425 Testa, supra note 237, at 521–34. 426 Clare Huntington has argued:
By providing financial support for permanent care by family members, the state is less overtly involved in the lives of the family, increasing stability and permanency in children’s lives, and leaves the door open to contact between biological parents and children. This makes it more likely that a child can have strong, stable, positive relationships with both parents and family guardians. HUNTINGTON, supra note 15, at 129.
427 The Family First Prevention Services Act (P.L. 115-123), enacted by Congress on February 9,
2018, provides expanded opportunities for states to support kinship families. See The Family First Prevention Act: Historic Reforms to the Child Welfare System Will Improve Outcomes for Vulnerable Children, CHILDREN’S DEFENSE FUND (Feb. 2018), https://www.childrensdefense.org/wp- content/uploads/2018/08/family-first-detailed-summary.pdf.
428 See, e.g., ME.REV.STAT., tit. 20-A, § 5205(2) (2017) (permitting schools to enroll a child
“residing with another person who is not the student’s parent” if it would be in the child’s best interest); COLO.REV.STAT. § 22-1-102 (2019) (providing several bases on which a school may enroll a child who is not living with a parent). Some children living with relatives may be classified as “homeless” and eligible to enroll in the district where they live pursuant to the McKinney-Vento Homeless Assistance Act of 1987 (Pub. L. 100-77, July 22, 1987, 101 Stat. 482, enacting 42 U.S.C. § 11301 et seq.).
429 See, e.g., ME.REV.STAT., tit. 22, §1503-A (2016).
430 John W. Ellis, Yours, Mine, Ours? Why the Texas Legislature Should Simplify Caretaker Consent Capabilities for Minor Children and the Implications of the Addition of Chapter 34 to The Texas Family Code, 42 TEX.TECH.L.REV. 987, 1000–19 (2010) (discussing various approaches to state caregiver consent laws and the problems and implications of the same).
431 For example, not all education and health care providers will accept written consent as sufficient
authority to provide services. HARALAMBIE,supra note 11, at § 11:5; GENERATIONS UNITED,State Educations and Health Care Consent Laws, AM. BAR ASSOC. (Jan. 9, 2018),
2019] KEEPING IT IN THE FAMILY 347
provide the necessary authority in some contexts and would ensure that a parent’s decision-making rights and role are protected and preserved.432
Because guardianship can result in conflict between the most important people in a child’s world, a guardianship appointment should be made only if it is found to be truly necessary and when no less restrictive means can be used to address the child’s needs.433
In addition to providing parents and caregivers with a range of options, states should provide the resources to enable families to learn, assess, and implement these options. Many families that could benefit from a guardianship appointment or other strategies do not pursue them because they lack the knowledge and tools to do so. Ideally, civil legal aid services should be available to inform and advise parents and relative caregivers. In addition, kinship navigators (who are not usually attorneys) should be provided to inform relative caregivers about their options and how to access services. These navigators are available in a handful of states now with the support of federal funding.434 In some guardianship cases, a relative
caregiver and parent may not need to work with attorneys, especially if the appointment is consensual and the court provides a mediator or other neutral party to assist the family with developing the guardianship plan. But because these matters can be or become more complicated, the parties should have access to counsel, including free legal aid.
I now turn to the specific features that states’ minor guardianship laws should include to reflect and to serve their contemporary use for child protection. Present guardianship laws and procedure overlook the importance of how the appointment is made, which can provide an opportunity to set the entire proceeding on a track to stability and effective reunification.
Guardianship laws should require courts to assess the suitability of the petitioner before the appointment is made. In some states, a guardian must already be a caregiver for the child or be a close relative or otherwise have a close relationship with the child.435 Permanency guardianship laws include
https://www.americanbar.org/groups/child_law/resources/child_law_practiceonline/child_law_practice/ vol-33/june-2014/state-educational-and-health-care-consent-laws/; See e.g.,W.VA.CODE § 49-11-1 to 49-11-10 (2010).
432 UNIF.PROBATE CODE § 5-105. The ULC made this an optional provision in the UGCOPAA,
because it was not a guardianship; UNIF.GUARDIANSHIP,CONSERVATORSHIP, AND OTHER PROT. ARRANGEMENTS ACT § 128, note (“[T]he subject matter of this section is more appropriately included in a state’s general family law statutes”).
433 In addition, as other commentators have urged, states should provide services and supports to
the family that may prevent the crisis from reaching the point where the child cannot live safely with a parent. This means access to health care, including mental health and substance use treatment, as well as basic economic and housing security. See supra note 276 and accompanying text.
434 Berrick & Hernandez, supra note 7, at 31 (advocating for expanded availability of kinship
navigators to improve families’ ability to pursue minor guardianship). For example, the Maine Kinship Advisory Group released a January 2018 report to the Maine Legislature describing the needs of kinship families in the “informal” kinship system for information and resources. (Report on file with author).
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similar requirements and can serve as models here.436 In addition to requiring
guardians to have a specific prior connection with the child, guardianship laws should reflect the role that most guardians play today and include language regarding assessment of their suitability for these duties.437
Where a parent is consenting to the guardianship, and thereby waiving their constitutional rights, the court should ensure that such consent is fully informed.438 Specifically, parents should understand the implications of the
guardianship for their parental rights, the process for terminating the guardianship, including the fact that they cannot simply revoke their consent and resume their role as parent.439 This understanding can be reflected in a
court form outlining information about the guardianship that is signed by the consenting parent with the assistance of counsel.440 Guardians too must be
informed of their responsibilities, what the guardianship does and does not mean, and how it may end.
Whether or not the appointment is made with the consent of the parent, the statute should require the court to adopt a guardianship plan as a court order. If possible, the plan should be devised with the engagement of the guardian and parent, perhaps assisted by a guardian ad litem, child’s attorney, or visitor. At a minimum, the court should make mediation resources available to the family to work through the terms of a plan, which can be presented to the court for review, modification, and approval. Court forms can also be used to ensure that the guardianship plan addresses all necessary components. While these tools—mediators, attorneys, guardians
ad litem, visitors etc.— involve cost, the expenditure serves as protection
against future costs. Participation in mediation and, as necessary, receiving counseling can better enable the family members to identify solutions, as