Reinventing Guardianship: Subsidized Guardianship, Foster Care, and Child Welfare


There are too many children in foster care. Too many are entering and staying in the system for too long. Too few within the system are able to obtain the services and support they need.

In 1990, there were roughly 400,000 children in foster care in theUnited States. Despite tremendous national attention to reducing the foster care population in the last several years, the number of children in out-of-home care grew by 45% since 1985 when there were 276,000 children in foster care. Similarly, despite efforts to reduce the number of years children spend in foster care, the average length of stay is two years – virtually the same as it was twelve years ago.

The present crisis, however, is not simply one of volume. The problems that the child welfare system most often confronts have changed over the last several decades. There are more infants with special medical needs, more sibling groups to be placed together, and many more African-American and Hispanic children. The crisis in foster care today is as much about the limitations of foster care and adoption in the face of con-temporary problems, as it is about the sheer volume of children in care.

This paper examines the possibility of making greater use of guardianship as a part of a strategy to reduce the numbers in foster care and to protect the welfare of children. Guardianship is hardly a new legal device, but child welfare agencies in the United States are only beginning to explore ways of making substantial use of guardianships, and there are varieties of guardianship that have yet to be tried as a program anywhere.

Traditional child welfare policy presents parents and their children with an all-or-nothing proposition. If a child’s parent is not fully capable of caring for the child, the child is removed from the parent’s care. For a time, the child is placed in foster care while the parent is assisted by a social worker, but all parties are repeatedly warned that this is a temporary arrangement. Either the parent will become capable and the child will be returned, or the parent will not become capable and the child will be “freed” for adoption. If the parent cannot do it all, the parent-child relationship is completely severed.

In contrast, guardianship recognizes the possibility that children can benefit from having more than one adult, if appropriate, play a role in their upbringing. Guardianship is a permanent relationship between guardian and ward, but appointment of a guardian over a child does not require the formal termination of parental rights, so a relationship between child and parent can continue. Where it serves a child’s interest, the formal responsibilities of the guardian can even be shared by a parent and another adult as co-guardians.

The dependence of the child welfare system on foster care and adoption has long had its critics, but they have become louder in recent years as more professionals have come to recognize the increasingly complex problems of children in care and the cultural traditions within which they live. Open adoption and kinship foster care represent two very different attempts to reduce the rigidity in the current system: the first by allowing a partially capable parent to retain a relationship with a child after adoption, the second by permitting a child to remain with relatives during a foster care placement. Neither, however, fully reconciles the contradictions be-tween the continued role of the child’s original family and the assumptions inherent in adoption or foster care, and both remain controversial.

Can guardianship arrangements form the basis of stronger, more coherent family structures within which children can thrive? Can they help reduce the rigidity of the present system without undue risks or costs? It seems so, but there are significant obstacles – both practical and theoretical – that would have to be overcome if guardianships were to be used widely.

This paper explores both the promise and the problems of using guardianships in this way. Section One analyzes the reasons that adoption, even when it comes with a subsidy, is an inappropriate goal for an increasing number of children in foster care. Section Two examines the advantages and disadvantages of subsidized guardianship as an alternative goal for many children in foster care, drawing on the experience of ten states that are operating subsidized guardianship programs. Finally, Section Three explores the law of guardianship in greater detail, identifying features that might prove useful if the experiments in subsidized guardianship were to be expanded beyond those ten states or into other parts of the child welfare system.


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