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8-872 Permanent guardianship

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The state bar of arizona
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A. Any party to a dependency proceeding or a pending dependency proceeding may file a motion for permanent guardianship. The motion shall be verified by the person who files the motion and shall include the following:

1. The name, sex, residence and date and place of birth of the child.

2. The facts and circumstances supporting the grounds for permanent guardianship.

3. The name and address of the prospective guardian and a statement that the prospective guardian agrees to accept the duties and responsibilities of guardianship.

4. The basis for the court’s jurisdiction.

5. The relationship of the child to the prospective guardian.

6. Whether the child is subject to the Indian child welfare act of 1978 (P.L. 95-608; 92 Stat. 3069; 25 United States Code sections 1901 through 1963) and if so:

(a) The tribal affiliations of the child’s parents.

(b) The specific actions the person who files the motion has taken to notify the parents’ tribes and the results of those contacts, including the names, addresses, titles and telephone numbers of the persons contacted. The person shall attach to the motion as exhibits any correspondence with the tribes.

(c) The specific efforts that were made to comply with the placement preferences under the Indian child welfare act of 1978 or the placement preferences of the appropriate Indian tribes.

7. The name, address, marital status and date of birth of the birth parents, if known.

B. The person who files the motion shall serve notice of the hearing and a copy of the motion on all parties as prescribed in rule 5(c) of the Arizona rules of civil procedure, including any person who has filed a petition to adopt or who has physical custody pursuant to a court order in a foster-adoptive placement. In addition to the requirements of rule 5(c) of the Arizona rules of civil procedure, the notice shall be sent by registered mail, return receipt requested, to any parent, Indian custodian and tribe of an Indian child as defined by the federal Indian child welfare act of 1978 (25 United States Code section 1903).

C. The person who files the motion shall provide a copy of the notice of hearing to the following persons if the person has not been served pursuant to subsection B of this section:

1. The child’s current physical custodian.

2. Any foster parent with whom the child has resided within six months before the date of the hearing.

3. The prospective guardian if the guardian is not the current physical custodian.

4. Any other person the court orders to be provided notice.

D. In a proceeding for permanent guardianship, on the request of a parent, the court shall appoint counsel for any parent found to be indigent if the parent is not already represented by counsel. The court may also appoint one for the child if a guardian ad litem has not already been appointed.

E. Before a final hearing, the department, the agency or a person designated as an officer of the court shall conduct an investigation addressing the factors set forth in section 8-871, whether the prospective permanent guardian or guardians are fit and proper persons to become permanent guardians and whether the best interests of the child would be served by granting the permanent guardianship. The findings of this investigation shall be set forth in a written report provided to the court and all parties before the hearing. The court may require additional investigation if it finds that the welfare of the child will be served or if additional information is necessary to make an appropriate decision regarding the permanent guardianship. The court may charge a reasonable fee for this investigation pursuant to section 8-133, if performed by an officer of the court. The court may waive the requirements of this subsection for good cause.

F. Before the court may appoint a guardian, the court shall require the prospective guardian to furnish either a valid fingerprint clearance card or a full set of fingerprints to enable the court to determine the applicant’s suitability as guardian. If the prospective guardian does not submit a valid fingerprint clearance card, the prospective guardian shall submit a full set of fingerprints to the court for the purpose of obtaining a state and federal criminal records check pursuant to section 41-1750 and Public Law 92-544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation.

G. The person who files the motion has the burden of proof by clear and convincing evidence. In any proceeding involving a child who is subject to the Indian child welfare act of 1978, the person who files the motion has the burden of proof by beyond a reasonable doubt.

H. A court order vesting permanent guardianship with an individual divests the birth or adoptive parent of legal custody of or guardianship for the child but does not terminate the parent’s rights. A court order for permanent guardianship does not affect the child’s inheritance rights from and through the child’s birth or adoptive parents.

I. On finding that grounds exist for a permanent guardianship, the court may incorporate into the final order provisions for visitation with the natural parents, siblings or other relatives of the child if this order would be in the child’s best interests and any other provision that is necessary to rehabilitate the child or to provide for the child’s continuing safety and well-being. The court may order a parent to contribute to the support of the child to the extent it finds the parent is able.

J. On the entry of the order establishing a permanent guardianship, the dependency action shall be dismissed. If the child was in the legal custody of the department during the dependency, the court may order the department to conduct the investigation and prepare the report for the first report and review hearing. If the child was not in the legal custody of the department, the court may order the child’s attorney or guardian ad litem to file a report for the report and review hearing. The court shall retain jurisdiction to enforce its final order of permanent guardianship. The court may order a report and shall set a review to be held within one year following the entry of the final order and may set such other and further proceedings as may be in the best interests of the child. Before a report and review hearing, the court may cause an investigation to be conducted of the facts and circumstances surrounding the welfare and best interests of the child and a written report to be filed with the court. The court may charge a reasonable fee for this investigation pursuant to section 8-133, if performed by an officer of the court.

K. The department or agency shall not be responsible for the requirements pursuant to subsections E, I and J of this section for a motion concerning a child not in the care, custody and control of the department or agency.

L. The court shall provide the guardian with written notice of the sibling information exchange program established pursuant to section 8-543.

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