A. Overview
A permanent guardianship is one option for providing permanency under ARS. §8-862. The legislature originally enacted the permanent guardianship statute in an attempt to provide some type of permanency to older children who were less likely to be adopted if their parent's rights were severed. The legislature also intended this statute to provide an alternative for permanency when termination of parental rights would not be in the child's best interest.⁽¹⁾ In proceedings for permanent guardianship, the court gives primary consideration to the physical, mental, and emotional needs of the child.⁽²⁾

A permanent guardianship in the Juvenile Court under ARS Title 8 is different from a "Title 14" guardianship in the Superior Court. A Title 14 guardianship is not permanent. Under Title 14 parent may consent to another person acting temporarily as the child's guardian. However, the consent is revocable at any time.

The Juvenile Court may establish a permanent guardianship for a child if the guardianship would be in the child's best interest and all of the following apply:

1. The child has been adjudicated a dependent child.
2. The child has been in the custody of the prospective guardian for at least nine months as a dependent child.
3. If the child is in the custody of the division or agency, the division or agency has made reasonable efforts to reunite the parent and child and further efforts would be unproductive.
4. The likelihood that the child would be adopted is remote or termination of parental rights would not be in the child's best interest.⁽³⁾

Any adult, including a relative or foster parent, is eligible to be a guardian. If the child is old enough, he or she can nominate a guardian, which the court will honor unless it finds the nomination is not in the child's best interest. ⁽⁵⁾ Any party to a dependency may file a motion for permanent guardianship.⁽⁶⁾

A court order awarding permanent guardianship to an individual also removes legal custody for the child from the birth or adoptive parents. While this order does not terminate parental rights, it does terminate the parent's authority over the child.

The guardian is generally given the right to the care, custody, control, and education of the minor. The guardian can consent to medical care and can sign school consent forms as well.⁽⁷⁾ While the guardian takes most of the parents rights, the guardian does not become liable to third parties for the acts of the child.

The child, the parent, or any party to the dependency may file a petition to revoke the guardianship. If the person filing for revocation can prove by clear and convincing evidence that there has been a significant change in the circumstances of the guardianship, the court will revoke the guardianship.⁽⁸⁾ Significant changes in circumstances include the following:

1. The child's parent is able and willing to care for the child.
2. The child's permanent guardian is unable to properly care for the child.⁽⁹⁾

Before a final hearing, the agency or a person designated by the court shall conduct an investigation of the alleged grounds for permanent guardianship, the suitability of the prospective guardians, and the best interests of the child. The investigation must be submitted in writing to the court.⁽¹¹⁾ The dependency is dismissed upon the entry of an order for permanent guardianship.⁽¹²⁾

B. Advantages and Disadvantages of Permanent Guardianship

1. Advantages
The most important advantage of permanent guardianship is that it can create a permanent placement for the child without having to terminate parental rights.  Permanent guardianship makes sense where:

1. The child wants to live with the guardian but does not want to be severed from his or her parents.
2. The parents need to save face and are willing to consent to a permanent plan one step short of giving up their child.
3. The parents and/or the child want to maintain an ongoing relationship but one in which care taking responsibility is left to the guardian. Guardianship may be an especially attractive situation where the parent lacks capacity --such as with mental illness or retardation - but does not lack in love for the child.
4. The child does not want to be adopted.
5. The child wants to stay with the guardian but, for some reason, the guardian is ineligible to adopt or be a foster parent.
6. The parent may be able to regain capacity to parent but it will take a period of years.

2. Disadvantages.
Permanent guardianships have one very distinct disadvantage: Unlike adoptions or long term foster care, guardianships have very limited access to financial subsidies. Some subsidies exist, but they are few in number and difficult to obtain. The permanent guardian must be a person willing to assume full financial responsibility for the child.

The child must be adjudicated a dependent child before guardianship can be ordered. In some situations, the person seeking guardianship has to petition for dependency as well. The extra proceeding can create complications - not the least of which is a new set of allegations. If a parent might be willing to consent to the guardianship where the grounds are amorphous but might not be willing in a dependency with more specific allegations.

3. A Difference That Could Go Either Way

Permanent guardianships can be revoked. Terminations cannot. That simple fact may be critically important in decisions whether to go one way or the other.

The parents have to be aware of the fact. But so do children. Permanent guardianship should not be the direction if it is based on false hope - maybe my parents will turn it around and come and get me. It should be based on the situation as it really is. Maybe the parents need more time but the possibility is there. Maybe a lesser but continuing relationship is a good thing. Be prepared to try to work out these tough questions with your client as best as you can.

A sample guardianship petition and final order are included in the Appendix.

 
1. ARS §8-871(A)(4)

2. ARS §8-871(C)

3. ARS §8-871(A)

4. Id.

5. ARS §8-871(B)

6. ARS §8-872

7. ARS §8-871(D) (giving the guardian the same rights and responsibilities as guardians under ARS §14-5209)

8. ARS §8-873

9. ARS §8-873(A)

10. ARS §8-872(E)

11. ARS §8-872(E)

12. ARS §8-872(I)

13. ARS §8-872(H)

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