IX. A. Permanency Guardianship

Effective 11/23/15

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IX. A. Permanency Guardianship

Effective 11/23/15

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I        SUBJECT

The purpose of this policy is to outline the purpose and process of Permanency Guardianship.


Permanency Guardianship provides a permanency option to children who might otherwise remain in foster care until the age of majority. Through the provision of a financial subsidy, this program provides relatives and other individuals the opportunity to become the permanency guardians of children in the custody of the State or of Tribal authorities in the State of Maine, so that improved permanency outcomes for children in out-of-home placement will be achieved.

The Department of Health and Human Services considers adoption or guardianship a highly desirable goal for children who cannot return to their own families. The Department’s responsibility is to effectuate for every child in its full custody, a plan for assuring long term care that is as nurturing and stable as possible. Priority is always given first to encouraging and helping parents to take care of and assume responsibility for their own children and second, to seeking a legally sound, permanent placement, such as legal guardianship for the child within his broader family unless their inability to do so is clearly documented.


If return of legal custody to the child’s own immediate family is not possible, adoption or permanent legal guardianship offers the child’s best chance for a stable future in a permanent legal relationship. Because uncertainty and instability are inherent in extended foster home or institutional living, the child’s welfare in most cases requires that he be returned to the legal custody of his family or placed for adoption or in legal guardianship with relatives as first option, whenever possible, and as quickly as the law and sound principles of social work allow.

To that end, immediately upon a child’s judicial commitment to the Department, steps will be taken to determine whether the child’s guardian/s is/are willing and able to make a good faith effort toward rehabilitation and reunification. If so, concentrated efforts will be made to enable them to provide nurture, protection and stability and to demonstrate their ability to resume custody. If at any time a sound factual basis exists for determining that the guardian/s will not or cannot protect the child from jeopardy to his/her health and welfare, then the plan of return to the immediate guardians will be discontinued and a timely decision will be made whether adoption or permanency guardianship, preferably with relatives is the best plan for the child.  If adoption is the Department’s goal, all steps shall be taken consistent with the law and sound principles of social work, to achieve the earliest possible Termination of Parental Rights. As placement in permanency guardianship does not require a Termination of Parental Rights, a sound plan will be developed to support legal requirements to facilitate the permanency guardianship process with clear documentation in non-relative cases of the compelling reasons not to file a Petition for the Termination of Parental Rights and pursue the goal of adoption. According to Federal guidelines, States and Tribes may not develop a standard list of compelling reasons for not filing for TPR that exempts groups of children. Such a practice is contrary to the requirement that determinations regarding compelling reasons be made on a case-by-case basis. By federal definition, exceptions to filing a TPR include the following: (1) at the option of the State, the child is being cared for by a relative, (2) the State agency has documented in the case plan a compelling reason for determining that a TPR would not be in the best interests of the child, and (3) the State has not provided the services that the State deemed necessary for the safe return of the child to the child's home

If a child is placed in an unlicensed home it is the expectation that the Caseworker and/or other designated DHHS-OCFS staff will work with the unlicensed family resource to encourage, support and assist the family in the resource family/foster care licensure approval process.  The licensing process is to be initiated the first day the child is placed in an unlicensed home.


We believe that children’s needs are best served in a family that is committed to the child. We support placements that promote family, sibling and community connections, and encourage healthy social development.

V         LEGAL BASE

22 M.R.S.A. § 4038 C – D


1. The term “relative” refers to an individual who is related to the child by blood, marriage or adoption or an individual who is part of the family support system such as a non-related godparent, present or former caretaker, close family friend, neighbor or other adult who has a close and caring relationship with the child.

2. "Child" refers to a child who is in the custody of the Department of Health and Human Services and is eligible for Permanency Guardianship for the purposes of Permanency Guardianship Assistance the term child and youth is used interchangeably to include an individual 18-21.


a. The Child

1) For the permanency guardianship:

a) The child must be in the legal custody of the Department and or Tribes.

b) Reunification for the child is no longer a viable permanency option and a Cease Reunification Order must be signed by the court.

c) Adoption must be fully explored as the preferred permanency option and determined not to meet the needs and best interest of the child.  

d) Permanency Guardianship must be considered to be in the best interest of the child by the court.

A child is IV-E eligible for a permanency guardianship assistance payment under this subsection if the State agency determines the following:

The child has been—

• Removed from his or her home pursuant to a voluntary placement agreement or as a result of  a judicial determination to the effect that continuation in the home would be contrary to the welfare of the child  

• Eligible for title IV-E foster care maintenance payments during at least a six consecutive month period during which the child resided in the home of the prospective relative guardian who was licensed as a foster family home.

• Being returned home or adopted are not appropriate permanency options for the child.  

• The child demonstrates a strong attachment to the prospective relative guardian and the guardian has a strong commitment to caring permanently for the child.  

• With respect to a child who has attained 14 years of age, the child has been consulted regarding the permanency guardianship arrangement.  


TREATMENT OF SIBLINGS.—With respect to a child described above as meeting the criteria for Title IV-E eligibility whose sibling or siblings are not so described:

• The child and any sibling of the child may be placed in the same kinship guardianship arrangement, in accordance with section 471(a) (31) of the Title IV-E Social Security Act, if the State agency and the relative agree on the appropriateness of the arrangement for the siblings; and permanency guardianship assistance payments may be paid on behalf of each sibling so placed.

b. The Permanency Guardian(s)

1) For purposes of permanency guardianship subsidy:

a) Applications may be submitted by any party interested in permanency guardianship of an eligible child.  

b) The family must have been studied and approved as meeting the Department's/Tribal standards for permanency guardianship either by the Department, Tribes or by a licensed child-placing agency.  

c) The circumstances of the permanency guardian must be considered in determining guardianship subsidy of the type, duration and amount requested.

d) For permanency guardianship subsidy that exceeds one year in duration, there must be an annual review.

A judge may order Permanency Guardianship; however, the Department must make the decision both on placement and subsidy.


Preliminary Screening:  Children who meet the eligibility criteria will be screened for referral.  The child’s caseworker and a child welfare supervisor will complete a decision making process that takes into consideration the child's current permanency goal, specific service needs, current and potential birth family connections, and the stability of the child’s current placement.  In addition, the caseworker and supervisor will take into account the current provider's characteristics, including his/her connections to the birth family and his/her stated or potential interest in a long term commitment to the child.

District Child Welfare Program Administrator Approval: The caseworker will prepare a memo for the District Child Welfare Program Administrator whenever Permanency Guardianship is under consideration. Permanency Guardianship, while a viable and positive permanency option for youth and children, should have careful consideration of all variables, especially the more limited legal protection it provides. Child Welfare Program Administrator approval is required for all Permanency Guardianship situations.

The PA memo copied into MACWIS under narrative log titled Memo regarding Guardianship must include:

• Child’s name, DOB, current placement, length of time in care

• Child’s specific needs – medical, mental health, educational

• Legal status

• Compelling reasons why adoption is not being considered

• Child’s wishes, regardless of age

• Name of prospective Permanency Guardian, relationship to child, length of time child has been with this caregiver, characteristics of provider that support this placement.  

• When the Permanency Guardianship resource was licensed as a resource for this child, for Title IV-E determination.

• Plans in place for other birth family contact

• Sibling contact – will/are they being placed together

• Plans for death or disability of Permanency Guardian

• Position of GAL

The Program Administrator may meet with the caseworker and supervisor for more information if needed to make a final approval.

Family Team Meetings:  Family Team Meetings will inform caregivers and youth of the permanency options available to them and will be an integral part of the decision making process in choosing the permanency option that serves the best interests of the child.  During Family Team Meetings, the caseworker will present permanency guardianship concurrently with the full range of permanency options.  (Refer to Family Team Meeting Policy)

Child Plan:

When Permanency Guardianship is considered, the steps to finalize that permanency outcome will be identified in the Child Plan as developed through the FTM, the FTM process will address the permanency plan for this child as Permanency Guardianship and the plan will be provided to the court.   The plan must include the following:

• Steps DHHS has taken to determine that it is not appropriate for the child to be returned home or adopted

• The reasons for any separation of siblings during placement

• The reasons why a permanent placement with a fit and willing relative through a permanency guardianship assistance arrangement is in the child’s best interest

• The ways in which the child meets the eligibility requirements for a permanency guardianship assistance payment (See section below).  

• The efforts the agency has made to discuss adoption as a more permanent alternative to legal guardianship

• The efforts to negotiate the permanency guardianship assistance arrangement.  

• Parents, foster parents, prospective permanency guardians and children as able are encouraged to sign the case plan.  


Home Study and Guardianship Approval:  The comprehensive home study process and background checks currently in place in the State for adoptions and foster care will be implemented for caregivers applying for permanency guardianship.  The State will use the same format and standards for conducting permanency guardianship home studies as it currently applies to adoption or foster care home studies.  Maine Tribes will approve caregivers for permanency guardianship, using their existing processes for approving and certifying adoptive homes.

Interstate Compact on the Placement of Children (ICPC): If the caregivers being considered reside out of state, they must be approved by the ICPC offices of both Maine and the receiving state. The Interstate Compact on the Placement of Children ICPC) ensures protection and services to children who are placed across state lines for foster care, adoption or guardianship. The Compact is a uniform law that has been enacted by all 50 states and establishes procedures and responsibilities between the states. When there is a consideration of a permanency guardian who resides in another state all regulations and procedures of ICPC apply and the state agency, DHHS, must make the formal request through the normal ICPC procedures for placement in the other state. In guardianship situations, pursuant to Article V of the Compact, the “sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, and disposition of the child which it would have had if the child had remained in the sending agency’s state, until the child is adopted, reaches majority, becomes self-supporting or is discharged with the concurrence of the appropriate authority in the receiving state”. This will be the critical element in permanency guardianship cases.

Permanency Guardianship Agreement:  The caseworker and the permanency guardian will complete a written agreement that outlines the rights and responsibilities of the permanency guardian, and the amount of the permanency guardianship subsidy, and any services for which the child is eligible, following the legal establishment of guardianship.  The subsidy amount will be negotiated with the family and is dependent on the needs of the child and the resources of the family. Under the guardianship agreement, children in permanency guardianship and receiving Title IV-E subsidy will be categorically eligible for Medicaid. The Permanency Guardianship Agreement is effective until the age of 18, but may be provided until the 21st birthday if the child has a severe mental or medical handicap which warrants continuation, or has need of post-secondary education benefits. A copy of the Permanency Guardianship Agreement will be provided to the permanency guardian/s

A judge may order Permanency Guardianship, however, the Department must make the decision both on placement and subsidy and the family must meet all relevant standards.

Subsidy Payment:  Enrolled families will receive a permanency guardianship subsidy payment on behalf of the child that shall not exceed the foster care maintenance payment which would have been paid on behalf of the child if the child had remained in a foster family home.  The permanency guardianship subsidy program will be administered in compliance with the Rules of the Permanency Guardianship and in the same manner as the State’s Adoption Assistance program and will include an annual review to confirm that there have been no changes in the family’s situation and that the child is still residing with the guardian.

Non-recurring expenses: Permanency Guardianship parent(s) may apply for reasonable and necessary non-recurring permanency guardianship expenses, including guardianship fees, court costs, attorney fees and other expenses which are directly related to legal guardianship of an eligible child. Expenses are negotiated and may be reimbursed up to a maximum of $800.00 total per child, or such lesser maximum as may be established by the Legislature. Such expenses may not already have been reimbursed from another source.

A separate application, certification and agreement for reimbursement of non-recurring permanency guardianship expenses must be submitted by the permanency guardianship parents and approved by the agency prior to the permanency guardianship of the child.


All children in permanency guardianship must be eligible for and receiving permanency guardianship subsidy payments in order to be categorically eligible for Medicaid (per Section 473(b)(3) of the Social Security Act) as clients/recipients, they have access to all MaineCare services statewide and have the right to participate in all service decisions, review their treatment, case, or service plan, refuse any service unless mandated by law or court order and be informed about the consequences of refusal or disengagement with services.


a. A written agreement between the family entering into permanency guardianship and the Department must precede the District Court Order of Permanency Guardianship.  

b. The Commissioner of the Department or his designee will sign the agreement on behalf of the Department.

c. The agreement shall include the following:

(1) The amount and type of payments;

(2) The duration of the agreement;

(3) The process for annual review;

(4) A statement that the family is responsible for immediately notifying in writing the Office of Child and Family Services, Adoption/Permanency Program Specialist of any changes in address, custody, living arrangements or changes in benefits for the child;

(5) A statement concerning interstate continuance of the agreement, specifying payments and services for which Maine will remain responsible if the permanency guardianship family moves out of state;

(6) A statement specifying how permanency guardianship family shall be notified of any changes in the rates of payments and how they may request changes;  

(7) A statement that the subsidy begins on the date that the District Court or Tribal court enters an order establishing the Permanency Guardianship.


If permanency guardianship appointment terminates the case will be transferred from Central Office (if it is currently assigned to Central Office Staff) back to the district that originally had the permanency guardianship case prior to the transfer to Central Office.  If the case is still within the district i.e. there are other children in the case, the worker who has the case open under their name will resume responsibility of the child whose permanency guardianship appointment terminated.

Any exceptions to the above policy must have the approval of the Program Administrator for each district involved.


A new report must be made for all new allegations of abuse to a child.  The report is to be linked to the open Permanency Guardianship case.  The assessment of the abuse will be completed by the district office in which the child resides.  If the allegations are substantiated and/or services are required the ongoing case management of the case will be the responsibility of the district where the child originally came from -   Any exceptions to which district has the case must have the approval of the Program Administrator for each district involved.

Resignation, death or incapacity of permanency guardian

Resignation of a permanency guardian does not terminate the guardianship until it has been approved by the court.  If a permanency guardian resigns, dies or becomes incapacitated, the District Court shall hold a judicial review and a permanency planning hearing at the earliest practicable time.


Any individual who is receiving permanency guardianship assistance is entitled to appeal any decision made by the Department concerning the assistance.  To appeal a decision, a written request for an Administrative Hearing must be made to the Commissioner or his designee within 10 days of the decision. The exception to this appeal process is when the Department undertakes a system wide, across the board increase or reduction in the payment systems, rates, or criteria.