Library: Policy

340:75-6-31.4. Legal guardianship

Revised 9-15-23

(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

(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. ■ 4

(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; ■ 1

(B) a Medicaid card for the child's medical care; ■ 2 and

(g) Requirements for Title IV-E Subsidized Guardianship benefits. ■ 5

(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; ■ 1

(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; ■ 2

(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. ■ 6

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

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

(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. ■ 8

INSTRUCTIONS TO STAFF 340:75-6-31.4

Revised 9-15-23

1. Monthly payment standard. The monthly payment standard for guardianship payments is based on the child's age category per Oklahoma Human Services (OKDHS) Appendix C-20, Child Welfare Services Rates Schedule, or Appendix C-1, Maximum Income, Resource, and Payment Standards, Schedule XVII, as applicable.

(1) When the child enters a different age category, the payment standard is adjusted.

(2) Difficulty of care rate payments are not included in the Supported Permanency, monthly payment standard.

(3) Other income, such as Social Security disability, death benefits, and child support reduces the payment standard amount, or when in excess of the payment standard, eliminates the child's eligibility for Supported Permanency, per Oklahoma Administrative Code (OAC) 340:10-3-26.

(4) A person who is included in a tribal Temporary Assistance for Needy Families (TANF) payment may not be included in another benefit in the same month. When the person meets the criteria of a tribal TANF service area and population, the entire household must be served by tribal TANF. When the household moves out of the tribe’s service area, the state TANF benefits are re-certified.

2. Medical coverage during TANF Supported Permanency and state-funded guardianships. When guardianship is granted, the guardian re-applies for child's SoonerCare Choice while the child remains in a legal guardianship. Transportation for medical appointments is available through the SoonerRide program.

3. Medical coverage during Title IV-E guardianships. When the guardianship is granted, an OKDHS custody medical specialist certifies and enrolls the child in ongoing medical benefits. A new medical card is sent to the guardian when enrollment is completed. Out-of-state Title IV-E funded guardianship medical coverage is through Interstate Compact on Adoption and Medical Assistance (ICAMA). Out-of-state medical coverage is not guaranteed on state-funded guardianships.

4. Process to determine guardianship funding type. OKDHS may not recommend a parent who had his or her parental rights terminated for guardianship of a child in OKDHS custody.

(1) When considering supported guardianship, either through Supported Permanency, Title IV-E, or state-funded guardianship assistance, the permanency planning (PP) specialist:

(A) facilitates a Family Meeting (FM), per OAC 340:75-6-31.1 and explains the differences between adoption and guardianship to the proposed permanent guardian and child, as appropriate for the child's age, to ensure the child and proposed permanent guardian understand the various forms of permanency available when considering the child's long-term best interests; and

(B) during the FM, develops recommendations to present to the district attorney or child's attorney for incorporation into the guardianship order that include:

(i) parent-child visitation;

(ii) appropriate visitation between siblings who are not placed together; and

(iii) child support.

(2) Prior to sending Form 04MP050E, Request for Funded Guardianship, to the PP Program Unit, the PP specialist requests the court refer the case to Child Support Services (CSS) to establish current child support order for both parents of the child.

(3) When the PP specialist, PP supervisor, and district director determine permanent guardianship is the appropriate permanency plan and assistance is needed, the PP supervisor submits:

(A) Form 04MP050E to the regional guardianship lead; and

(B) ensures a copy of the completed FM report is in the child's document management system (DMS).(4) The PP specialist obtains final approval from the PP Program Unit for state-funded permanent guardianship assistance prior to the court entering the guardianship order.

5. Protocol for Supported Permanency TANF subsidized guardianship. The supported guardianship is approved by the PP Program Unit before the court enters the guardianship order. The PP specialist:

(1) obtains the court order and, when appropriate, the child's approval to proceed with permanent guardianship as the permanency plan. The supported guardianship is approved by the PP Program Unit before the court enters the guardianship order;

(2) emails the court order and completed Form 04PP006E, Supported Permanency Referral, to the Supported Permanency TANF specialist within five-calendar days of the relative assuming legal guardianship to obtain an authorization letter;

(3) attaches information regarding each child's identified needs and suggestions for continued services for the family and attaches the:

(A) order transferring legal responsibility to the permanent guardian; and

(B) the TANF Authorization Approval Letter;

(4) informs the relative to contact the local OKDHS office to complete the TANF application for Supported Permanency when he or she has not had a personal contact from an Adult and Family Services worker within 10-calendar days of assuming legal guardianship; and

(5) closes the child welfare (CW) case upon completion of the custody transfer and referral to TANF.

6. Protocol for Title IV-E subsidized guardianship.

(1) The PP specialist:

(A) obtains the court order and, when appropriate, the child's approval to proceed with permanent guardianship as the permanency plan. The subsidized guardianship assistance agreement is approved by the PP Program Unit before the court enters the guardianship order;

(B) completes and emails Forms 04MP048E, Request for Title IV-E Subsidized Guardianship Assistance, and 04MP049E, Title IV-E Subsidized Guardianship Agreement, to the placement provider to sign and return. The signed forms are reviewed by the PP Program Unit prior to the permanent guardianship being ordered;

(C) notifies the PP Program Unit no1 later than five-calendar days after the transfer of legal responsibility and includes a copy of the guardianship order; and

(D) closes the CW case upon completion of the transfer of legal responsibility and notification from the PP Program Unit.

(2) Prior to the court entering the guardianship order, difficulty of care (DOC) payments may be paid to guardians with PP Program's approval.

7. Protocol for state-funded guardianship. The programs deputy director reviews each state-funded request for guardianship assistance.

(1) The PP specialist:

(B) completes and email Forms 04PP007E, Request for State-Funded Guardianship Assistance, and 04MP044E, State-Funded Guardianship Assistance Agreement, to the placement provider to sign and return. The signed forms are reviewed by the PP Program Unit prior to permanent guardianship being ordered;

(C) obtains final approval from the PP Program Unit for state-funded permanent guardianship assistance prior to the guardianship order being entered by the court;

(D) notifies the PP Program Unit no later than five-calendar days after the transfer of legal responsibility and includes a copy of the guardianship order; and

(E) closes the CW case upon completion of the transfer of legal responsibility and notification from the PP Program Unit.

(2) Prior to the court entering the guardianship order, DOC payments may be paid to guardians with PP Program's approval.

8. Fees for attorneys representing a proposed guardian in a Title 30 guardianship. The district attorney or child's attorney files motions for a Title 10A permanent guardianship in the deprived case. Limited monetary reimbursement for attorney fees and costs is available when the attorney represents a proposed relative guardian in a Title 30 guardianship proceeding. When it is necessary for a retained attorney to file a Title 30 guardianship proceeding, attorney fees and court costs for the Title 30 guardianship require special approval from the PP Program Unit and apply to each guardianship proceeding that results in a transfer of legal responsibility, but not to each child. The CW specialist:

(1) requests approval for attorney fees and court costs from the PP Program Unit prior to the guardianship filing;

(2) secures authorization for the retained attorney's services and payment through the Finance system;

(3) obtains detailed documentation of attorney fees and court costs to accompany reimbursement requests. Requests for attorney fees and court costs over $500 must be approved by the PP Program Unit; and

(4) sends the authorization form to the retained attorney for reimbursement of attorney fees and court costs not to exceed $2000.

9. Termination or modification of a permanent guardianship. A permanent guardianship may be terminated or modified by the court per Title 10A or Title 30 of the Oklahoma Statutes, as applicable, based upon clear and convincing evidence of a substantial change in material circumstances and the child's best interests.

(1) Parental reunification. The court may order reunification when it is in the child's best interests and may consider parental custody with OKDHS supervision when the parent can prove by a preponderance of the evidence services and conditions that existed when the permanent guardianship was granted were substantially corrected and reunification is the child's best alternative.

(2) Return to OKDHS custody. Section 1-4-711 of Title 10A of the Oklahoma Statutes (10A O.S. § 1-4-711) requires the child be returned to OKDHS legal custody and OKDHS presents a plan to the court on the child's behalf within 30-calendar days. The court conducts a permanency hearing within 30-calendar days when the permanent guardianship is terminated due to a substantial change in material circumstances that includes, but is not limited to, the:

(A) permanent guardian is unable to properly care for the child;

(B) child was abused or neglected while in the permanent guardian's care; or

(C) child's permanent guardian is deceased.

(3) When permanent guardianship termination results in the child's removal from the permanent guardian's home, the court determines if:

(A) the child's continuation in the guardian's home is contrary to the child's welfare; and

(B) reasonable efforts were made to prevent the child's removal from the home or an absence of efforts to prevent the child's removal from the home is reasonable, due to an emergency.

(4) The previously assigned PP specialist is no longer responsible for legal custody or supervision of the child, nor is he or she responsible for evaluating new potential guardians.

10. Successor guardian and eligibility for Title IV-E Guardianship assistance. Per Section 473(d)(3)(C) of Title IV-E of the Social Security Act (42 United States Code (U.S.C.) § 673(d)(3)(C)) in the event of the kinship guardian's death or incapacity, the child's eligibility for a kinship guardianship assistance payment under this subsection is not affected by the relative guardian's replacement with a successor legal guardian that is named in the kinship guardianship assistance agreement. A successor guardian is named in the kinship guardianship agreement at the initial guardianship's finalization.

(a) A person, or persons, the kinship foster parent wants named as the successor guardian is approved by OKDHS prior to the guardianship finalization. To approve a successor guardian(s), the proposed successor guardian(s):

(1) is at least 21 years of age;

(2) has an established relationship with the child, however is not required to be a relative;

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

(4) resides lawfully in the United States;

(5) provides consent for an Oklahoma State Bureau of Investigation (OSBI) and Federal Bureau of Investigation (FBI) criminal records history search by signing Form 04AD003E, Request for Background Check;

(6) provides the names, dates of birth, and Social Security numbers of all household members;

(7) signs Forms 04MP048E and Form 04MP049E; and

(8) provides a copy of his or her Social Security card and driver license.

(b) The PP staff conducts a background check of proposed successor guardian(s) and household members that includes:

(1) an OSBI name and criminal records history search, including the Oklahoma Sex Offender Registry;

(2) an FBI national criminal records history search;

(3) a search of the Mary Rippy Violent Offender Registry;

(4) a Restricted Registry search;

(5) an Oklahoma Department of Public Safety report;

(6) a search of the Oklahoma State Courts Network (OSCN) and Oklahoma District court records to determine if the proposed successor guardian(s) is part of any court action that may be detrimental to a child's safety and well-being;

(7) a completed OKDHS records search using the Information Management System and KIDS with the adult's name, Social Security number, and birth date, recording the information on Form 04AF007E, Records Check Documentation Form, and filing in the supported guardianship record;

(8) a search of all applicable out-of-state child abuse and neglect registries for the applicant or adult household member who has not lived continuously in Oklahoma for the past five years;

(9) completing a search on the Juvenile Justice Information System, also known as the Juvenile Online Tracking System, of all children in the home 13 years of age and older; and

(10) records the results in DMS.(c) The PP field representative monitoring the subsidized guardianships reviews background information and the child's case to determine approval of the proposed successor guardian. (d) When a successor is established and the guardianship was ordered, if the guardianship is dissolved, the post-guardianship program field representative verifies the successor information and transfers the subsidy to the successor.

11. Permanent guardianship for a child in tribal custody. The tribal court may establish a permanent guardianship between a child in tribal custody and a relative or other adult approved by the tribe.

(a) The Indian Child Welfare (ICW) worker submits Form 04MP050E, Request for Funded Guardianship, to the PP Program Unit for approval.

(b) PP Program Unit determines if the request meets criteria for Title IV-E subsidized guardianship. Children in tribal custody are not eligible for a Supported Permanency TANF subsidized guardianship.

12. Guardianship assistance overpayments for Title IV-E and state-funded guardianships. Post-guardianship services follow policy within OAC 340:75-15-128.1 to rectify guardianship overpayment. The guardian is responsible for repayment, even when he or she is not responsible for the overpayment.

13. Guardianship assistance agreement for Title IV-E and state-funded guardianships.