QUESTIONS PRESENTED
The questions presented are whether SSA should accept an appointment of a representative
signed by the Kansas Department for Children And Families (DCF) (1) when DCF is the
court appointed custodian for a child whether or not the child has legal parent(s);
(2) when DCF is appointed permanent custodian for children not adopted at the end
of the Kansas Child in Need of Care (CINC) process; and (3) when there are legal custodians
of children not in the foster care system.
Summary
As explained below, in situations where a permanent custodian exists, we believe that
the Social Security Administration (SSA) may accept the appointment of a representative.
For situations where only temporary custody has been awarded, such as during the early
stages of DCF custody, we recommend that SSA review the court order granting custody.
For legal custodians of children not in the foster care system, we also recommend
that SSA review the court order granting legal custody.
Kansas Statutory background
The state law under consideration for the purposes of this legal opinion is the Kansas
Care of Children Code (Code). The purpose of the Code is to provide for the care,
custody, guidance control, discipline, and stability that will best serve the child’s
welfare and the interests of the state, preferably in the child’s home, when a child
has been found to be a CINC. See K.S.A. §38-2201 (2014). A CINC is defined as an individual under the age of 18 who
is without adequate parental care, control, or subsistence necessary for the child’s
physical, mental or emotional health; those who have been physically, mentally, emotionally,
or sexually abused; or those that were abandoned or do not have a known living parent.
There are also other bases for determining that a child is a CINC, including but not
limited to truancy, run away situations, involvement in certain criminal activity,
and illegal adoption procedures. See K.S.A. §38-2202 (d)(1-13) (2014).
When a child is removed from his or her home pursuant to the provisions of the Code,
a multi-step process begins, the goal of which is to establish appropriate permanency
for the child, as is in the child’s best interest, without undue delay. The typical
case begins with petition being filed alleging that the child is a CINC. See K.S.A. §38-2234 (2014). However, under appropriate circumstances, law enforcement
involvement may necessitate that the child is taken into protective custody prior
to the petition being filed. See K.S.A. § 38-2234 (2014). After the petition is filed, or protective custody invoked,
a hearing is held, a finding of whether the child is a CINC is made, and a temporary
custody order may then be issued. The time lapse between the petition being filed
and the CINC adjudication is generally no later than 60 days. See K.S.A. §38-2251(c) (2014). If the child is adjudicated as a CINC, the next stage
of the process is a dispositional hearing to award custody and address a permanency
plan. An order of disposition will be entered within 30 days following adjudication,
absent good cause for a delay. See K.S.A. §38-2253(b) (2014).
A CINC may be remanded to the custody of the secretary for the Kansas DCF, another
individual, or another agency. See K.S.A. §§38-2242 and 38-2243 (2014). The current language defines “custody” as the
“status created by court order or statute which vests in a custodian, whether an individual
or an agency, the right to physical possession of the child and the right to determine
placement of the child, subject to restrictions placed by the court.” K.S.A. §38-2202(h)
(2014). A permanency plan includes, but is not limited to, a list of services to be
provided to the child and a description of the tasks and responsibility designed to
achieve the plan goals as well as who is responsible for them. See K.S.A. §38-2263 (2014). If the parties, including the parents, cannot agree to a
permanency plan, a hearing will be held within 12 months of the date the court authorized
the child’s removal from the home. See K.S.a. §38-2264 (2014).
If the court finds that reintegration into the family unit is not a viable alternative
and a permanency hearing is not necessary, proceedings are initiated to terminate
parental rights and permit placement of the child for adoption, or to appoint a permanent
custodian (a judicially approved “permanent guardian”); absent documented compelling
reasons showing that adoption or the appointment of a permanent custodian is not in
the child’s best interest. See K.S.A. §§38-2202(x) and 38-2255 (2014). Upon receiving a petition or motion to terminate
parental rights or to appoint a permanent custodian, the court will conduct a hearing
within 90 days. See K.S.A. §38-2267 (2014). Prior to that hearing, a parent may voluntarily relinquish
his or her parental rights and consent to adoption or the appointment of a permanent
custodian. See K.S.A. §38-2268 (2014). Absent a voluntary relinquishment of parental rights, the
court may find, by clear and convincing evidence, that the parent is unfit and terminate
the parental rights if the physical, mental or emotional needs of the child would
best be served by doing so. See K.S.A. §38-2269 (2014).
Analysis
Program Operations Manual System (POMS) section GN 3910.040 provides that a parent,
legal guardian, or guardian ad litem may appoint a representative, or revoke an appointment,
for a claimant under the age of 18 years old. The Social Security Act (Act) provides
that “parents” means biological or adoptive parents or legal guardians, as determined
by applicable state law. See 42 U.S.C. § 675(2). The term “legal guardian” means a judicially created relationship
between child and caretaker, which is intended to be permanent and self-sustaining
as evidenced by the transfer to the caretaker of the following parental rights with
respect to the child: protection, education, care and control of the person, custody
of the person, and decision making. See 42 U.S.C. § 675(7).
While previous versions of the Kansas Code used the term “permanent guardian,” the
language was changed in 2004 to reflect “permanent custodian,” reportedly to avoid
confusion associated with a termination of parental rights and other forms of guardianship.
Nevertheless, the Code clearly provides that a permanent custodian stands in the place
of a parent, although they cannot consent to the child’s adoption and they are not
responsible for paying child support or medical expenses. K.S.A. §38-2268(c) states
that a permanent custodian shall stand “in loco parentis” (in the place of a parent)
to the child and shall have and possess over the child all the rights of a legal guardian.
K.S.A. §38-2272(c) also provides that permanent custodians stand “in loco parentis”
and shall exercise all of the rights and responsibilities of a parent, except the
permanent custodian cannot consent to the adoption of the child or be subject to court
ordered child support or medical support. Moreover, the Code defines “permanent custodian”
as a judicially approved “permanent guardian.” See K.S.A. §38-2202(x) (2014). Therefore, we believe that a permanent custodian may appoint
a representative under POMS.
When a child is adjudicated a CINC, but a dispositional hearing has not yet been held
resulting in the child being placed for adoption or the appointment of a permanent
custodian, the type of custody may be temporary or protective. Protective custody
generally lasts only 72 hours, not considering weekends or holidays, and is not likely
going to be an issue for SSA’s purposes. See K.S.A. §38-2242 (2014). Protective custody does not invoke rights and responsibilities
consistent with those of permanent custodian, legal guardian, or parent. Temporary
custody lasts until a dispositional hearing is held and an order is entered, which
is generally within 30 days of adjudication. See K.S.A. §§38-2253(b) and 38-2255(d); see also In the Interest of N.A.C., 299 Kan. 1100, 329 P.3d 458 (2014). Nevertheless, delays may sometimes result in
temporary custody lasting for longer periods of time, which may be relevant for SSA’s
purposes.
If the CINC is placed in DCF’s temporary custody, the court will provide DCF with
a written copy of the order. See K.S.A. §38-2243(i)(2) (2014). Assuming that the parents have not voluntarily relinquished
their parental rights, the role DCF plays may be restricted in the order granting
temporary custody. Keeping in mind how the term “custody” is defined in the Code,
DCF has the right to physical possession of the child as well as the right to determine placement of the child. See K.S.A. §38- 2202(h) (2014). On its face, the definition of custody does not seem
to invoke any right for the temporary custodian to make legal decisions or appoint
a representative. The breadth of court oversight during DCF’s temporary custody further
indicates that the temporary custodian’s right to makes decisions on behalf of the
child is limited. The court will appoint a guardian ad litem for the child, who will
appear on behalf of and represent the child’s best interest. See K.S.A. §38-2205 (2014). Under the terms of the POMS section referenced above, the
guardian ad litem may have the authority to appoint a representative, depending upon
the limitations of his or her representation. The court may also appoint a “special
advocate,” who has a duty to advocate the best interests of the child and assist the
child in obtaining a permanent, safe and homelike placement. See K.S.A. §38-2206 (2014). Other factors also indicate that a temporary custodian enjoys
limited decision making rights for a CINC, absent court approval. For example, the
court must approve certain decisions such as consenting to hospital, medical, surgical,
or dental treatment. See K.S.A. §38-2217(a)(2) (2014) The child or the child’s parents may oppose certain
medical procedures and may request a hearing before the court. The court may then
limit the performance of those procedures. Id. Furthermore, if DCF was awarded temporary custody, the secretary must prepare a
permanency plan, and the court may reject that plan. See K.S.A. §38-2263 (2014). Similarly, the custodian may make educational decisions for
the child, if the parents are unknown or unavailable. See K.S.A. §38-2218 (2014).
There is, however, also indicia that temporary custody invokes quasi-parental rights
similar to that of a guardian. For instance, the Code states that the person or institution
with custody of the child, by court order, may consent to disclosure of otherwise
protected health information and may give consent for such treatment as diagnostic
examinations, dental treatment, immunizations, administration of lawfully prescribed
drugs, the withdrawal of blood to determine parentage, and under the appropriate circumstances,
give consent to medical or surgical care as determined by a physician to be necessary for the child’s welfare if the parents are not available or refuse to consent. See K.S.A. §38-2217(a)(3) (2014). These quasi-parental roles further indicate that the
court order awarding temporary custody should be reviewed on a case-by-case basis
where applicable.
CONCLUSION
In sum, pursuant to Kansas law, when the parental rights have been severed, a duly
appointed permanent custodian stands in the place of a parent and legal guardian and
may appoint a representative for the child. In any situation, where only temporary
custody is granted, or in all other situations where the child does not have a legal
guardian or permanent custodian, but rather has a “legal custodian”, or it is unclear
who stands “in loco parentis,” we recommend that SSA review the court order, because
whether these individuals can appoint a representative depends on the individual facts.
Kristi A. Schmidt
Regional Chief Counsel, Region VII
By Pamela J. McKimens