Why Guardianship is a Better Plan of Care than Custody With a Third Party in Child Welfare Cases

Parent's attorneys often ask why the Department of Social Services wants to change a plan to Guardianship rather than to a plan of Custody with a Relative or Court Approved Caretaker. Very often the answer given is a bit vague and very often doesn't satisfy parent attorneys or their clients who, as the parents or former guardians, caretakers or custodians for a child in custody, are looking at the best options given an impending plan change away from one of Reunification.

The following constitutes the best answer that I can give to the many inquiring minds that want to know. I hope it is both informative as well as useful to your daily work in Juvenile Court.

When a parent has acted in a way that is contrary to the welfare of a juvenile or has otherwise acted inconsistently with their Constitutionally protected status as a parent, the court may conduct a permanency planning hearing and, after finding that reunification should not be a plan, consider permanent plans that involve guardianship or custody with a court approved third party (or termination of parental rights and adoption). North Carolina General Statute 7B-906.1. Concurrent planning is required at the permanency planning stage of a juvenile proceeding and it is perfectly possible to have both guardianship and custody as concurrent plans. Id.  However, even if both plans are chosen, there must be a primary and a secondary plan. Id. When evaluating which plan should be a primary plan, one must note that each of these plans have their particularized merits and advantages as well as disadvantages which commend consideration before a primary and secondary permanent plan is established. These advantages largely pertain to each plan’s relative durability and the level of permanence that is afforded to the child. However, other considerations also exist which should inform the choice made.

Of the two plans of care, guardianship is the most permanent when compared to a plan of custody with a third party. This greater permanence is made possible by North Carolina General Statute §7B-600’s mandate that guardianship may only be terminated if (i) the court finds that the relationship between the guardian and the juvenile is no longer in the juvenile’s best interest, (ii) the guardian is unfit, (iii) the guardian has neglected the guardian’s duties, or (iv) the guardian is unable or unwilling to continue to assume the guardian’s duties. N.C. Gen. Stat. 7B-600. Noticeably absent  from the list of reasons for terminating a guardianship is that a material change in circumstances has transpired which is the usual basis for the modification of a child custody order. Id. Thus, in the case where a grandparent is made a guardian over a grandchild under circumstances where the grandchild’s parent has been determined to be unfit, the termination of the guardianship would not be warranted merely because the grandchild’s parent has sought rehabilitation and has benefited from the same. It is for this very reason that many parent attorneys actively seek to have a plan of custody with a third party imposed as a primary plan, anticipating that their client may over time rehabilitate themselves and regain custody by showing to the juvenile court that there has been such a material change in circumstances such that their client is no longer unfit. 

Aside from the increased durability of guardianship, there are also other justifications for a primary plan of guardianship over a primary plan of custody with a third party. First, the policy objectives of the Juvenile Code require that the trial court provide the juvenile with a permanent home in the least possible time, not merely a temporary weigh-station along the path of childhood which can be disrupted as the fortunes of a parent rise from the ashes, sometimes years after the initial conferral of custody to a third party. Guardianship allows the child to be not only to be secure socially and materially (i.e. maintaining the home, the same school district and the like) but also in terms of emotional security. Guardianship, being the more permanent option for long-term placement, largely eliminates the possibility for the child to endure the psychological aspects of placement disruption, especially if the child is emotionally attached to their former caregiver. 

Finally, a plan of guardianship provides a relative safe harbor for the guardian caretakers of a child from continual litigation which would not likely be the case if the standard for placement modification were merely a material change in circumstances. Such a safe harbor provides relief from the need to expend financial resources defending the care giving arrangement and also gives the guardians stronger leverage against verbal attacks (with threats to remove legally remove the child or children) that so often come from parents or former guardians, caretakers or custodians who have become legally estranged.

The Adoption and Safe Families Act of 1997: 20 Years of Declining Time in Care for Foster Children

A recent article in the Wall Street Journal (Naomi Riley,“The White House Can Help Foster Kids” ( op-ed December 10, 2018), makes several astonishing claims alleging that children are languishing in foster care because states are violating federal law. As things would have it, such claims are the farthest from the truth. The substance of Ms. Riley’s allegations is that, first, states are not following the Adoption and Safe Families Act of 1997(ASFA), which requires among other things, that children be moved on to a plan of Termination of Parental Rights and Adoption  when their time in foster care has exceeded 15 of the prior 22 months. Second, Ms. Riley claims that states are not following the Metzenbaum Multi-Ethnic Placement Act of 1994 (MEPA). This law, as you will recall, prohibits the delay or denial of any adoption or placement in foster care on account of the race, color, or national origin of the child or of the foster or adoptive parents and requires states to diligently recruit ethnically and racially diverse potential foster and adoptive families.

As one would imagine, the time children spend in foster care is tracked by both the states as well as the federal government. In the August 10, 2018 Adoption and Foster Care Analysis and Reporting System (AFCARS) Report published by the U.S. Department of Health and Human Services, it turns out that the mean time for foster children in care in 2017 was 20.1 months with the median being at 12.9 months. If one were to compare these figures with data from 1998, one year after the Adoption and Safe Families Act was ratified and enacted in law, it turns out that the time children spent in foster care in 1998 was a mean of 32.6 months and a median time span of 20.5 months. Thus in the past twenty years, the mean and median time for children in foster care has been slashed by approximately 38%. Since the federal government does not run juvenile courts, the only possible party to blame for such progress can be the individual states. Thus, it seems rather illogical to claim that ASFA time frames are not being adhered to because if that was the case, you could hardly expect the time in care to go down at all, let alone by a measure of over one third.

This same AFSCAR data casts significant doubt about Ms. Riley’s other claim that states are violating MEPA as well. According to the August 10, 2018 report, the number of black children in foster care declined from a high of 43% in 1998 to 17% in 2017 as recorded in the August 10, 2018 AFCARS Report. At the same time, the number of Caucasian children in foster care increased from 35% in 1998 to 44% in 2007, not including Latino children.

While ASFA mandates a plan of care of Termination of Parental Rights and Adoption for children who have been in foster care for 15 of the past 22 months, some states, like North Carolina, have a lower threshold for a mandated plan change. In North Carolina, this threshold is 12 months. However, this mandate is only effective if a trial court can find that a child cannot safely be returned home because a parent, guardian, caretaker or custodian cannot provide a safe and appropriate home and will not likely be able to do so in the near future. As any child welfare attorney knows, this latter criterion is a difficult hurdle to overcome. Many caregivers from whom a child is removed only start working toward reunification at the 11th hour. If these positive efforts continue, they often defeat a termination proceeding. This only causes a child further delays in achieving permanence, the last thing you would want if your goal is to reduce overall the number of months a child spends in foster care.

Based on the AFCARS data, it seems that generally the states are doing a good job adhering to federal law. Naomi Riley, who would have the White House intervene to enforce federal law, may in fact trigger a panic among the states which in turn will create pressure to bring about termination actions sooner than they are warranted by the facts of a given case. It seems the best course of action is to stay the course, be judicious in the decision to change the plan to TPR/Adoption, and only initiate proceedings when it is reasonably clear that the TPR case can be won. This is the only way states can preserve their over-all record of maintaining a 20 year decline in the time children spend in foster care.