INTRODUCTION
You requested an opinion on whether appointing the Indiana Department of Child Services
a “wardship” pursuant to the Indiana Children in Need of Services (CHINS) statute
or giving the Indiana Department of Child Services “responsibility for placement and
care” is equivalent to appointing “guardianship” for purposes of representative payee
appointments involving foster care agencies. We conclude that “wardship” and “responsibility
for placement and care” are not equivalent to “guardianship” for purposes of determining
preferences for appointing a representative payee.
BACKGROUND
The Indiana Department of Child Services (DCS) often applies to serve as representative
payee for foster care children in its custody who receive social security benefits.
When a foster care agency applies to be appointed as representative payee for a foster
care child in its custody and asserts that the foster care agency has been appointed
legal guardian of the child, the POMS instructs the SSA employee to obtain a copy
of the court order/appointment. See POMS GN 00502.159(C)(4). SSA receives hundreds of court orders from Indiana juvenile courts awarding
“wardship” over children to the Indiana DCS. More recently, SSA has received court
orders that state “the court orders responsibility for placement and care” to the
Indiana DCS. According to the Indiana DCS Central Eligibility Unit, the latter language
is preferred under Title IV-E guidelines, Titles IV-B and IV-E of the Social Security
Act are the primary sources of Federal funds for State child welfare services, foster
care, and adoption assistance. 65 Fed. Reg. 4020-01.
which has prompted the shift away from the terms “ward” and “wardship,” but the meaning
of the orders remains the same. Apparently, the Indiana DCS Central Eligibility Unit
takes the position that these orders appoint DCS “guardianship” over the children.
We received four sample Indiana juvenile court orders from CHINS proceedings. We received
two Orders on Initial/Detention Hearings, in which Indiana juvenile courts do not
use the term “wardship,” but state: “The Court finds responsibility for the placement
and care of the child is ordered or continues to be ordered to the DCS.” In the third
CHINS Order on Initial/Detention Hearing, the juvenile court uses both terms. The
juvenile court grants “wardship” pursuant to Indiana Code § 31-9-2-134.5 to DCS and
also finds that “[t]he responsibility for placement and care is granted to the Department
of Child Services.” We also received a fourth CHINS juvenile court order that is a
“Dispositional Order,” which also includes both phrases. The fourth order states both
that “DCS is given responsibility for placement and care of the child” and also states
that “DCS is awarded wardship of the child, with responsibility for supervision, care
and placement” and refers to Indiana Code § 31-9-2-134.5.
DISCUSSION
General Information Regarding Appointment of Representative Payee
SSA appoints a representative payee to receive a child’s benefits if the child beneficiary
is unable to manage or direct the management of benefits payments in his or her interest. See 20 C.F.R. §§ 404.2001, 416.601. In section 205(j) of the Social Security Act, Congress
granted SSA the power to determine who should manage a beneficiary’s benefits and
how they should be managed. 42 U.S.C. § 405(j). The regulations provide a suggested
order of preference to consider in selecting representative payee. 20 C.F.R. §§ 404.2021,
416.621; see also POMS GN 00502.105. The payee preference list for minor children is:
1. A natural or adoptive parent with custody;
2. A legal guardian;
3. A natural or adoptive parent without custody, but who shows strong concern;
4. A relative or stepparent with custody;
5. A close friend with custody and provides for the child’s needs;
6. A relative or close friend without custody, but who shows strong concern;
7. An authorized social agency or custodial institution; or
8. Anyone not listed above who shows strong concern for the child, is qualified, and
able to act as payee, and who is willing to do so.
POMS GN 00502.105(B).
POMS GN 00502.159 discusses “Additional Considerations When Foster Care Agency Is Involved.” The POMS
notes that while foster care agencies have traditionally been among SSA’s most dependable
payees, their appointment as representative payee is not automatic. POMS GN 00502.159(A). The POMS advises that “[a]n agency that has been appointed legal guardian for
the child by the court has a much higher standing on the payee preference list than
an agency that has not been appointed legal guardian because the relationship between
a court appointed legal guardian and child is stronger than merely a custodial relationship.” POMS GN
00502.159(B)(1). If the agency has not been appointed legal guardian, the payee preference
list at POMS GN 00502.105 must be used as an aid to identify and develop potential payees who would better
serve the interests of the child. POMS GN 00502.159(B)(1). The POMS further states: “While a child might be placed in foster care under
a court order, the order does not necessarily make the agency the legal guardian of
a child in foster care. The court has to specifically name the agency as the legal
guardian. You must carefully review the court documents to determine the legal relationship
between the child and the foster care agency.” POMS GN
00502.159(B)(3).
Indiana Children In Need of Services (CHINS) Proceedings
The Indiana Juvenile Code is frequently revised, but the current version of the Indiana
Juvenile Code provides that a child is a child in need of services if before the child
becomes eighteen years of age:
(1) the child’s physical or mental condition is seriously impaired or seriously endangered
as a result of the inability, refusal, or neglect of the child’s parent, guardian,
or custodian to supply the child with necessary food, clothing, shelter, medical care,
education, or supervision; and
(2) the child needs care, treatment, or rehabilitation that: (A) the child is not
receiving; and (B) is unlikely to be provided or accepted without the coercive intervention
of the court.
Ind. Code Ann. § 31-34-1-1 (West 2010); see also Ind. Code Ann. §§ 31-34-1-2 to -11 (West 2010) (for additional definitions of a child
in need of services).
An attorney for the Department of Child Services may file a request with the juvenile
court to authorize the filing of a CHINS petition, Ind. Code Ann. § 31-34-9-1(1) (West
2010), which the juvenile court shall authorize if the court finds probable cause
to believe the child is a CHINS, Ind. Code Ann. § 31-34-9-2(2) (West 2010). If a petition
is authorized, the person filing may request that the child be taken into custody. Ind.
Code Ann. § 31-34-9-5 (West 2010). Indiana Code § 31-34-5-3, governing release and
findings required for detention order, provides that:
(a) The juvenile court shall release the child to the child’s parent, guardian, or
custodian. However, the court may order the child detained if the court makes written
findings of fact upon the record of probable cause to believe that the child is a
child in need of services and that:
(1) detention is necessary to protect the child;
(2) the child is unlikely to appear before the juvenile court for subsequent proceedings;
(3) the child has a reasonable basis for requesting that the child not be released;
(4) the parent, guardian, or custodian: (A) cannot be located; or (B) is unable or
unwilling to take custody of the child; or
(5) consideration for the safety of the child precludes the use of family services
to prevent removal of the child.
(b) The juvenile court shall include in any order approving or requiring detention
of a child all findings and conclusions required under:
(1) applicable provisions of Title IV-E of the federal Social Security Act (42 U.S.C.
670 et seq.); or
(2) any applicable federal regulation, including 45 CFR 1356.21;
as a condition of eligibility of a child in need of services for assistance under
Title IV-E or any other federal law.
(c) Inclusion in a juvenile court order of language approved and recommended by the
judicial conference of Indiana, in relation to:
(1) removal from the child’s home; or
(2) detention;
of a child who is alleged to be, or adjudicated as, a child in need of services constitutes
compliance with subsection (b).
Ind. Code Ann. § 31-34-5-3 (West 2010).
If a child is found to be a child in need of services, the juvenile court may enter
an appropriate order, including an order:
* for supervision of the child by the department;
* to remove the child from the child’s home and authorize the department to place
the child in another home or shelter care facility (placement under this subdivision
includes authorization to control and discipline the child); or
* to award wardship of the child to the department for supervision, care, and placement.
Ind. Code Ann. § 31-34-20-1(a)(1), (3), (4) (West 2010).
A permanency hearing must be conducted within thirty days after a Court finds that
reasonable efforts to reunify or preserve the child’s family are not required under
Indiana law, or every twelve months after the date of the original dispositional decree
or from the date the child was removed, whichever occurs first. Ind. Code Ann. § 31-34-21-7(a)
(West 2010). At the permanency hearing, the Court must consider whether jurisdiction
over the child should be continued, and whether the dispositional decree should be
modified. Ind. Code Ann. § 31-34-21-7(b)(2) (West 2010). Jurisdiction of the child
is not to continue longer than twelve months after the date of the dispositional decree
or after the child was removed, whichever occurs first, unless the Department of Child
Services proves that the objectives of the decree have not been accomplished, continuation
is necessary, and that it is in the child’s best interest to maintain jurisdiction.
Ind. Code Ann. § 31-34-21-7(d) (West 2010). If the Department of Child Services does
not meet its burden for continuing jurisdiction, it shall establish a permanency plan
within thirty days or return the child home and terminate the proceedings. Ind. Code
Ann. § 31-34-21-7(d) (West 2010). A “permanency plan” may include:
(E) Appointment of a legal guardian. The legal guardian appointed under this section
is a caretaker in a judicially created relationship between the child and caretaker
that 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: (i) Care,
custody, and control of the child. (ii) Decision making concerning the child’s upbringing.
Ind. Code Ann. § 31-34-21-7.5(c)(1)(E) (West 2010). The CHINS statute further provides:
“If the juvenile court approves a permanency plan under section 7 of this chapter
that provides for the appointment of a guardian for a child, the juvenile court may
appoint a guardian of the person and administer a guardianship for the child under
IC 29-3. If a guardianship of the person proceeding for the child is pending in a
probate court, the probate court shall transfer the proceeding to the juvenile court.”
Ind. Code Ann. § 31-34-21-7.7 (West 2010).
Analysis
A “legal guardian/conservator” is defined in the POMS as “a third party appointed
by a court of law to assume control and responsibility for an individual or his/ her
estate.” POMS GN
00501.010(B)(10); see also POMS GN 00502.139 (“A legal guardian or conservator is a third party appointed by a State court to
manage the affairs of an individual who is not able to do so.”). The POMS distinguishes
between a legal guardian or conservator on one hand and a person or entity with mere
“custody” on the other. The POMS defines the term “custody” as referring to “the control
and care of the claimant.” POMS GN 00501.010(B)(9). “Physical custody means that the claimant actually lives with the person or
in the institution, nursing home, etc.” POMS GN
00501.010(B)(9). “Legal custody exists when a court places an individual in the custody of
an individual, institution, social agency, etc.” POMS GN 00501.010(B)(9). Additionally, the POMS concerning additional considerations when a foster
care agency is involved states: “When a child is removed from parental custody and
the court places the child in the custody of a foster care agency, the agency has
legal custody of the child. If the foster care agency places the child into a foster
care or group living household, the foster care agency retains legal custody of the
child, even though the agency does not have actual physical custody of the child.” POMS GN 00502.159(B)(2).
Indiana law seems to make a clear distinction between wardship and guardianship. It
appears that when DCS is awarded wardship, it has legal custody of the child. However,
this is distinct from being appointed as legal guardian. The Indiana code defines
“wardship” as “the responsibility for temporary care and custody of a child by transferring
the rights and obligations from the child’s parent, guardian, or custodian to the
person granted wardship.” Ind. Code Ann. § 31-9-2-134.5(a) (West 2010). The Indiana
Code’s definition of wardship further states that “[e]xcept to the extent a right
or an obligation is specifically addressed in the court order establishing wardship,
the rights and obligations of the person granted wardship include making decisions
concerning the: (1) physical custody of the child; (2) care and supervision of the
child; (3) child’s visitation with parents, relatives, or other individuals; and (4)
medical care and treatment of the child.” Ind. Code Ann. § 31-9-2-134.5(a) (West 2010). “Guardian”
means “a person appointed by a court to have the care and custody of a child or the
child’s estate, or both.” Ind. Code Ann. § 31-9-2-49 (West 2010).
We do not believe that an Indiana juvenile court order that appoints wardship of a
minor to DCS establishes a legal guardianship. The most on-point Indiana case is Matter of S.T., 621 N.E.2d 371 (Ind. Ct. App. 1993), in which the Indiana Court of Appeals held that
a juvenile court order that made children “wards of the Clark County Department of
Public Welfare” did not appoint the Department the children’s guardian. Id. at 374-75. In Matter of S.T., the Indiana Court of Appeals considered the argument that the Clark County Department
of Public Welfare, as guardian of the foster children at issue, had breached its fiduciary
duty to the children pursuant to the Indiana probate code, Ind. Code § 29-3-8-3, by
failing to collect child support from the children’s parents. Id. at 374. The Indiana Court of Appeals rejected the argument that the Department had
a fiduciary duty to the children as their guardian because making the children “wards”
of the Department did not make the Department their guardian. Id. at 374-75. Instead, the Indiana Court of Appeals held that the juvenile court’s
order making children “wards” of the Department only indicated that the Department’s
relationship with the children was one which was continuing in nature. Id. at 375.
Matter of S.T. is only an appellate opinion, not an Indiana Supreme Court opinion. However, the holding
in Matter of S.T. is consistent with other statutory definitions, which suggest that wardship contemplates
a temporary relationship whereas legal guardianship contemplates a more permanent
relationship. Compare Ind. Code Ann. § 31-9-2-134.5(a) (West 2010), with 42 U.S.C.
§ 675(7). Title IV-E of the Social Security Act defines “legal guardianship” as
follows:
The term “legal guardianship” 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….
42 U.S.C. § 675(7); see also 45 C.F.R. § 1355.20(a). The definition of guardianship in Title IV-E is relevant
because the Indiana CHINS statute contemplates eligibility requirements for receipt
of federal funding for foster care pursuant to Title IV-E of the Social Security Act. See Ind. Code Ann. § 31-34-5-3(b) (West 2010) (“The juvenile court shall include in any
order approving or requiring detention of a child all findings and conclusions required
under: (1) applicable provisions of Title IV-E of the federal Social Security Act
(42 U.S.C. § 670 et seq.); or (2) any applicable federal regulation, including 45 C.F.R.
§ 1356.21; as a condition of eligibility of a child in need of services for assistance
under Title IV-E or any other federal law.”); see also Ind. Code Ann. § 31-34-20-1(c) (West 2010). Similarly, other sections of the Indiana
CHINS statute support this distinction between wardship and legal guardianship. Specifically,
“[a]ppointment of a legal guardian” is listed as one of the options in a permanency
plan under the CHINS statute, and the definition included there indicates a permanent
and self-sustaining relationship. Ind. Code Ann. § 31-34-21-7.5(c)(1)(E) (West 2010)
(“The legal guardian appointed under this section is a caretaker in a judicially created
relationship between the child and caretaker that 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: (i) Care, custody, and control of the child. (ii)
Decision making concerning the child’s upbringing.”).
For similar reasons, we do not believe that an Indiana juvenile court order giving DCS
“responsibility for placement and care” of a foster child establishes a legal guardianship. There
is no indication that Indiana juvenile courts intend to create a permanent and self-sustaining
relationships between DCS and the foster child in these orders. Rather, “responsibility
for placement and care” of the foster child is a requirement for Title IV-E funding,
Under Title IV-E, to be eligible for federal financial participation, section 472(a)(2)(B)
of the Social Security Act requires that the responsibility for placement and care
of the child is with the State agency administering the plan approved under section
471 of the Act, or any other public agency with whom the State agency administering
or supervising the administration of the State plan approved under section 471 has
made an agreement which is in effect. 42 U.S.C. § 672(a)(2)(B); see also U.S. Dep’t of Health & Human Servs., Administration for Children & Families, Child
Welfare Policy Manual 8.3A.12, Title IV-E, Foster Care Maintenance Payments Program,
Eligibility, Responsibility for placement and care, Answer to Question 1, available at www.acf.hhs.gov/cwpm/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=31. and
the Indiana CHINS statute requires juvenile courts to include all findings and conclusions
required for Title IV-E funding. See Ind. Code Ann. § 31-34-5-3(b) (West 2010); see also Ind. Code Ann. § 31-34-20-1(c) (West 2010).
The holding in Matter of S.T. is also consistent with the jurisdictional provisions of the Indiana Code which states
that, except as otherwise indicated, Indiana probate courts generally have exclusive
original jurisdiction over guardianship matters. See Ind. Code Ann. § 29-3-2-1(b) (West 2010) (“Except as provided in subsections (c) through
(e), the [probate] court has exclusive original jurisdiction over all matters concerning
the following: (1) Guardians.”). Subsection (c) provides that a “juvenile court has
exclusive original jurisdiction over matters relating to the following: (1) Minors
described in IC 31-30-1-1. (2) Matters related to guardians of the person and guardianships
of the person described in IC 31-30-1-1(10).” Ind. Code Ann. § 29-3-2-1(c) (West
2010). Indiana Code § 31-30-1-1(10) provides that a juvenile court has exclusive original
jurisdiction in guardianship of the person proceedings for a child who has been adjudicated
as a CHINS; for whom a juvenile court has approved a permanency plan under IC 31-34-21-7
that provides for the appointment of a guardian of the person; and who is the subject
of a pending CHINS proceeding under Indiana Code § 31-34. Ind. Code Ann. § 31-30-1-1(10)
(West 2010). Language in the CHINS statute suggests that appointment of a guardian
is generally a matter for the probate courts and that the only time that a juvenile
court in a CHINS proceeding will have jurisdiction over the appointment of a guardian
is when the appointment of a guardian is pursuant to a permanency plan under Indiana
Code § 31-34-21-7. The CHINS statute provides: “If the juvenile court approves a permanency
plan . . . that provides for the appointment of a guardian for a child, the juvenile
court may appoint a guardian of the person and administer a guardianship for the child
under IC 29-3 [probate code]. If a guardianship of the person proceeding for the
child is pending in a probate court, the probate court shall transfer the proceeding
to the juvenile court.” Ind. Code Ann. § 31-34-21-7.7 (West 2010). Under the probate
code, “guardian” is defined as “a person who is a fiduciary and is appointed by a
court to be a guardian or conservator responsible as the court may direct for the
person or the property of an incapacitated person or a minor.” Ind. Code Ann. § 29-3-1-6
(West 2010); see also Ind. Code Ann. §§ 29-3-8-1 to -4 (West 2010) for enumerated
and mandatory responsibilities of a guardian and powers a guardian may exercise.
Some Indiana Court of Appeals decisions suggest that DCS’s responsibility for placement
and care of a minor under a wardship equates to legal guardianship. In Matter of Infant Girl, 845 N.E.2d 229 (Ind. Ct. App. 2006), the Indiana Court of Appeals granted interlocutory
review of a couple’s petition for review and consolidation of a CHINS case and adoption
case, with the primary question involving whether the Indiana Adoption Act permitted
an unmarried couple to file a joint petition for adoption. One of the many issues
addressed in the opinion was whether the Indiana Office of Family and Children had
standing to appeal the adoption decree because it was not a party below. Id. at 238. The Indiana Court of Appeals found that OFC did have standing. Id. The opinion
noted that the Office of Family and Children’s consent to the adoption would have
been required in the normal course because it was responsible for the child’s care
and placement and because it had legal custody. Id. The opinion further reasoned that “OFC has been heavily involved in M.A.H.’s adoption
proceeding at every key juncture, as it should have been, given that it was M.A.H.’s
legal guardian.” Id. Thus, the opinion appears to assume without any analysis that responsibility for
placement and care and legal custody equate to legal guardianship. In Matter of Adoption of A.S., 912 N.E.2d 840, 845 n.3 (Ind. Ct. App. 2009), the Indiana Court of Appeals cited
Matter of Infant Girl, for this proposition to hold that the Marion County DCS had standing in the appeal. However,
we believe these opinions have minimal persuasive weight because they appear to assume
that responsibility for placement and care in addition to legal custody equate to
legal guardianship without any real analysis.
CONCLUSION
We conclude that “wardship” and “responsibility for placement and care” are not equivalent
to “guardianship” for purposes of determining preferences for appointing a representative
payee.
We hope that this memorandum answers your questions.
Donna L. C~
Regional Chief Counsel, Region V
By___________
Joo H. K~
Assistant Regional Counsel