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§7.12 Guardianship

If you find that terminating parental rights or adoption is not in the child’s best interests or that termination will be detrimental to the child, you may appoint a legal guardian at the .26 hearing and issue letters of guardianship. [WIC §366.26(b)(3), (5), (d); CRC 5.725(d)(6), (f), 5.735(d)(1); see forms JV-320, JV-330.]

You must consider legal guardianship before foster care if it is in the child’s best interests and a suitable guardian is found. You may not order a guardianship, however, if it requires moving the child from capable caretakers who do not wish to assume a guardianship role, and removal would seriously impair the child’s emotional well-being. [WIC §366.26(c)(4); CRC 5.725(d)(6).]

You may appoint as guardian a relative who is unable to adopt the child due to circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, and removal of the child from the relative’s custody would be detrimental to the child’s emotional well-being. [WIC §366.26(c)(1)(A).]

In a case involving an Indian child, the definition of relative for guardianship purposes includes extended family members as defined by ICWA. [25 USC §1903(2); WIC §§224.1(b), 366.26(c)(1)(A).]

A child who is 10 or older must be asked to identify any adults who are important to him or her in order for the agency to investigate and for you to determine whether any of these adults would be appropriate legal guardians or, if an Indian child, prospective tribal customary adoptive parents. Other children may be asked as appropriate. [WIC §§366.24, 366.26(c)(4)(A), 366.35; CRC 5.725(d)(6).]

Tip

ICWA Caution ICWA

If you appoint a guardian for the child, all educational rights transfer to the newly appointed guardian, unless you determine that the guardian is not able to act in the child’s best interests regarding education. [CRC 5.650(e).]

If you terminate a guardianship, your court resumes dependency jurisdiction, and you should order the department to develop a new permanent plan. [WIC §366.3(b)] The department does not need to provide reunification services, and you are not required to find that adequate services were provided before you terminate a guardianship. [In re Carlos E. (2005) 129 CA4th 1408, 1418–1419.]

Jurisdiction to terminate a legal guardianship is either in the juvenile court that retains jurisdiction over the guardianship or the county where the guardian and child currently reside, based on the best interests of the child. [WIC §366.3(b).] The probate court must be noticed if a dependency petition is filed with a request to set aside a probate guardianship. [See Prob C §1511.]

If a guardianship is established with an approved relative caregiver but dependency is subsequently dismissed, the minor is still eligible for aid under the Kin-GAP program. WIC §361.5(h).]


   
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© 2006 by Judicial Council of California
updated as of January 1, 2012