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Regular Session, 2011
SENATE BILL NO. 32
BY SENATOR BROOME (On Recommendation of the Louisiana State Law Institute)
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CHILDREN. Provides relative to guardianship of children in need of care.
AN ACT1
To amend and reenact Children's Code Articles 116(12.1), 675(B)(3), 681, 1511, 1515(B)2
and 1516(B), and to enact Children's Code Articles 718, 719, 720, 721, 722, 723, 7243
and 1514(D), relative to guardianship; to define guardianship; to provide for4
dispositional alternatives; to provide for the purpose of guardianship; to provide for5
the guardian's rights and responsibilities; to provide for a home study report; to6
provide for certain procedures; to provide for a motion, hearing, and order for7
guardianship; and to provide for related matters.8
Be it enacted by the Legislature of Louisiana:9
Section 1. Children's Code Articles 116(12.1), 675(B)(3), 681, 1511, 1515(B) and10
1516(B) are hereby amended and reenacted, and Children's Code Articles 718, 719, 720,11
721, 722, 723, 724 and 1514(D) are hereby enacted, to read as follows:12
Art. 116. Definitions13
Except where the context clearly indicates otherwise, these definitions apply14
for the following terms used throughout this Code.15
* * *16
(12.1)(a) Legal "Guardianship" means the judicial placement of a child17 SB NO. 32
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under the duty and authority of a guardian to make important decisions in matters1
having a permanent effect on the life and development of the child as set forth in2
Article 719 and the responsibility for the child's general welfare until he reaches the3
age of majority, subject to any residual rights possessed by the child's parents. It4
shall include but not necessarily be limited to:5
(i) The authority to consent to marriage, to enlistment in the armed forces of the6
United States, to represent the minor in legal actions, to make other decisions of7
substantial legal significance concerning the minor.8
(ii) The authority and duty of reasonable visitation, except to the extent that such9
right of visitation has been limited by court order.10
(III) The rights and responsibilities of legal custody.11
(b) The term "legal guardian" means to the caretaker in such a relationship.12
* * *13
Comment - 201114
In this revision "guardian" is defined more broadly. See Ch.C. Art. 719. If15
guardianship is granted, most parental rights and responsibilities are allocated to the16
guardian. The child has been declared abused or neglected and since that17
adjudication, continuing case review has confirmed that parental abandonment or18
dereliction persists, thus precluding the safe return of the child to the parent's custody19
or control. The modifier "legal" is omitted as redundant although "legal guardian"20
is the term used by federal statutes. See, for example, the "Fostering Connections21
to Success and Increasing Adoptions Act of 2008", Public Law 110-351, 42 U.S.C.22
671 et al.23
* * *24
Art. 675. Case plan purpose; content25
* * *26
B. The case plan shall include at least the following:27
* * *28
(3) Documentation of the efforts the agency is making to safely return the29 SB NO. 32
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child home or to finalize the child's placement in an alternative safe and permanent1
home in accordance with the child's permanent plan. For children whose permanent2
plan is adoption or placement in another permanent home, this documentation shall3
include child-specific recruitment efforts, such as the use of state, regional, and4
national adoption exchanges, including electronic exchange systems to facilitate5
orderly and timely instate and interstate placements. For children whose6
permanent plan is guardianship, the documentation shall include the facts and7
circumstances supporting guardianship, including the reasons that the plan is8
in the best interest of the child and that reunification with a parent and9
adoption are not appropriate permanent plans. The documentation shall also10
address the suitability and commitment of the proposed guardian to offer a11
wholesome, stable home for the child throughout the child's minority.12
* * *13
Comment - 201114
According to Ch.C. Art. 603(15), guardianship is a "permanent placement",15
ending at the age of majority. See Ch.C. Art. 723(D). The juvenile court is required16
to conduct a case review hearing at least every six months during the child's minority17
until a permanent placement of the child has been achieved. "Wholesome" and18
"stable" are used elsewhere in C.C. Art. 133 and Ch.C. Art. 702(C).19
* * *20
Art. 681. Dispositional alternatives21
A. In a case in which a child has been adjudicated to be in need of care, the22
child's health and safety shall be the paramount concern, and the court may:23
(1) Place the child in the custody of a parent or such other suitable person on24
such terms and conditions as deemed in the best interest of the child including but25
not limited to the issuance of a protective order pursuant to Article 618.26
(2) Place the child in the custody of a private or public institution or agency.27
(3) Commit a child found to be mentally ill to a public or private mental28
institution or institution for the mentally ill.29 SB NO. 32
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(4) Grant guardianship of the child to any individual a nonparent.1
(5) Make such other disposition or combination of the above dispositions as2
the court deems to be in the best interest of the child.3
B. A child in need of care shall not be committed to the Department of4
Public Safety and Corrections, nor shall such department accept a child in need of5
care.6
Comment - 20117
The substance and procedure for guardianships is governed by Chapter 19 of this8
Title.9
* * *10
Art. 718. Purpose of guardianship11
A. The purpose of guardianship is to provide a permanent placement for12
children when neither reunification with a parent nor adoption has been found13
to be in their best interest; to encourage stability and permanence in the lives14
of children who have been adjudicated to be in need of care and have been15
removed from the custody of their parent; and to increase the opportunities for16
the prompt permanent placement of children, especially with relatives, without17
ongoing supervision by the department.18
B. The Chapter is intended to ensure that the fundamental needs of19
children are met while ensuring that the constitutional rights of all parties are20
recognized and enforced.21
Comments - 201122
(a) Guardianship is a common law concept that is similar but not identical23
to the civilian concept of tutorship. In 2004, the legislature approved a proposal to24
add guardianship ("Legal guardianship" as it is known under federal law) as a25
defined term in the Children's Code (Ch.C. Art. 116 (12.1) and to authorize the26
juvenile court to appoint a guardian as a permanent plan for child. (Ch.C.27
Art.702(C)(3)). Under federal statutes, when a child is removed from his parents'28
care and control, the state is obligated to submit a "permanent plan" within twelve29 SB NO. 32
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months after the child enters foster care. The Adoption and Safe Families Act of1
1997, P.L. 105-90, 42 U.S.C. 601 et seq. The options are return the child to his2
parents; to terminate the parental rights and try to place the child for adoption; to3
place the child in guardianship; to place the child in the legal custody of a relative;4
or as a last resort alternative, to place the child in the least restrictive most family-5
like alternative permanent living arrangement (which can be long-term foster care.)6
Adoption and Safe Families Act of 1999, P.L. 105-89, 42 U.S.C. 601 et seq.; Ch.C.7
Art. 601(15). Guardianship often becomes the only viable alternative after the other8
two preferred options (reunification or adoption) prove to be beyond reach. Ch.C.9
Art. 702(C).10
(b) In 2008, Congress enacted "Fostering Connections to Success and11
Increasing Adoptions Act," P.L. 110-351, 42 U.S.C. 671 et al. It calls for the12
expansion of the practice of appointing relatives as "guardians" for children who are13
stranded in the foster care system. The statute provides incentives for states to14
encourage these guardianships and provides federal funds for Title IV-E Social15
Security Act subsidies to support relatives in assuming such responsibilities. The16
authorization of subsidies will increase the use of guardianship as a permanent plan17
for abused and neglected children.18
(c) The 2009 State Plan submitted by the Department of Children and Family19
Services commits the Department to this goal of increased guardianships and20
clarifying the law and policy necessary for effective implementation. The Plan was21
approved and funded by the federal government.22
(d) Clarification of guardianship is important because judges are concerned23
about exactly what the option entails, and caseworkers must be able to explain to24
potential guardians their rights and obligations toward the child.25
(e) The source of this article is the permanent guardianship statute of the26
District of Columbia, D.C. Code Ann. S 16-2381, although the text has been27
substantially revised.28
Art. 719. Guardian's rights and responsibilities29 SB NO. 32
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A. Unless the court specifies otherwise, a guardian shall exercise the1
rights and responsibilities of legal custody and shall have the authority to2
consent to the child's marriage, to consent to his enlistment in the armed forces3
of the United States, and to make other decisions concerning the child, except4
the right to consent to the child's adoption.5
B. Guardianship does not subject the guardian to responsibility under6
Civil Code Articles 2317 or 2318 for damage occasioned by the child.7
C. The rights and responsibilities of administering the property of the8
child are governed by the law of tutorship.9
Comments - 201110
(a) The common law concept of guardianship encompasses both a11
guardianship of the person and a guardianship of property. These new additions to12
the Children's Code recognize only a version of guardianship of the child's person.13
Even then, guardianship is a status that is authorized only for a court exercising14
juvenile jurisdiction in a child in need of care case.15
(b) Paragraph B is a reflection of a decision that in order to encourage16
persons to become guardians for children, the liability accorded to tutors under Civil17
Code Art. 2318 should not be applied to guardianship. A guardian would be liable18
for his lack of adequate supervision or other negligence but is not otherwise subject19
to strict liability. See C.C. Art. 2315. States are split on this issue; however, nine20
states (Alaska, Delaware, Iowa, New Hampshire, North Carolina, North Dakota,21
South Dakota and Tennessee) have explicitly either eliminated or severely limited22
a guardian's liability. Thirteen other states limit tort liability to the parents of a child,23
thus by implication, alleviating guardians from liability.24
(c) Paragraph C contemplates that what would be known in common law25
jurisdictions as a guardianship of property continues to lie within the jurisdiction of26
district courts in tutorship actions. In order to avoid possible conflict with tutorship27
as well as the lack of expertise of the juvenile courts concerning financial oversight,28
the guardian is required to be appointed tutor before managing the property of the29 SB NO. 32
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child. See C.C. Art. 246 et seq.1
Art. 720. Motion for guardianship2
A. After a child has been adjudicated to be in need of care, a motion for3
guardianship may be filed by the department, parent or counsel for the child.4
B. The motion shall include the following:5
(1) The name and gender of the child, and the date and place of his6
birth.7
(2) A description of the child's mental and physical health.8
(3) The current placement of the child and when it began.9
(4) The proposed guardian's name, address, and relationship, if any, to10
the child.11
(5) The name and address of the parents of the child.12
(6) A plain and concise statement of the facts on which the motion for13
guardianship is sought and why neither adoption nor reunification with a14
parent is in the best interest of the child.15
C. If any of the information required by Paragraph B is unknown, the16
motion shall state that fact. In addition, if the location of either parent is17
unknown, the motion shall disclose efforts to locate him.18
D. Unless not yet completed, the home study of the proposed guardian's19
home, as required by Article 721, shall be attached to the motion. If not20
attached, it shall be submitted to the court as soon as it is completed.21
Comments – 201122
(a) In addition to those enumerated in Paragraph A, another individual could23
seek to intervene in accordance with Article 707 for the purpose of being named24
guardian or to object to the proceedings.25
(b) By administrative Rule LAC 67:V., Chapter 41, Louisiana has adopted26
a State Plan that qualifies for the federally funded subsidy authorized by the27
"Fostering Connection to Success and Increasing Adoptions Act of 2008", P.L. 110-28
351, 42 U.S.C. 671 et al. For subsidy, the child must be living with the proposed29 SB NO. 32
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guardian for at least six months and the placement must have been certified as a1
foster home. A qualifying agreement must be finalized before the date of any2
guardianship judgment.3
(c) Guardianships that do not qualify for subsidy are permitted.4
Art. 721. Home study report5
The department shall submit to the court a confidential report of its6
investigation and evaluation of the proposed guardian's home. The report shall7
include the following:8
(1) The moral and financial fitness of the proposed guardian.9
(2) The conditions of the proposed guardian's home with respect to10
health, adjustment, and other advantages or disadvantages for the child.11
(3) The physical and mental condition of the child and his reaction to the12
proposed guardianship.13
(4) The proposed guardian's plan for the child if the guardian becomes14
incapable of providing care.15
Comments - 201116
(a) The source of this article is Ch.C. Art. 1229(A). As a precaution for the17
child's safety, a home study of a prospective guardian is just as important as it is for18
an adoptive home. No new investigation is required. In most cases, because the19
department has long sought a permanent plan for the child, it has already conducted20
such an inquiry into the fitness of the guardian and his home. In adoptions, there is21
no authorization for the department to delegate this investigation to any private22
agency.23
(b) Subparagraph (4) reflects best practices in case planning for the child.24
Article 722. Grounds; hearing; order25
A. The mover shall have the burden of proof to show the following by26
clear and convincing evidence:27
(1) The child has been adjudicated to be in need of care.28
(2) Neither adoption nor reunification with a parent is in the best interest29 SB NO. 32
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of the child.1
(3) The child has resided for at least six months with the proposed2
guardian, unless the court waives the residence requirement for good cause.3
(4) The proposed guardian is able to provide a safe, stable, and4
wholesome home for the child for the duration of the child's minority.5
B. If the child is twelve years of age or older, the court shall solicit and6
consider his wishes in the matter.7
C. The court shall hold a hearing before approving a guardianship and8
shall, at the conclusion of the hearing, enter a written order that includes the9
findings upon which the order is based.10
Comment - 201111
In most cases, the child will have lived with the proposed guardian for some12
period before the hearing. Similarly, as a "permanent placement" the child will13
typically remain in the guardian's care throughout the child's minority. Subparagraph14
B is patterned on the similar requirement in an adoption. See for example, Ch.C.15
Art. 1208(C).16
Art. 723. Order of guardianship17
A. The court may grant the motion and appoint a guardian for the child18
if the court finds by clear and convincing evidence that the requirements of19
Article 722 have been met and that the proposed guardianship is in the best20
interest of the child.21
B. The guardianship order shall address the frequency and nature of22
visitation or contact between the child and his parent, as necessary to ensure the23
health, safety, and best interest of the child.24
C. The guardianship order may require the parent to contribute to the25
support of the child to the extent the court finds the parent is able pursuant to26
Article 685.27
D. The order continues until the child reaches the age of eighteen years,28
unless earlier modified or terminated by the court in accordance with Article29 SB NO. 32
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724. 1
Comment - 20112
The court's authority to limit frequency of visitation includes the authority to3
forbid contact with the parent altogether. If there is proof by clear and convincing4
evidence that parental contact would cause substantial harm to the child, contact can5
be constitutionally eliminated. Troxel v. Granville, 530 U.S. 57 (2000); Santosky v.6
Kramer, 455 U.S. 745 (1982). In accordance with Ch.C. Art. 307, the juvenile court7
has exclusive original jurisdiction in child in need of care proceedings and8
continuing jurisdiction over any custody determination rendered. Ch.C. Art. 309.9
Paragraph D reflects the general jurisdictional policy of Ch.C. Art. 313.10
Art. 724. Motion for Modification of guardianship; termination of11
guardianship12
A. The court shall retain jurisdiction to enforce, modify, or terminate a13
guardianship order until the child reaches the age of eighteen years.14
B. The department, counsel for the child, the guardian, a parent15
permitted to intervene under Article 707, or the court on its own motion may16
seek to enforce, modify or terminate a guardianship order.17
C. A guardianship order may be enforced in accordance with the18
contempt provisions of Chapter 2 of Title XV of this Code.19
D. A guardianship order may be modified or terminated if the court20
finds by clear and convincing evidence that there has been a substantial and21
material change in the circumstances of the guardian or child because of either22
of the following:23
(1) The guardian no longer wishes to serve or can no longer serve as24
guardian of the child.25
(2) Continuation of the guardianship is so deleterious to the child as to26
justify a modification or termination of the relationship or the harm likely to be27
caused from a change in the guardianship is substantially outweighed by the28
advantages to the child of the modification.29 SB NO. 32
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E. The court shall hold a hearing before modifying or terminating a1
guardianship and shall, at the conclusion of the hearing, enter a written order2
that includes the findings upon which the order is based.3
Comments - 20114
(a) This article is suggested by the Georgia statute, GA.CODE S 15-11-356;5
however, several features have been added. Enforcement of a guardianship6
judgment, if necessary, could be achieved through ordinary contempt provisions,7
pursuant to Chapter 2 of Title XV of this Code.8
(b) Paragraph B reflects a policy decision of limiting those who can move for9
a reconsideration of a guardianship judgment. This Paragraph is intended to10
preclude a parent from having this right of action unless the parent first is able to11
demonstrate good cause that intervention is warranted. Paragraph B does not12
broaden the grounds for modification that are set forth in Paragraph D.13
(c) Paragraph D reflects the policy that the most important feature of a14
guardianship was its permanence during the child's minority; therefore, the standard15
for modification or termination ought to be quite stringent, except where the16
guardian seeks termination or modification. Thus, the material change must occur17
in the circumstances of the guardian or child. Improvement of a parent's capabilities,18
for example, would not satisfy the threshold requirement that some deterioration in19
the quality of the guardian's care must be demonstrated. The Louisiana custody20
modification standard announced in Bergeron v. Bergeron, 492 So.2d 1193 (La.21
1986) is used here in Subparagraph D(2).22
* * *23
Art. 1511. Definitions24
As used in this Chapter:25
(1) "Guardianship of the person of a child" means the duty and authority to26
make important decisions in matters having a permanent effect on the life and27
development of the minor and to be concerned about his general welfare. It shall28
include but shall not necessarily be limited to either number or kind to:29 SB NO. 32
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(a) The authority to consent to marriage, to enlistment in the armed forces of1
the United States, or to major medical, psychiatric, and surgical treatment, to2
represent the minor in legal actions, to make other decisions of substantial legal3
significance concerning the minor.4
(b) The authority and duty of reasonable visitation, except to the extent that5
such right of visitation has been limited by court order.6
(c) The rights and responsibilities of legal custody, including the right to have7
physical custody of the child and to exercise the rights and duty to protect, train, and8
discipline him and to provide him with food, shelter, education, and ordinary medical9
care, all subject to any residual rights possessed by the child's parents.10
(2) (1)"Legal custody" means a legal status created by court order that vests11
in a custodian the right to have physical custody of the child and the right and duty12
to protect, train, and discipline him and to provide him with food, shelter, education,13
and ordinary medical care, all subject to the powers, rights, and duties and14
responsibilities of the guardian of the person of the child and subject to any residual15
parental rights and responsibilities.16
(3) (2)"Physical custody" means the duty and authority to provide care for17
a child in the home of the custodian.18
(4) (3)"Voluntary transfer of custody" is a parent's knowing and voluntary19
relinquishment of legal custody or guardianship to an agency, institution, or20
individual, subject to residual parental rights retained by the parent and under such21
terms and conditions that enable the child to receive adequate care and treatment.22
* * *23
Art. 1514. Petition for voluntary transfer24
* * *25
D. If a guardian has been appointed, a petition for voluntary transfer26
cannot be filed. If a change in guardianship is desired, a motion to modify the27
guardianship may be filed in accordance with Article 724.28
Comment – 201129 SB NO. 32
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The decision to limit the court's authority to render a guardianship judgment1
to child in need of care proceedings necessitates this change. A parent may no2
longer create a guardianship by contract. See Ch.C. Art. 722.3
Art. 1515. Petition; contents; form4
* * *5
B. The form for the petition shall be as follows:6
"PETITION FOR VOLUNTARY TRANSFER OF CUSTODY7
The petition of_______ (all legal custodians of the child unless otherwise indicated8
in Paragraph III of the petition), domiciled in the parish of _______, respectfully9
represent(s):10
* * *11
V.12
That petitioner(s) desire to transfer physical custody OR legal custody OR13
guardianship of the person of the children (indicate one) for the period of time14
_______(specify intended duration) in accordance with the following terms and15
conditions _________________________________________________________16
____________________________________________________________________17
(may include provisions for support and/or visitation).18
* * *19
Art. 1516. Affidavit of acceptance; contents; form20
* * *21
B. The form for the Affidavit of Acceptance shall be as follows:22
"AFFIDAVIT OF ACCEPTANCE23
* * *24
That affiant does knowingly and voluntarily accept physical custody OR legal25
custody OR guardianship of the person of the children (indicate one) of _________,26
_________, _________, _________ (name(s) of child(ren)) for the period of time27
______________ (specify intended period) in accordance with the following terms28
and conditions:29 SB NO. 32
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* * *1
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Jerry G. Jones.
DIGEST
Present law in Children's Code provides definition of "legal guardianship" but does not
provide rules governing such legal guardianship.
Proposed law deletes definition and eliminates concept of legal guardianship.
Proposed law defines "guardianship" as the judicial placement of a child under the duty and
authority of a guardian to make decisions in matters having a permanent effect on the life
and development of the child as set forth in the proposed law.
Proposed law sets forth requirements of guardianship, including design to provide a
permanent placement for children in need of care, case plan for children whose permanent
plan is guardianship, purpose of guardianship, rights and responsibilities of the guardian, and
home study report.
Proposed law sets forth procedures and requirements for motion, hearing, and order for
guardianship, and for modification and termination of guardianship. Provides that if a
guardian has been appointed, a petition for voluntary transfer cannot be filed and a change
in guardianship is through motion to modify the guardianship.
Proposed law provides that in the performance of his duties the guardian will be liable for
his own negligence but will not be vicariously liable for his ward.
(Amends Ch. C. Arts. 116(12.1), 675(B)(3), 681, 1511, 1515(B), and 1516(B); adds Ch. C.
Arts. 718, 719, 720, 721, 722, 723, 724 and 1514(D)