Permanency: What are the Options?

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by Kelle Gillmore, CASA Staff Attorney

Permanency planning is an important part of acting as Guardian Ad Litem.  The Adoption and Safe Families Act (ASFA), requires States to hold permanency hearings every 12 months when children are in alternative care.  In addition, States are required to pursue other permanent options for children once they are out of a parent’s home for 15 of the preceding 22 months.  As the Guardians Ad Litem, we have an inherent interest in making sure permanency is achieved in the most efficient and safest way possible while operating in the best interest of the child.  This includes making sure parents are offered all available services to achieve safe reunification.  If reunification with a parent fails, we look to Adoption, Guardianship, or Another Planned Permanent Living Arrangement to achieve permanency for the children we represent.

So what is the difference between adoption and guardianship?

Adoption is a legal process which permanently gives parental rights to an adoptive petitioner.  This legal process terminates the rights of the biological parents permanently and places the new adoptive petitioners as the parents for all legal intents and purposes.  The child is now an heir to the adoptive petitioners and those petitioners are legally bound to that child forever.  These petitioners could be individuals who never knew the child or family prior to Court intervention, they could be a kinship provider (someone the family or child knew before coming into care), or they could be a relative of the family including a grandparent or even adult child.  Regardless, these individuals petition the Court asking to be named the biological parent of the child.

Guardianship is a legal proceeding through the probate court in which the adult guardian is asking for an order to make decisions regarding the minor child as a parent would until that child reaches the age of 18.  Those decisions include educational, medical, and daily decisions for the child.  This form of permanency does allow a parent the opportunity to regain custody should they petition the Court and prove that they are fit, willing and able AND that it is in the child’s best interest.  This is a rather huge burden for a parent to prove because if a child has been living with the Guardian and thriving, it is unlikely that the parent can meet the burden of proof that it is in the child’s best interest to move him or her.  A Guardianship terminates upon the child’s 18th birthday and cannot be renewed or extended unless the child does not have the mental capacity to care for himself or herself.

When an older youth either does not have an adoptive resource or potential guardian, they achieve permanency though Another Planned Permanent Living Arrangement (APPLA). This however, is used only for older children or children who will not consent to being adopted or placed in guardianship.  Children over the age of 14 in Missouri have the right to consent or not consent to the Adoption or Guardianship.  If they will not consent, we look at other options, which include keeping them in alternative placement until they ultimately age out of the system at 21 years old or request to be released from jurisdiction after their 18th birthday.  APPLA can be a foster home, a kinship or relative home, a group home or even a child’s own apartment.

Each case and each child requires specific permanency planning and the Guardian Ad Litem has a duty to his or her client to consider all of these options.

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