Section 465 IAC 4-2-21 - Eligibility of guardianAuthority: IC 31-25-2-18
Affected: IC 11-8-8; IC 29-3; IC 31-9-2; IC 31-25-2-7; IC 31-25-2-8; IC 31-27-4; IC 31-33-8-12; IC 31-34-21; IC 31-37 19-1; IC 31-37-20-2
Sec. 21.
(a) Except as provided in subsection (b), a guardian who meets all the following criteria shall be eligible to receive assistance on behalf of a child who is eligible for assistance under section 20 of this rule: (1) The guardian must be a relative of the child, as defined in IC 31-9-2-107(c), who is not the child's parent.(2) The guardian must reside in a home that is licensed as a foster family home under IC 31-27-4, or a comparable law of the state in which the home is located.(3) For purposes of eligibility as a relative under IC 31-9-2-107(c)(12), the guardian must be an individual who: (A) was a de facto custodian for the child (as defined in IC 31-9-2-35.5) for a period of time before the child became a ward of the department; or(B) has been approved as a relative of the child, for purposes of receiving guardianship assistance as provided in this rule, by: (i) the department, in a report submitted to the court for purposes of a permanency hearing under IC 31-34-21-7 or IC 31-37-19-1, or a periodic review hearing under IC 31-34-21-2 or IC 31-37-20-2, that is held subsequent to approval of a permanency plan for legal guardianship of the child; and(ii) the court, in an order entered following the permanency hearing or periodic review hearing at which the report was submitted and considered.(4) The guardian, upon establishment of a legal guardianship under IC 29-3, or comparable law of the state where the guardian resides, must be legally responsible for providing care, support, maintenance, education, and supervision, including financial support as provided in IC 29-3-8-9(f), as necessary or appropriate to meet the needs and promote the welfare of the child.(5) The guardian must meet each of the following criteria, as shown by a home study or evaluation of the guardian and child prepared or approved by the department: (A) Have the current and projected continuing ability, through resources available to the guardian as supplemented by any assistance provided under this rule, to provide for the child's physical, mental, emotional, educational, and psychological needs, upon termination of supervision of the child by the department.(B) Have the continuing ability, willingness, and motivation to access and obtain appropriate services outside the home that: (i) are necessary or appropriate for the health, education, development, and well-being of the child; and(ii) will assist the child in becoming a self-supporting adult to the maximum extent feasible.(C) Have established a nurturing, stable relationship with the child in which the child indicates a desire to continue a family relationship and residence with the guardian in the guardian's household.(D) Have demonstrated the ability to determine and regulate an appropriate level of relationship and ongoing contacts with any parent or other relative of the child, consistent with the safety and best interests of the child, and in conformity with any plan of visitation ordered or approved by the court in: (i) the child in need of services or delinquency proceeding; or(ii) any other court proceeding relating to continuing custody of, or visitation with, the child.(6) Each guardian, and every member of the guardian's household who is at least fourteen (14) years of age, must successfully complete a criminal history check (as defined in IC 31-9-2-22.5), and a check of any and all applicable sex or violent offender registries (as described in IC 11-8-8), in the time and manner as specified by the department.(7) Guardianship assistance is not available if the criminal history check reveals that a guardian or household member: (A) has ever been convicted of a felony as enumerated in 42 U.S.C. 671(a)(20)(A) involving: (i) child abuse or neglect;(ii) spousal abuse (domestic battery);(iii) a crime against a child (including child pornography); or(iv) a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery;(B) has been convicted, within five (5) years before the date the check is conducted, of a felony based on:(i) physical assault or battery against an adult; or(ii) a drug related or alcohol related offense;(C) has been convicted of a felony that would prohibit the court from granting a petition for guardianship by the guardian or household member, as described in IC 29-3-7-7;(D) is a sex or violent offender, or a sexually violent predator, for whom the court is prohibited from granting a petition for guardianship pursuant to IC 29-3-7-7;(E) has ever been convicted of a misdemeanor relating to the health or safety of a child; or(F) has a record of any of the following, unless the department approves a waiver request as provided in subdivision (8): (i) Any felony conviction.(ii) Four (4) or more misdemeanor convictions.(iii) A juvenile adjudication for an act that, if committed by an adult, would be a felony described in IC 29-3-7-7.(iv) A substantiated determination of child abuse or neglect under IC 31-33-8-12, or comparable law in any other state.(8) A guardian may request a waiver of any record based on the results of a criminal history check conducted under IC 31-9-2 22.5, applicable to the guardian or any household member, that is described in subdivision (7)(F). A waiver may be requested, considered, and granted or denied, under the procedure and criteria specified in the applicable department policy relating to evaluating background checks for guardianships. If a waiver request is granted, the department will not deny guardianship assistance eligibility based solely on the existence of a record described in subdivision (7)(F).(9) The eligible child must consent in writing to establishment of a legal guardianship for the child and placement with the selected guardian, if the child is: (A) at least sixteen (16) years of age; and(B) competent, as determined by the department, to provide informed consent to the placement and terms of the guardianship assistance agreement.(10) The eligible child who is at least thirteen (13) years of age must be consulted concerning the proposed guardianship and the selected guardian.(b) A successor guardian to whom section 31(c) of this rule applies is not required to meet the criteria specified in subsection (a)(1), (a)(2), and (a)(3). Department of Child Services; 465 IAC 4-2-21; filed 12/14/2016, 12:05 p.m.: 20170111-IR-465160216FRAReadopted filed 4/8/2022, 2:22 p.m.: 20220504-IR-465220018RFA