§ 10A-1-4-711 — Motion for modification or termination of a permanent

guardianship. A. 1. A motion for modification or termination of a permanent guardianship may be filed by the permanent guardian, the child, or the district attorney. A modification or termination may also be ordered by the court on its own initiative. An order for modification or termination of the permanent guardianship may be entered after notice and opportunity for hearing and shall be based on a finding that there has been a substantial change of material circumstances including, but not limited to, the following: a. the parent of the child is presently able and willing to properly care for the child, b. the permanent guardian of the child is unable to properly care for the child, c. the child has been abused or neglected while in the care of the permanent guardian, or d. the permanent guardian of the child is deceased. 2. The court shall appoint a guardian ad litem for the child in any proceeding for modification or termination of a permanent guardianship. B. 1. The court may modify or terminate the order granting permanent guardianship upon a finding by clear and convincing evidence that there has been a substantial change in material circumstances and that a modification or termination of the permanent guardianship is in the child’s best interest. 2. When the modification or termination of the permanent guardianship results in the removal of the child from the home of the guardian, the court shall determine if the continuation of the child in the home of the guardian is contrary to the welfare of the child, and, if so, whether: a. reasonable efforts have been made to prevent the removal of the child from the child’s home, or b. an absence of efforts to prevent the removal of the child from the child’s home is reasonable because the removal is due to an emergency and is for the purpose of providing for the welfare of the child. 3. Where the termination of a permanent guardianship is granted for reason of the guardian’s abuse, neglect, death, or inability to care for the child, the court shall order the child returned to the legal custody of the Department of Human Services pending further hearing. The Department shall develop a new permanency plan on behalf of the child, which shall be presented to the court within thirty (30) days of the date the permanent guardianship is terminated. 4. Unless the parental rights of the child’s parent or parents have been terminated, they shall be notified that the legal guardianship has been modified or terminated and shall be entitled to participate in the new permanency planning hearing where the court shall order a new permanency plan appropriate to meet the needs of the child. 5. The court may order that reunification services again be provided to the parent or parents if it is in the best interests of the child and may consider the parent or parents for custody of the child, with Department supervision, if the parent can prove by a preponderance of the evidence that conditions which previously existed at the time of the granting of the permanent guardianship order have been substantially corrected and that reunification is the best alternative for the child.

Legislative History

Added by Laws 2009, c. 233, § 125, emerg. eff. May 21, 2009.