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.