PR 07710.019 Kansas
A. PR 16–036 Request for Legal Opinion - Are Legal Custodians, Defined by Kansas Law, Equivalent to a Legal Guardian for the Purpose of Appointing a Representative?
We are publishing the Kansas City, Regional Chief Counsel’s opinion, which provides guidance for recognizing certain Legal Custodians, as defined by Kansas Law. The opinion explains that 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 exists, such as during the early stages of the Kansas Department for Children and Families (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.
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.
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).
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.
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