TN 3 (01-11)

PR 07110.017 Indiana

A. PR 11-031 Indiana Foster Care Guardianship

DATE: December 13, 2010

1. SYLLABUS

For the Indiana Department of Child Services, “wardship” and “responsibility for placement and care” are not the equivalent of “guardianship” for purposes of selecting and appointing a representative payee.

2. OPINION

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


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1507110017
PR 07110.017 - Indiana - 01/05/2011
Batch run: 01/05/2011
Rev:01/05/2011