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Regular Session, 2011 ENROLLED
SENATE BILL NO. 32
BY SENATORS BROOME, CLAITOR, DONAHUE, MURRAY AND WILLARD-LEWIS
(On Recommendation of the Louisiana State Law Institute)
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
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 "Guardianship" means the judicial17
placement of a child under the duty and authority of a guardian to make important18
ACT No. 128 SB NO. 32 ENROLLED
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decisions in matters having a permanent effect on the life and development of the1
child as set forth in Article 719 and the responsibility for the child's general welfare2
until he reaches the age of majority, subject to any residual rights possessed by the3
child's parents. It shall include but not necessarily be limited to:4
(i) The authority to consent to marriage, to enlistment in the armed forces of5
the United States, to represent the minor in legal actions, to make other6
decisions of substantial legal significance concerning the minor.7
(ii) The authority and duty of reasonable visitation, except to the extent that8
such right of visitation has been limited by court order.9
(III) The rights and responsibilities of legal custody.10
(b) The term "legal guardian" means to the caretaker in such a relationship.11
* * *12
Comment - 201113
In this revision "guardian" is defined more broadly. See Ch.C. Art. 719. If14
guardianship is granted, most parental rights and responsibilities are allocated to the15
guardian. The child has been declared abused or neglected and since that16
adjudication, continuing case review has confirmed that parental abandonment or17
dereliction persists, thus precluding the safe return of the child to the parent's custody18
or control. The modifier "legal" is omitted as redundant although "legal guardian"19
is the term used by federal statutes. See, for example, the "Fostering Connections20
to Success and Increasing Adoptions Act of 2008", Public Law 110-351, 42 U.S.C.21
671 et al.22
* * *23
Art. 675. Case plan purpose; content24
* * *25
B. The case plan shall include at least include all of the following:26
* * *27
(3) Documentation of the efforts the agency is making to safely return the28
child home or to finalize the child's placement in an alternative safe and permanent29
home in accordance with the child's permanent plan. For children whose permanent30 SB NO. 32 ENROLLED
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plan is adoption or placement in another permanent home, this documentation shall1
include child-specific recruitment efforts, such as the use of state, regional, and2
national adoption exchanges, including electronic exchange systems to facilitate3
orderly and timely instate and interstate placements. For children whose4
permanent plan is guardianship, the documentation shall include the facts and5
circumstances supporting guardianship, including the reasons that the plan is6
in the best interest of the child and that reunification with a parent and7
adoption are not appropriate permanent plans. The documentation shall also8
address the suitability and commitment of the proposed guardian to offer a9
wholesome, stable home for the child throughout minority.10
* * *11
Comment - 201112
According to Ch.C. Art. 603(15), guardianship is a "permanent placement",13
ending at the age of majority. See Ch.C. Art. 723(D). The juvenile court is required14
to conduct a case review hearing at least every six months during the child's minority15
until a permanent placement of the child has been achieved. "Wholesome" and16
"stable" are used elsewhere in C.C. Art. 133 and Ch.C. Art. 702(C).17
* * *18
Art. 681. Dispositional alternatives19
A. In a case in which a child has been adjudicated to be in need of care, the20
child's health and safety shall be the paramount concern, and the court may do any21
of the following:22
(1) Place the child in the custody of a parent or such other suitable person on23
such terms and conditions as deemed in the best interest of the child including but24
not limited to the issuance of a protective order pursuant to Article 618.25
(2) Place the child in the custody of a private or public institution or agency.26
(3) Commit a child found to be mentally ill to a public or private mental27
institution or institution for the mentally ill.28
(4) Grant guardianship of the child to any individual a nonparent.29
(5) Make such other disposition or combination of the above dispositions as30 SB NO. 32 ENROLLED
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the court deems to be in the best interest of the child.1
B. A child in need of care shall not be committed to the Department of2
Public Safety and Corrections, nor shall such department accept a child in need of3
care.4
Comment - 20115
The substance and procedure for guardianships is governed by Chapter 19 of this6
Title.7
* * *8
Art. 718. Purpose of guardianship9
A. The purpose of guardianship is to provide a permanent placement for10
children when neither reunification with a parent nor adoption has been found11
to be in their best interest; to encourage stability and permanence in the lives12
of children who have been adjudicated to be in need of care and have been13
removed from the custody of their parent; and to increase the opportunities for14
the prompt permanent placement of children, especially with relatives, without15
ongoing supervision by the department.16
B. This Chapter is intended to ensure that the fundamental needs of17
children are met and the constitutional rights of all parties are recognized and18
enforced.19
Comments - 201120
(a) Guardianship is a common law concept that is similar but not identical21
to the civilian concept of tutorship. In 2004, the legislature approved a proposal to22
add guardianship ("Legal guardianship" as it is known under federal law) as a23
defined term in the Children's Code (Ch.C. Art. 116 (12.1) and to authorize the24
juvenile court to appoint a guardian as a permanent plan for child. (Ch.C.25
Art.702(C)(3)). Under federal statutes, when a child is removed from his parents'26
care and control, the state is obligated to submit a "permanent plan" within twelve27
months after the child enters foster care. The Adoption and Safe Families Act of28
1997, P.L. 105-89, 42 U.S.C. 601 et seq. The options are to return the child to his29
parents; to terminate the parental rights and try to place the child for adoption; to30 SB NO. 32 ENROLLED
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place the child in guardianship; to place the child in the legal custody of a relative;1
or as a last resort alternative, to place the child in the least restrictive most family-2
like alternative permanent living arrangement (which can be long-term foster care).3
Adoption and Safe Families Act of 1997, P.L. 105-89, 42 U.S.C. 601 et seq.; Ch.C.4
Art. 601(15). Guardianship often becomes the only viable alternative after the other5
two preferred options (reunification or adoption) prove to be beyond reach. Ch.C.6
Art. 702(C).7
(b) In 2008, Congress enacted "Fostering Connections to Success and8
Increasing Adoptions Act," P.L. 110-351, 42 U.S.C. 671 et al. It calls for the9
expansion of the practice of appointing relatives as "guardians" for children who are10
stranded in the foster care system. The statute provides incentives for states to11
encourage these guardianships and provides federal funds for Title IV-E Social12
Security Act subsidies to support relatives in assuming such responsibilities. The13
authorization of subsidies will increase the use of guardianship as a permanent plan14
for abused and neglected children.15
(c) The 2009 State Plan submitted by the Department of Children and Family16
Services commits the Department to this goal of increased guardianships and17
clarifying the law and policy necessary for effective implementation. The Plan was18
approved and funded by the federal government.19
(d) Clarification of guardianship is important because judges are concerned20
about exactly what the option entails, and caseworkers must be able to explain to21
potential guardians their rights and obligations toward the child.22
(e) The source of this Article is the permanent guardianship statute of the23
District of Columbia, D.C. Code Ann. S 16-2381, although the text has been24
substantially revised.25
Art. 719. Guardian's rights and responsibilities26
A. Unless the court specifies otherwise, a guardian shall exercise the27
rights and responsibilities of legal custody and shall have the authority to28
consent to the child's marriage, to consent to his enlistment in the armed forces29
of the United States, and to make other decisions concerning the child, except30 SB NO. 32 ENROLLED
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the right to consent to the child's adoption.1
B. Guardianship does not subject the guardian to responsibility under2
Civil Code Articles 2317 or 2318 for damage occasioned by the child.3
C. The rights and responsibilities of administering the property of the4
child are governed by the law of tutorship.5
Comments - 20116
(a) The common law concept of guardianship encompasses both a7
guardianship of the person and a guardianship of property. These new additions to8
the Children's Code recognize only a version of guardianship of the child's person.9
Even then, guardianship is a status that is authorized only for a court exercising10
juvenile jurisdiction in a child in need of care case.11
(b) Paragraph B is a reflection of a decision that in order to encourage12
persons to become guardians for children, the liability accorded to tutors under Civil13
Code Art. 2318 should not be applied to guardianship. A guardian would be liable14
for his lack of adequate supervision or other negligence but is not otherwise subject15
to strict liability. See C.C. Art. 2315. States are split on this issue; however, nine16
states (Alaska, Delaware, Iowa, New Hampshire, North Carolina, North Dakota,17
South Dakota and Tennessee) have explicitly either eliminated or severely limited18
a guardian's liability. Thirteen other states limit tort liability to the parents of a child,19
thus by implication, alleviating guardians from liability.20
(c) Paragraph C contemplates that what would be known in common law21
jurisdictions as a guardianship of property continues to lie within the jurisdiction of22
district courts in tutorship actions. In order to avoid possible conflict with tutorship23
as well as the lack of expertise of the juvenile courts concerning financial oversight,24
the guardian is required to be appointed tutor before managing the property of the25
child. See C.C. Art. 246 et seq.26
Art. 720. Motion for guardianship27
A. After a child has been adjudicated to be in need of care, a motion for28
guardianship may be filed by the department, parent or counsel for the child.29
B. The motion shall include all of the following:30 SB NO. 32 ENROLLED
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(1) The name and gender of the child, and the date and place of his1
birth.2
(2) A description of the mental and physical health of the child.3
(3) The current placement of the child and when it began.4
(4) The name and address of the proposed guardian and any5
relationship to the child.6
(5) The name and address of the parents of the child.7
(6) A plain and concise statement of the facts on which the motion for8
guardianship is sought and why neither adoption nor reunification with a9
parent is in the best interest of the child.10
C. If any of the information required by Paragraph B of this Article is11
unknown, the motion shall state that fact. In addition, if the location of either12
parent is unknown, the motion shall disclose efforts to locate him.13
D. Unless not yet completed, the home study, as required by Article 721,14
shall be attached to the motion. If not attached, it shall be submitted to the15
court as soon as it is completed.16
Comments – 201117
(a) In addition to those enumerated in Paragraph A, another individual could18
seek to intervene in accordance with Article 707 for the purpose of being named19
guardian or to object to the proceedings.20
(b) By administrative Rule LAC 67:V., Chapter 41, Louisiana has adopted21
a State Plan that qualifies for the federally funded subsidy authorized by the22
"Fostering Connection to Success and Increasing Adoptions Act of 2008", P.L. 110-23
351, 42 U.S.C. 671 et al. For subsidy, the child must be living with the proposed24
guardian for at least six months and the placement must have been certified as a25
foster home. A qualifying agreement must be finalized before the date of any26
guardianship judgment.27
(c) Guardianships that do not qualify for subsidy are permitted.28
Art. 721. Home study report29
The department shall submit to the court a confidential report of its30 SB NO. 32 ENROLLED
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investigation and evaluation of the home of the proposed guardian. The report1
shall include all of the following:2
(1) The moral and financial fitness of the proposed guardian.3
(2) The conditions of the home of the proposed guardian with respect to4
health, adjustment, and other advantages or disadvantages for the child.5
(3) The physical and mental condition of the child and his reaction to the6
proposed guardianship.7
(4) The plan for the child if the proposed guardian becomes incapable8
of providing care.9
Comments - 201110
(a) The source of this Article is Ch.C. Art. 1229(A). As a precaution for the11
child's safety, a home study of a prospective guardian is just as important as it is for12
an adoptive home. No new investigation is required. In most cases, because the13
department has long sought a permanent plan for the child, it has already conducted14
such an inquiry into the fitness of the guardian and his home. In adoptions, there is15
no authorization for the department to delegate this investigation to any private16
agency.17
(b) Subparagraph (4) reflects best practices in case planning for the child.18
Art. 722. Grounds; hearing; order19
A. The mover shall have the burden of proving all of the following by20
clear and convincing evidence:21
(1) The child has been adjudicated to be in need of care.22
(2) Neither adoption nor reunification with a parent is in the best interest23
of the child.24
(3) The child has resided for at least six months with the proposed25
guardian, unless the court waives the residence requirement for good cause.26
(4) The proposed guardian is able to provide a safe, stable, and27
wholesome home for the child for the duration of minority.28
B. If the child is twelve years of age or older, the court shall solicit and29
consider his wishes in the matter.30 SB NO. 32 ENROLLED
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C. The court shall hold a hearing before approving a guardianship and1
shall, at the conclusion of the hearing, enter a written order that includes the2
findings upon which the order is based.3
Comment - 20114
In most cases, the child will have lived with the proposed guardian for some5
period before the hearing. Similarly, as a "permanent placement" the child will6
typically remain in the guardian's care throughout the child's minority. Paragraph7
B is patterned on the similar requirement in an adoption. See for example, Ch.C.8
Art. 1208(C).9
Art. 723. Order of guardianship10
A. The court may grant the motion and appoint a guardian for the child11
if the court finds by clear and convincing evidence that the requirements of12
Article 722 have been met and that the proposed guardianship is in the best13
interest of the child.14
B. The guardianship order shall address the frequency and nature of15
visitation or contact between the child and his parent, as necessary to ensure the16
health, safety, and best interest of the child.17
C. The guardianship order may require the parent to contribute to the18
support of the child to the extent the court finds the parent is able pursuant to19
Article 685.20
D. The guardianship order continues until the child obtains eighteen21
years of age, unless earlier modified or terminated by the court in accordance22
with Article 724. 23
Comment - 201124
The court's authority to limit frequency of visitation includes the authority to25
forbid contact with the parent altogether. If there is proof by clear and convincing26
evidence that parental contact would cause substantial harm to the child, contact can27
be constitutionally eliminated. Troxel v. Granville, 530 U.S. 57 (2000); Santosky v.28
Kramer, 455 U.S. 745 (1982). In accordance with Ch.C. Art. 307, the juvenile court29
has exclusive original jurisdiction in child in need of care proceedings and30 SB NO. 32 ENROLLED
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continuing jurisdiction over any custody determination rendered. Ch.C. Art. 309.1
Paragraph D reflects the general jurisdictional policy of Ch.C. Art. 313.2
Art. 724. Motion for Modification of guardianship; termination of3
guardianship4
A. The court shall retain jurisdiction to enforce, modify, or terminate a5
guardianship order until the child obtains eighteen years of age.6
B. The department, counsel for the child, the guardian, a parent7
permitted to intervene under Article 707, or the court on its own motion may8
seek to enforce, modify or terminate a guardianship order.9
C. A guardianship order may be enforced in accordance with the10
contempt provisions of Chapter 2 of Title XV of this Code.11
D. A guardianship order may be modified or terminated if the court12
finds by clear and convincing evidence that there has been a substantial and13
material change in the circumstances of the guardian or child because of any of14
the following:15
(1) The guardian no longer wishes to serve or can no longer serve as16
guardian of the child.17
(2) Continuation of the guardianship is so deleterious to the child as to18
justify a modification or termination of the relationship or the harm likely to be19
caused from a change in the guardianship is substantially outweighed by the20
advantages to the child of the modification.21
E. The court shall hold a hearing before modifying or terminating a22
guardianship and shall, at the conclusion of the hearing, enter a written order23
that includes the findings upon which the order is based.24
Comments - 201125
(a) This Article is suggested by the Georgia statute, GA.CODE S 15-11-356;26
however, several features have been added. Enforcement of a guardianship27
judgment, if necessary, could be achieved through ordinary contempt provisions,28
pursuant to Chapter 2 of Title XV of this Code.29
(b) Paragraph B reflects a policy decision of limiting those who can move for30 SB NO. 32 ENROLLED
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a reconsideration of a guardianship judgment. This Paragraph is intended to1
preclude a parent from having this right of action unless the parent first is able to2
demonstrate good cause that intervention is warranted. Paragraph B does not3
broaden the grounds for modification that are set forth in Paragraph D.4
(c) Paragraph D reflects the policy that the most important feature of a5
guardianship was its permanence during the child's minority; therefore, the standard6
for modification or termination ought to be quite stringent, except where the7
guardian seeks termination or modification. Thus, the material change must occur8
in the circumstances of the guardian or child. Improvement of a parent's capabilities,9
for example, would not satisfy the threshold requirement that some deterioration in10
the quality of the guardian's care must be demonstrated. The Louisiana custody11
modification standard announced in Bergeron v. Bergeron, 492 So.2d 1193 (La.12
1986) is used here in Subparagraph D(2).13
* * *14
Art. 1511. Definitions15
As used in this Chapter:16
(1) "Guardianship of the person of a child" means the duty and authority to17
make important decisions in matters having a permanent effect on the life and18
development of the minor and to be concerned about his general welfare. It shall19
include but shall not necessarily be limited to either number or kind to:20
(a) The authority to consent to marriage, to enlistment in the armed forces of21
the United States, or to major medical, psychiatric, and surgical treatment, to22
represent the minor in legal actions, to make other decisions of substantial legal23
significance concerning the minor.24
(b) The authority and duty of reasonable visitation, except to the extent that25
such right of visitation has been limited by court order.26
(c) The rights and responsibilities of legal custody, including the right to have27
physical custody of the child and to exercise the rights and duty to protect, train, and28
discipline him and to provide him with food, shelter, education, and ordinary medical29
care, all subject to any residual rights possessed by the child's parents.30 SB NO. 32 ENROLLED
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(2) (1)"Legal custody" means a legal status created by court order that vests1
in a custodian the right to have physical custody of the child and the right and duty2
to protect, train, and discipline him and to provide him with food, shelter, education,3
and ordinary medical care, all subject to the powers, rights, and duties and4
responsibilities of the guardian of the person of the child and subject to any residual5
parental rights and responsibilities.6
(3) (2)"Physical custody" means the duty and authority to provide care for7
a child in the home of the custodian.8
(4) (3)"Voluntary transfer of custody" is a parent's knowing and voluntary9
relinquishment of legal custody or guardianship to an agency, institution, or10
individual, subject to residual parental rights retained by the parent and under such11
terms and conditions that enable the child to receive adequate care and treatment.12
* * *13
Art. 1514. Petition for voluntary transfer14
* * *15
D. If a guardian has been appointed, a petition for voluntary transfer16
may not be filed. To change a guardianship order a motion to modify the17
guardianship may be filed in accordance with Article 724.18
Comment – 201119
The decision to limit the court's authority to render a guardianship judgment20
to child in need of care proceedings necessitates this change. A parent may no21
longer create a guardianship by contract. See Ch.C. Art. 722.22
Art. 1515. Petition; contents; form23
* * *24
B. The form for the petition shall be as follows:25
"PETITION FOR VOLUNTARY TRANSFER OF CUSTODY26
The petition of_______ (all legal custodians of the child unless otherwise indicated27
in Paragraph III of the petition), domiciled in the parish of _______, respectfully28
represent(s):29
I.30 SB NO. 32 ENROLLED
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That petitioner(s) reside at the following address(es):1
________________________________________________________________________2
________________________________________________________________________3
II.4
That petitioner(s) is/are the parent(s) and legal custodian(s) of the minor child(ren),5
namely _______________________________, whose date of birth is ______________ (add6
same information for all children subject to the petition), as more fully appears from the7
attached certificate(s) of birth.8
III.9
That there are no other legal custodians of the child(ren) OR that a legal custodian,10
namely _______________________, is unable to join in this petition for the following11
reasons:12
________________________________________________________________________13
________________________________________________________________________14
________________________________________________________________________15
_______________________________________________________________________.16
IV.17
That petitioner(s) desire(s) to knowingly and voluntarily transfer custody of the18
above named children to ____________________________, which individual(s), institution19
or agency reside(s) at the following address:20
________________________________________________________ and who have the21
following relationship with the children:22
________________________________________________________________________23
________________________________________________________________________.24
V.25
That petitioner(s) desire to transfer physical custody OR legal custody OR26
guardianship of the person of the children (indicate one) for the period of time27
_______(specify intended duration) in accordance with the following terms and28
conditions _________________________________________________________29
____________________________________________________________________30 SB NO. 32 ENROLLED
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(may include provisions for support and/or visitation).1
VI.2
That petitioners desire this transfer of custody for the following reasons:3
________________________________________________________________________4
________________________________________________________________________5
________________________________________________________________________6
_________________________________________________________________________7
________________________________________________________________________.8
Has the Department of Social ""Services, office of community ""services, or child9
protective services Children and Family Services recommended to you that this petition10
be filed?11
________ _______12
Yes No13
If yes, state name of the Department of Social Services Children and Family14
Services worker making the recommendation and the reasons for the recommendation with15
particularity.16
If the department has recommended that this petition be filed, you have a right to17
counsel. Have you consulted with an attorney?18
________ _______19
Yes No20
VII.21
That ________________________ has/have agreed to and does/do desire to accept22
custody of the child(ren) to the extent and under the terms and conditions stated in this23
petition, as more fully appears in the attached Affidavit of Acceptance.24
WHEREFORE, petitioner(s) pray(s) that there be judgment herein transferring25
custody of the child(ren), _______________, _____________, ________________,26
________________, to ________________________, to the extent and under the terms and27
conditions set forth in this petition.28
________________________________29
(Signature and address of Petitioner(s))30 SB NO. 32 ENROLLED
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or counsel for Petitioner(s)1
(If in proper person, petition should be signed in presence of a notary.)2
SWORN TO AND SUBSCRIBED BEFORE ME ON THI S THE _____ DAY OF3
___________________, 19 20 ___.4
____________________________5
NOTARY PUBLIC"6
Art. 1516. Affidavit of acceptance; contents; form7
* * *8
B. The form for the Affidavit of Acceptance shall be as follows:9
"AFFIDAVIT OF ACCEPTANCE10
BEFORE ME, the undersigned Notary Public, personally came and appeared:11
_______________________________________________________12
___________________________________, individual(s) OR a representative of13
_____________________________ (name of agency or institution) who, being first duly14
sworn, did depose and state:15
That affiant is a person of the full age of majority and resides at16
___________________________________ (address of individual(s), agency, or institution)17
in ____________ Parish, Louisiana.18
That affiant does knowingly and voluntarily accept physical custody OR legal19
custody OR guardianship of the person of the children (indicate one) of _________,20
_________, _________, _________ (name(s) of child(ren)) for the period of time21
______________ (specify intended period) in accordance with the following terms22
and conditions:23
________________________________________________________________________24
________________________________________________________________________25
________________________________________________________________________26
________________________________________________________________________.27
(may include provisions for support and/or visitation)28
____________________________29
AFFIANT30 SB NO. 32 ENROLLED
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SWORN TO AND SUBSCRIBED BEFORE ME ON THIS THE ______ DAY OF1
_____________________, 19 20 ___.2
____________________________3
NOTARY PUBLIC"4
PRESIDENT OF THE SENATE
SPEAKER OF THE HOUSE OF REPRESENTATIVES
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: