Guardianship is supposed to be a permanent plan for a
juvenile but increasingly is viewed as a temporary arrangement for children until
the child’s parents can get their act together. This view is contrary to the
spirit and letter of the law and district court judges should be exceedingly cautious
to assure that appointed guardians are in it for the long haul.
As a general proposition, Guardianship in a Juvenile Case pursuant
to N.C. General Statute 7B-600 can be conferred at any time during the pendency
of a case, even prior to the adjudication if the child appears at a hearing
with no parent. N.C. Gen. Stat. 7B-600(a). For the most part, however,
guardianship is only appropriate only where “the court has determined that the
appointment of a relative or other suitable person as guardian of the person
for a juvenile is a permanent plan. Id.
at (b).
The reason that guardianship is an ideal permanent plan is
that, aside from termination of parental rights, it is structurally the most
permanent. To dissolve a guardianship, it is entirely insufficient to merely
show that a material change of circumstances has transpired with regard to
either the parent or the child. In re
Williamson, 77 N.C. App. 53 (1985). Rather, one must show the guardian is unwilling or unable to serve, has neglected the child, the guardian is unfit or that continuation of the guardianship is contrary to the best interests of the juvenile. Id. So it really doesn’t matter that mom
has “found Jesus” and spends her days distributing alms to poor or that Dad has
suddenly decided, after 41 years, to get his first job, buy a home and marry
his fifteenth paramour.
All of this is decidedly immaterial.
But it will be objected to that the Guardian must be willing to
serve as guardian and in light of changed circumstances, many guardians,
usually paternal or maternal grandparents, are all too willing to return to the
status of grandparents and let the actual biological parents take charge for
once. Thus, the occasion which gives rise to many guardianship dissolutions.
This specter, which is haunting our fruited plain, must be
confronted head-on.
Guardianship, to be a permanent plan, should be, well, . . . permanent! This means that when the court is examining a proposed guardian
about their ability to serve as guardian physically and financially and about
whether they understand the responsibilities of guardianship, and exchange like
this should probably occur:
JUDGE: SO
AFTER EXAMINATION, I WILL FIND THAT YOU ARE PHYSICALLY AND FINANCIALLY ABLE TO PROVIDE FOR LITTLE JIMMY BUT I HAVE ONE MORE
QUESTION FOR YOU.
PROPOSED
GUARDIAN: YES YOUR HONOR, ASK
AWAY.
JUDGE: DO YOU KNOW
WHAT PERMANENT MEANS?
PROPOSED
GUARDIAN: WHY YES, THAT
MEANS A LONG TIME.
JUDGE: MORE THAN “A
LONG TIME”. IT CAN MEAN UNTIL YOU ARE PLANTED IN THE GROUND FERTILIZING DAISIES.
PROPOSED
GUARDIAN: YOU MEAN WHEN I
AM DEAD?
JUDGE: STONE COLD
DEAD. I WANT YOU TO BE ABLE TO SAY YOU BE WILLING TO SERVE AS LITTLE JIMMY’S GUARDIAN NO
MATTER WHAT MAY COME. IF YOUR SON AND HIS GIRLFRIEND STOP USING DRUGS, NO
MATTER. YOU STILL WILL BE JIMMY’S GUARDIAN. IF
THEY CURE CANCER, YOU STILL WILL GUARDIAN.
IF THEY GIVE YOU $70 MILLION DOLLARS,
YOU WILL STILL BE GUARDIAN. THAT KIND OF PERMANENT, UNTIL JIMMY TURNS
18 OR YOU ARE DEAD, WHICHEVER COMES FIRST.
PROPOSED
GUARDIAN: WELL, SINCE YOU
PUT IT THAT WAY. . . .
Every child deserves permanence. Permanence should last until a child
reaches the age of majority, where, presumably, the child can handle great
shocks to the system, like moving to another household and having another care
provider. Thus proposed guardians should be required to assure the trial court
that they aren’t going to buckle at the knees the first sign that the
biological parents are finally growing up. Guardianship can only be conferred
when a parent continues to demonstrate over a period of nearly twelve months,
that they are fundamentally unfit to parent. Once guardianship is conferred, a
parent that has demonstrated unfitness has forfeited future claims to the care
and custody of their child, even if they later show signs of rehabilitation.
This is why judges should hold prospective guardians accountable. Forfeiture is
forfeiture and permanence is permanence. The best interests of the child
require, except is truly extraordinary circumstances, that there can be no
going back.
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