SB95

By Senator Brewbaker

ENROLLED, An Act,

Relating to foster care and kinship guardianship; to amend Sections 12-15-301, 12-15-314, 12-15-315, 38-12-32, 38-12-35, 38-12-36, 38-12-37, 38-12-38, and 38-12-40 of the Code of Alabama 1975, to provide for the appointment of successor guardianships when a kinship guardian dies or is incapacitated; to require the juvenile court to consider services needed to assist a child to make the transition from foster care to independent living at the age of 14 instead of age 16; and to define age or developmentally appropriate childhood activities and reasonable and prudent parent standard for caregivers of children in foster care; and to provide that the reasonable and prudent parent standard would apply for purposes of caregiver liability.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 12-15-301, 12-15-314, 12-15-315, 38-12-32, 38-12-35, 38-12-36, 38-12-37, 38-12-38, and 38-12-40 of the Code of Alabama 1975, are amended to read as follows:

§12-15-301.

"For purposes of this article, the following words and phrases shall have the following meanings:

"(1) ABANDONMENT. A voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his or her presence, care, love, protection, maintenance, or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.

"(2) ABUSE. Harm or the risk of harm to the emotional, physical health, or welfare of a child. Harm or the risk of harm to the emotional, physical health, or welfare of a child can occur through nonaccidental physical or mental injury, sexual abuse, or attempted sexual abuse or sexual exploitation or attempted sexual exploitation.

"(3) AGE OR DEVELOPMENTALLY APPROPRIATE. Activities or items that are generally accepted as suitable for children of the same chronological age or level of maturity or that are determined to be developmentally appropriate for a child based on the development of cognitive, emotional, physical, and behavioral capacities that are typical for an age or age group and, in the case of a specific child, activities or items that are suitable for the child based on the developmental stages attained by the child with respect to the cognitive, emotional, physical, and behavioral capacities of the child.

"(3)(4) CAREGIVER. An individual 21 years of age or older, other than a parent, legal guardian, or legal custodian of a child who is an approved foster parent and who is a relative of the child and has been providing care and support for the child while the child has been residing in the home of the caregiver for at least the last six consecutive months while in the legal custody of the Department of Human Resources or a designated official for a child-placing agency or a successor guardian.

"(4)(5) CHILD-PLACING AGENCY. The same as the term is defined in subdivision (3) of Section 38-7-2.

"(5)(6) ELIGIBLE CHILD. In addition to the definition of child in subdivision (3) of Section 12-15-102, an individual under 18 years of age who has been residing with the caregiver for at least the last six consecutive months while in the legal custody of the Department of Human Resources.

"(6)(7) KINSHIP GUARDIAN. A caregiver who is willing to assume care of a child because of parental incapacity of a parent, legal guardian, or legal custodian, or other dependency reasons, with the intent to raise the child to adulthood, and who is appointed the kinship guardian of the child by a juvenile court. A kinship guardian shall be responsible for the care and protection of the child and for providing for the health, education, and maintenance of the child.

"(7)(8) NEGLECT. Negligent treatment or maltreatment of a child, including, but not limited to, the failure to provide adequate food, medical treatment, supervision, education, clothing, or shelter.

"(8)(9) PARENTAL INCAPACITY. Abandonment or incapacity of such a serious nature as to demonstrate that the parent, legal guardian, or legal custodian is unable, unavailable, or unwilling to perform the regular and expected functions of care and support of the child.

"(9)(10) PROTECTIVE SUPERVISION. A legal status created by order of the juvenile court following an adjudication of dependency whereby a child is placed with a parent or other person subject to supervision by the Department of Human Resources.

"(11) REASONABLE AND PRUDENT PARENT STANDARD. The standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child, while at the same time encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child in foster care under the responsibility of the state to participate in extracurricular, enrichment, cultural, and social activities.

"(10)(12) REASONABLE EFFORTS. Efforts made to preserve and reunify families prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from his or her home, and to make it possible for a child to return safely to his or her home. Reasonable efforts also refers to efforts made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanency placement of the child. In determining the reasonable efforts to be made with respect to a child, and in making these reasonable efforts, the health and safety of the child shall be the paramount concern.

"(11)(13) RELATIVE. An individual who is legally related to the child by blood, marriage, or adoption within the fourth degree of kinship, including only a brother, sister, uncle, aunt, first cousin, grandparent, great grandparent, great-aunt, great-uncle, great great grandparent, niece, nephew, grandniece, grandnephew, or a stepparent.

"(12)(14) SEXUAL ABUSE. Sexual abuse includes the employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or having a child assist any person to engage in, any sexually explicit conduct or any simulation of the conduct for the purpose of producing any visual depiction of the conduct. Sexual abuse also includes rape, molestation, prostitution, or other forms of sexual exploitation or abuse of children, or incest with children, as those acts are defined in this article or by Alabama law.

"(13)(15) SEXUAL EXPLOITATION. Sexual exploitation includes allowing, permitting, or encouraging a child to engage in prostitution and allowing, permitting, encouraging, or engaging in the obscene or pornographic photographing, filming, or depicting of a child.

"(16) SUCCESSOR GUARDIAN. A person or persons named in a kinship guardianship assistance agreement, or any amendments thereto, as the person or persons to provide care and guardianship for a child in the event of the death or incapacity of a kinship guardian. The successor guardian may be unrelated to the child.

"(14)(16) TERMINATION OF PARENTAL RIGHTS. A severance of all rights of a parent to a child.

§12-15-314.

"(a) If a child is found to be dependent, the juvenile court may make any of the following orders of disposition to protect the welfare of the child:

"(1) Permit the child to remain with the parent, legal guardian, or other legal custodian of the child, subject to conditions and limitations as the juvenile court may prescribe.

"(2) Place the child under protective supervision under the Department of Human Resources.

"(3) Transfer legal custody to any of the following:

"a. The Department of Human Resources.

"b. A local public or private agency, organization, or facility willing and able to assume the education, care, and maintenance of the child and which is licensed by the Department of Human Resources or otherwise authorized by law to receive and provide care for the child.

"c. A relative or other individual who, after study by the Department of Human Resources, is found by the juvenile court to be qualified to receive and care for the child. Unless the juvenile court finds it not in the best interests of the child, a willing, fit, and able relative shall have priority for placement or custody over a non-relative.

"(4) Make any other order as the juvenile court in its discretion shall deem to be for the welfare and best interests of the child.

"(5) In appropriate cases, award permanent custody to the Department of Human Resources or to a licensed child-placing agency after termination of parental rights and authorization to place for adoption, without appointing a legal guardian, or award temporary custody to the department or a licensed child-placing agency without appointing a legal custodian or legal guardian.

"(b) Unless a child found dependent shall also be found to be delinquent, the child shall not be confined in an institution established for the care and rehabilitation of delinquent children or in a juvenile detention facility. Nothing in this subsection shall be construed to prohibit the placement of dependent children in any other residential facility as defined in subdivision (22) of Section 12-15-102.

"(c) There shall be a rebuttable presumption that children cannot be removed from the custody of their parents solely because of a need for emergency housing.

"(d) In providing shelter or other care for children referred to or coming under the jurisdiction of the juvenile court, the juvenile court and the Department of Human Resources shall utilize only those facilities as have been established, licensed, or approved by law, or by agencies pursuant to law, for those purposes.

"(e) When a child is placed in the legal custody of the Department of Human Resources or any other department, agency, organization, entity, or person pursuant to this section and when the parent, legal guardian, or legal custodian of the child has resources for child support, the juvenile court shall order child support in conformity with the child support guidelines as set out in Rule 32, Alabama Rules of Judicial Administration. The child support shall be paid to the Department of Human Resources or department, agency, any other organization, entity, or person in whose legal custody the child is placed and may be expended for those matters that are necessary for the welfare and well-being of those children placed in the Department of Human Resources or any other departments, agencies, organizations, entities, or person. In these cases, the juvenile court shall issue income withholding orders subject to state law. Any petition alleging dependency of a child filed by the Department of Human Resources shall contain a request for child support.

"(f)(1) After a child has been placed in the legal custody of the Department of Human Resources, the department may file with the juvenile court a written request for appointment of a kinship guardian in cases where the juvenile court has entered an order under Section 12-15-315 affirming kinship guardianship as the permanent plan for the child.

"(2) If the kinship guardian dies or becomes incapacitated, the department or the named prospective successor guardian in the kinship guardian subsidy agreement may file a written request for appointment of the successor guardian. The department or the prospective successor guardian may file for an ex parte order of temporary guardianship pending a hearing on the written request for appointment of a successor guardian.

"(2)(3) A written request for appointment of a kinship guardian or successor guardian shall be verified and allege the following with respect to the child:

"a. Facts that if proved will meet the requirements for a kinship guardianship or successor guardianship.

"b. The date and place of birth of the child, if known, and if not known, the reason for the lack of knowledge.

"c. The legal residence of the child and the place where he or she resides, if different from the legal residence.

"d. The marital status of the child, if applicable.

"e. The name and home and business addresses of an individual caregiver sought to be appointed as a kinship guardian or successor guardian and all residents of that individual's household.

"f. The relationship between the individual caregiver sought to be appointed as a kinship guardian or successor guardian and the child.

"g. The names and home and business addresses of the parents of the child, if known.

"h. The names and home and business addresses of legal guardians or legal custodians.

"i. The existence of any pending matters involving the custody of the child.

"j. A signed statement from the individual caregiver sought to be appointed as a kinship guardian or successor guardian that the individual agrees to accept the duties and responsibilities of being a kinship guardian or successor guardian.

"k. The existence of any other matters pending in the juvenile court involving the child and, if they exist, a statement that departments, agencies, individuals, or entities authorized or involved in the proceedings, by law or court order, consent to the relief requested.

"l. The results of a criminal history record background check and a child abuse record check of the individual caregiver seeking to be appointed as a kinship guardian or successor guardian and all adult residents of the household of the individual caregiver. In addition, the results of a child abuse record check of the individual caregiver seeking to be appointed as a kinship guardian or successor guardian and all residents 14 years or older of the household of the individual caregiver.

"m. Whether the child is subject to provisions of the federal Indian Child Welfare Act of 1978, 25 U.S.C. §1901, and, if so:

"1. The tribal affiliations of the parents, legal guardians, or legal custodians of the child; and

"2. The specific actions taken to notify the tribes of the parents, legal guardians, or legal custodians and the results of the contacts.

"n. Other relevant facts in support of the written request to be appointed as a kinship guardian or successor guardian.

"(3)(4) After the juvenile court finds that an individual caregiver qualifies to be appointed as a kinship guardian, the requirements of subdivision (5) or (6) have been proved, and the best interests of the child will be served by the requested appointment, it may make the appointment. After a kinship guardianship appointment, the juvenile court may make any other disposition of the matter that will serve the best interests of the child.

"(4)(5) A kinship guardian may be appointed by the juvenile court only if:

"a.1. A parent, legal guardian, or legal custodian of the child is living and has consented in writing to the appointment of a kinship guardian and the consent has not been withdrawn; or

"2. A parent of the child is living but all parental rights in regard to the child have been terminated or restricted by a prior court order, provided that for this purpose only, the blood relationship with the child will continue to be recognized in defining relative caregiver; and

"b.1. The child has resided with the individual caregiver seeking to be appointed as a kinship guardian without the parent, legal guardian, or legal custodian for a period of six months or more immediately preceding the date the written request is filed, and a parent, legal guardian, or legal custodian having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance, and supervision for the child or there are extraordinary circumstances; and

"2. No legal guardian of the child is currently appointed pursuant to the Alabama Uniform Guardianship and Protective Proceedings Act, Chapter 2A of Title 26.

"(6) A successor guardian may be appointed by the juvenile court only if all of the following requirements have been met:

"a. The original kinship guardian subsidy agreement or amendments to such agreement names the prospective successor guardian as the person to become the legal guardian of the child in the event of the death or incapacitation of the kinship guardian.

"b. A parent, legal guardian, or legal custodian of the child has consented in writing to the appointment of the successor guardian named in the original subsidy agreement unless all parental rights have been terminated or restricted by a prior court order.

"c. The department has completed a criminal history record check on the prospective successor guardian and all adult residents of the household of the prospective successor guardian. The department also has completed a child abuse record check on the prospective successor guardian and all residents 14 years or older of the household of the individual caregiver.

"d. No legal guardian of the child is currently appointed pursuant to the Alabama Uniform Guardianship and Protective Proceedings Act, Section 26-2A-1.

"e. A child that is 14 years of age or older must be consulted as to his or her position regarding the prospective successor guardianship and if the child is 18 years or older, he or she has consented to the successor guardianship if capable of giving effective consent.

"(5)(7) The burden of proof shall be by clear and convincing evidence, except that in those cases involving an Indian child as defined in the federal Indian Child Welfare Act of 1978, 25 U.S.C. §1901, the burden of proof shall be proof beyond a reasonable doubt.

"(6)(8) As part of a kinship guardianship order or successor guardianship order, the juvenile court may order a parent, legal guardian, or legal custodian to pay the reasonable costs of support and maintenance of the child that the parent, legal guardian, or legal custodian is financially able to pay. The juvenile court shall use the Child Support Guidelines established by rules of the Alabama Supreme Court to calculate a reasonable payment.

"(7)(9) The juvenile court may order visitation between a parent, legal guardian, or legal custodian and the child to maintain or rebuild a parent-child relationship if the visitation is in the best interests of the child.

"(8)(10)a. A kinship guardianship or successor guardianship is intended to be permanent during the child's minority similar to other permanency plan options. After the kinship guardian or successor guardian has been appointed by the juvenile court, a parent, other person, entity, department, or agency, including the Department of Human Resources, may file a petition to revoke or modify the kinship guardianship or successor guardianship by proving not only that a material change in circumstances has occurred since the order granting the kinship guardianship or successor guardianship was entered, but also that the change would materially promote the child's best interest and welfare, and that the positive good brought about by the change would more than offset the inherently disruptive effect caused by uprooting the child.

"b. If the juvenile court finds that a petition for revocation of the kinship guardianship or successor guardianship filed by the Department of Human Resources meets the standard in paragraph a., it shall grant the petition, and the child shall be placed in the legal custody of the Department of Human Resources. If the juvenile court finds that a petition for modification of the kinship guardianship or successor guardianship filed by the Department of Human Resources meets the standard in paragraph a., it shall grant the petition, and the child shall remain with the kinship guardian or successor guardian but shall be under the protective supervision of the department.

"c. This subsection does not preclude a parent, other person, entity, department, or agency, including the Department of Human Resources, from filing a petition to modify other terms of the order of the juvenile court granting the kinship guardianship or successor guardianship, including, but not limited to, visitation, which shall be decided, after notice to the department, on the basis of what is in the best interests of the child.

"(9)(11)a. Except as provided herein, a kinship guardian or successor guardian shall have the same rights, responsibilities, and authority relating to the child as a parent, including, but not limited to, making decisions concerning the care and well-being of the child; consenting to routine, preventative, necessary, elective, cosmetic, and emergency medical, dental, and mental health needs; arranging and consenting to educational plans for the child; arranging and consenting to athletic, sport, or other activity participation; applying for financial assistance and social services for which the child is eligible; applying for a permit or license; applying for admission to a college or university; responsibility for activities necessary to ensure the safety, permanency, and well-being of the child; and ensuring the maintenance and protection of the child, and further provided, that the appointment of the kinship guardian or successor guardian terminates the education rights of the parent in favor of the kinship guardian or successor guardian and the kinship guardian or successor guardian shall be deemed the parent for federal IDEA and other educational purposes.

"b. A kinship guardian or successor guardian may not consent to the adoption of the child or a name change for the child. The parent of the child shall retain the authority to consent to the adoption of the child or a name change for the child.

"c. The parent, legal guardian, or legal custodian from whose custody the child was removed shall retain the obligation to pay child support.

"d. Unless otherwise ordered by the juvenile court, a kinship guardian or successor guardian has the authority to make all decisions regarding appropriate visitation between the parent, legal guardian, or legal custodian and the child.

"e. The appointment of a kinship guardian or successor guardian does not limit or terminate any rights or benefits derived from or between the child and parent, legal guardian, or legal custodian relating to inheritance or insurance.

"f. A kinship guardianship or successor guardianship terminates when the child reaches 18 years of age, or when the child reaches age 21 if the child is eligible for a guardianship subsidy up to age 21 regardless of whether the juvenile court has continued jurisdiction, or when the kinship guardianship or successor guardianship is otherwise terminated or revoked by the juvenile court.

"g. A certified copy of the court order appointing a kinship guardian or successor guardian shall be satisfactory proof of the authority of the kinship guardian or successor guardian, and letters of guardianship need not be issued.

"h. A kinship guardianship or successor guardianship order is the legal authority to enroll the named child in school and consent to school-related activities and medical care for the child; to give permission or consent for other non-school related activities, placements, and events; and to enroll the child in health, homeowner, employment, motor vehicle, and other insurance.

"i. A kinship guardianship or successor guardianship order is the legal authority for the kinship guardian or successor guardian to authorize or consent to medical care, dental care, and mental health care for the child.

"j. Absent negligence, wantonness, recklessness, or deliberate misconduct, no person who acts in good faith reliance on a kinship guardianship or successor guardianship order without actual knowledge of facts contrary to that order is subject to criminal or civil liability or professional disciplinary action. This good faith immunity applies even though a parent, legal guardian, or legal custodian having parental rights or a person having legal custody of the child has contrary wishes. A person who relies upon a kinship guardianship or successor guardianship order is under no duty to make further inquiry or investigation.

"(g)(1) A caregiver shall have the authority, without prior approval of the department, juvenile court, or circuit court, to allow a child in his or her care that is in foster care to participate in activities that are age or developmentally appropriate for the child based on a reasonable and prudent parent standard, provided the activities are consistent with provisions of any existing court order, individualized service plan, or promulgated policy of the department that provides guidance to caregivers concerning the reasonable and prudent parent standard. The guidance shall include factors for the caregiver to consider prior to allowing a child to participate in age or developmentally appropriate normal childhood activities.

"(2) A caregiver shall be immune from liability in a civil action to recover damages for injury, death, or loss to person or property that results from a caregiver's decisions using a reasonable and prudent parent standard. This subsection shall not be construed to remove or limit any existing liability protection provided by law.

§12-15-315.

"(a) Within 12 months of the date a child is removed from the home and placed in out-of-home care, and not less frequently than every 12 months thereafter during the continuation of the child in out-of-home care, the juvenile court shall hold a permanency hearing. The Department of Human Resources shall present to the juvenile court at the hearing a permanent plan for the child. The juvenile court shall consult with the child, in an age-appropriate manner, regarding the permanency plan and any transition plan to independent living. If a permanent plan is not presented to the juvenile court at this hearing, there shall be a rebuttable presumption that the child should be returned home. This provision is intended to ensure that a permanent plan is prepared by the Department of Human Resources and presented to the juvenile court within 12 months of the placement of any child in foster care and no less frequently than every 12 months thereafter. The purpose of the permanency hearing shall be to determine the permanency plan for the child which may include whether, and, if applicable, when, the child shall be:

"(1) Returned home on a specific date.

"(2) Placed for adoption with no identified resource or with the current foster parent wherein the Department of Human Resources shall file a petition for termination of parental rights.

"(3) Permanently placed with a relative with a transfer of legal and physical custody to the relative or with a transfer of physical custody to the relative but with the Department of Human Resources retaining legal custody.

"(4) Permanently placed with a kinship guardian pursuant to a written request filed by the Department of Human Resources for appointment of an individual as a kinship guardian. In addition to the allegations set forth in this section, the written request shall further contain the following:

"a. That granting kinship guardianship of the child to the relative caregiver is in the best interests of the child and that neither a permanency goal of return of the child to the parents of the child nor adoption would be in the best interests of the child and are therefore not appropriate permanent plans for the child.

"b. That granting a kinship guardianship of the child to the relative caregiver will provide the child with a safe and permanent home.

"c. That the child demonstrates a strong attachment to the relative caregiver and the relative caregiver demonstrates a strong commitment to caring permanently for the child.

"d. That the relative caregiver has been approved as a foster parent pursuant to regulations of the Department of Human Resources, has completed a criminal history clearance and child abuse and neglect central registry clearance, and that results of these clearances have been provided to the juvenile court.

"e. That the child has been in foster care in the care of the prospective kinship guardian for a period of not less than six consecutive months preceding the filing of the written request for appointment of a kinship guardian.

"f. That, if the child A child who is 14 years of age or older, he or she has indicated his or her position shall be consulted as to his or her position regarding the prospective kinship guardianship and, if the child is 18 years of age or older, he or she has consented to the kinship guardianship if capable of giving effective consent.

"(5) Placed in adult custodial care.

"(6) Placed in another planned permanent living arrangement. In the case of a child who will not be returned home, at the permanency hearing, the juvenile court shall consider in-state and out-of-state placement options.

"(b) If the juvenile court determines the permanent plan under subsection (a) shall be placement in another planned permanent living arrangement, the Department of Human Resources must document to the juvenile court a compelling reason for determining that it would not be in the best interests of the child to return home, be placed for adoption with no identified resource or with the current foster parent, or be permanently placed with a relative, with a transfer of legal and physical custody to the relative or with a transfer of physical custody to the relative but with the Department of Human Resources retaining legal custody, be placed with a kinship guardian, or be placed in adult custodial care. If the child has been placed in foster care outside the State of Alabama, at the permanency hearing, the juvenile court shall determine whether the out-of-state placement continues to be appropriate and in the best interests of the child. In the case of a child who has attained the age of 16 14 years, at the permanency hearing, the juvenile court shall consider the services needed to assist the child to make the transition from foster care to independent living. In any permanency hearing held with respect to the child, including any hearing regarding the transition of the child from foster care to independent living, the juvenile court shall consult, in an age-appropriate manner, with the child regarding the proposed permanency or transition plan for the child. Permanency plans may be concurrent and the Department of Human Resources may make reasonable efforts concurrently towards multiple permanency goals.

"(c) The permanency hearing order of the juvenile court shall address whether the Department of Human Resources has made reasonable efforts to finalize any existing permanency plan for the child.

"(d) The Department of Human Resources shall provide a copy of available health and education records of the foster child to the foster parent or foster care provider at the time of placement and provide a copy of available health and education records to the foster child, at no cost, at the time the child is emancipated or released from foster care by reason of attaining the age of majority.

"(e) If the permanency plan for a child is placement with a kinship guardian, the individualized service plan must contain the following:

"(1) The steps that the Department of Human Resources has taken to determine that it is not appropriate for the child to be returned home or adopted.

"(2) The reasons for any separation of siblings during placement.

"(3) The reasons why a permanent placement with a fit and willing relative caregiver through a kinship guardianship arrangement is in the best interests of the child.

"(4) The ways in which the child meets the eligibility requirements for the kinship guardianship program.

"(5) The efforts the Department of Human Resources has made to discuss adoption by the relative foster parent of the child as a more permanent alternative to a kinship guardianship and, in the case of a relative foster parent who has chosen not to pursue adoption, documentation of the reasons therefor.

"(6) The efforts made by the Department of Human Resources to discuss with the parent, legal guardian, or legal custodian of the child the kinship guardianship arrangement, or the reasons why the efforts were not made.

§38-12-32.

"As used in this article, the following terms shall have the following meanings:

"(1) CAREGIVER. An individual 21 years of age or older, other than a child's parent, legal guardian, or legal custodian who is an approved foster parent, who is a relative of the child, and who has been providing care and support for the child while the child has been residing in the caregiver's home for at least the last six consecutive months while in the legal custody of the Department of Human Resources, a designated official for a child-placing agency, or a successor guardian.

"(2) CHILD. An individual under 18 years of age who is in foster care with the caregiver and over whom a court has exercised continuing jurisdiction.

"(3) COURT. The juvenile court.

"(4) DEPARTMENT. The Department of Human Resources.

"(5) KINSHIP GUARDIAN. A caregiver who is willing to assume care of a child because of parental incapacity of a parent, legal guardian, legal custodian, or other dependency reason, with the intent to raise the child to adulthood, and who is appointed the kinship guardian of the child by a juvenile court. A kinship guardian shall be responsible for the care and protection of the child and for providing for the health, education, and maintenance of the child.

"(6) PARENTAL INCAPACITY. Abandonment or incapacity of such a serious nature as to demonstrate that the parent, legal guardian, or legal custodian is unable, unavailable, or unwilling to perform the regular and expected functions or care and support of the child.

"(7) PROGRAM. The Kinship Guardianship Subsidy Program established by Section 38-12-33.

"(8) RELATIVE. An individual who is legally related to the child by blood, marriage, or adoption within the fourth degree of kinship, including only a brother, sister, uncle, aunt, first cousin, grandparent, great grandparent, great aunt, great uncle, great great grandparent, niece, nephew, grand niece, grand nephew, or a stepparent.

"(9) SUCCESSOR GUARDIAN. A person or persons named in a kinship guardianship assistance agreement, or any amendment thereto, as the person or persons to provide care and guardianship for a child in the event of the death or incapacity of a kinship guardian. The successor guardian may be unrelated to the child.

§38-12-35.

"The amount of a kinship guardianship subsidy shall be determined according to this section and as provided by rules of the department. The subsidy may be paid monthly and the monthly amount may not exceed the monthly foster care maintenance board payment for the child if the child were to remain in the care or custody of the department, without regard to the sources of the funds. No foster care maintenance board payment and kinship subsidy payment shall be paid for the same child for the same period of time. The kinship guardianship subsidy may only be provided for an eligible child. Subject to rules adopted by the department, the subsidy may include up to the federally established amount for nonrecurring expenses, including attorney's fees, incurred by the kinship guardian or successor guardian to complete the kinship guardianship or successor guardianship in court. Subsidy payments are subject to the availability of funds and the allocation of funding by the department.

§38-12-36.

"Provided that federal funding is available, the kinship guardianship subsidy shall continue until the following occur:

"(1) The child who is being cared for by the kinship guardian or successor guardian reaches age 18 years, or age 21 if the child has attained age 16 before the kinship subsidy agreement became effective, and the child is:

"a. Completing secondary education or a program leading to an equivalent credential.

"b. Enrolled in an institution which provides postsecondary or vocational education.

"c. Participating in a program or activity designed to promote, or remove barriers to, employment.

"d. Employed for at least 80 hours per month.

"e. Incapable of doing any of the activities described in paragraphs a. through d. due to a medical condition, which incapability is supported by regularly updated information in the case plan of the child, if applicable.

"(2) The kinship guardian or successor guardian is no longer legally responsible for support of the child.

"(3) The kinship guardian or successor guardian is no longer providing support to the child under the care of the kinship guardian or successor guardian, at which time the kinship guardianship subsidy ceases.

§38-12-37.

"(a) Applications for the program may be submitted by a prospective kinship guardian. A written agreement between the prospective kinship guardian entering into the program and the department shall precede the award of a kinship guardianship. The kinship guardianship subsidy agreement and kinship guardianship subsidy shall become effective only upon entry of an order of a court awarding kinship guardianship. The agreement shall specify, at a minimum, the following:

"(1) The amount of, and manner in which, each kinship guardianship assistance payment will be provided under the agreement, and the manner in which the payment may be adjusted periodically, in consultation with the relative guardian, based on the circumstances of the relative guardian and the needs of the child.

"(2) The additional services and assistance that the child and relative guardian or successor guardian will be eligible for under the agreement.

"(3) The procedure by which the relative guardian or successor guardian may apply for additional services as needed.

"(4) That the department will pay the cost of nonrecurring expenses associated with obtaining a legal order of kinship guardianship or successor guardianship of the child, to the extent the cost does not exceed the federally established amount.

"(b) No kinship guardianship subsidy shall be made unless satisfactory documentation is submitted by the kinship guardian or successor guardian showing an eligible child lives in the home of the kinship guardian or successor guardian. Upon approval by the department that all the requirements for payment eligibility have been satisfied, the kinship guardianship subsidy may be retroactive to the date of the court order appointing kinship guardianship.

"(c) The kinship guardianship assistance agreement executed in accordance with this section and any amendments thereto may name an appropriate person to act as a successor guardian for the purpose of providing care and guardianship for a child in the event of death or incapacity of the relative guardian.

"(d) A child shall remain eligible for kinship guardianship assistance payments under this title when a successor guardian assumes care and guardianship of the child.

"(e) The department shall complete a criminal history record check on the prospective successor guardian and all adult residents of the household of the prospective successor guardian before approval to receive payments. The department also shall complete a child abuse record check on the prospective successor guardian and all household members that are 14 years or older before approval to receive payments.

"(f) It shall be the duty of the prospective successor guardian to inform the social services official that has entered into an agreement with the relative guardian for payments under this title in writing of the death or incapacity of the relative guardian and of the prospective successor guardian's desire to enforce the provisions in the agreement that authorize payment to him or her in the event of the death or incapacity of the kinship guardian.

§38-12-38.

"If the subsidy continues for more than one year, the eligibility for and amount of the subsidy shall be reviewed at least annually by the department as provided by rule. The subsidy continues regardless of the state in which the kinship guardian or successor guardian resides, or the state to which the kinship guardian or successor guardian moves, if the kinship guardian or successor guardian continues to be responsible for the child, provided funding is available.

§38-12-40.

"Except as required by federal law or regulation, the kinship guardianship subsidy may not be counted as a resource or income in the determination of the kinship guardian's, successor guardian's, or child's eligibility for any public benefits or assistance. Kinship guardianship subsidy payments shall be exempt from any tax levied by the state or any subdivision thereof and shall be exempt from levy, garnishment, attachment, or any other process whatsoever and shall be inalienable."

Section 2. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Children

Foster Care

Guardians

Kinship Guardians

Human Resources Department

Civil Procedure

Code Amended