parent. Sometimes, of course, such a permanent taking in the child’s best inter- est and should be done. Statistically, it is not done very often, for obvious reasons. In a long-term guardianship the child re- mains within the extended family, the child has never been “taken away” from the larg- er family, and adoption is often not neces- sary. Sometimes the child continues to have regular contact with the parent (through the kin-guardian) and the trauma of parent loss and grandiose parent fantasies are not pres- ent. Adoption rates in kinship placements both within and without foster care systems are much lower than in non-kinship place- ments. Permanent guardianships are anoth- er mechanism of assuring that a child will not be disrupted from a stable and secure placement.11
Ms. Zalenski’s Proposed Solutions
The author promised at the beginning of her piece that she would “ … conclude with recommendations for policy and action.” By the end of the piece she only suggested some “possible” policies but did not “ … discuss the full implications of these possi- bilities or imply that they would be accept- able policy choices.”
The first policy suggestion was that DCF discern the narrow range of cases for which minor guardianships are appropriate and then: (1) verify that the proposed guardian is suitable; (2) verify that the family will “not lose services and support necessary to re- unify the parent and child”; (3) verify that the parent is given legal assistance in reach- ing an informed decision about guardian- ship; and (4) assure that DCF workers are supervised to guarantee that there is no co- ercion of parents toward guardianship. The suggested policy is uninformed. How can DCF discern which cases (which might not rise to the level of CHINS) are “appro- priate” for probate guardianship? Without a present level of risk to the child, how can
www.vtbar.org
Custodial Kinship Guardianships for Minors
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40