Chapter 229 Oregon Laws 2003

AN ACT

SB 70

Relating to juvenile guardianship; creating new provisions; and amending ORS 419A.255, 419B.365 and 419B.370.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Sections 2, 3, 4 and 5 of this 2003 Act are added to and made a part of ORS chapter 419B.

SECTION 2. (1) A party, or a person granted rights of limited participation for the purpose of filing a guardianship motion, may file a motion to establish a guardianship. The motion must be in writing and state with particularity the factual and legal grounds for the motion.

(2) Except as otherwise provided in subsection (3) of this section, the facts supporting any finding made or relief granted under this section must be established by a preponderance of evidence.

(3) If an Indian child is involved, the guardianship must be in compliance with the Indian Child Welfare Act. The facts supporting any finding made to establish a guardianship for an Indian child, including the finding that continued custody by the parents or Indian custodian would result in serious emotional or physical harm to the child, must be established by clear and convincing evidence.

(4) In a proceeding under this section, the court may receive testimony and reports as provided in ORS 419B.325.

(5) If the court has approved a plan of guardianship under ORS 419B.476, the court may grant the motion for guardianship if the court determines, after a hearing, that:

(a) The child cannot safely return to a parent within a reasonable time;

(b) Adoption is not an appropriate plan for the child;

(c) The proposed guardian is suitable to meet the needs of the child and is willing to accept the duties and authority of a guardian; and

(d) Guardianship is in the child’s best interests. In determining whether guardianship is in the child’s best interests, the court shall consider the child’s wishes.

(6) Unless vacated pursuant to section 4 of this 2003 Act, a guardianship established under this section continues as long as the child is subject to the court’s jurisdiction as provided in ORS 419B.328.

SECTION 3. (1) Upon granting a motion for guardianship under section 2 of this 2003 Act or upon granting a petition for guardianship under ORS 419B.365, the court shall issue letters of guardianship to the guardian. As provided in ORS 419A.255, a guardian may disclose letters of guardianship when necessary to fulfill the duties of a guardian. Letters of guardianship must be in substantially the following form:

______________________________________________________________________________

State of Oregon, )

) LETTERS OF

County of__ ) GUARDIANSHIP

BY THESE LETTERS OF GUARDIANSHIP be informed:

That on ____ (month) __(day), 2__, the ____ Court, ____ County, State of Oregon, appointed _____ (name of guardian) guardian for _____ (name of child) and that the named guardian has qualified and has the authority and duties of guardian for the named child including legal custody of the child, except as provided below.

IN TESTIMONY WHEREOF, I have subscribed my name and affixed the seal of the court at my office on ____ (month) __(day), 2__.

(Seal)

____, Clerk of the Court

By____, Deputy

______________________________________________________________________________

(2) In the order appointing the guardian, the court shall require the guardian to file with the court a verified written report within 30 days after each anniversary of appointment and may:

(a) Specify the frequency and nature of visitation or contact between relatives, including siblings, and the child, if the court determines that visitation or contact is in the child’s best interests;

(b) Enter an order for child support pursuant to ORS 419B.400 that complies with ORS 25.275; and

(c) Make any other order to provide for the child’s continuing safety and well-being.

(3)(a) Upon timely receipt of a report under subsection (2) of this section, the court shall review the report and cause the report to become part of the juvenile court file and may:

(A) Direct the local citizen review board to conduct a review; or

(B) Subject to the availability of funds, appoint a court visitor and require the visitor to file a report with the court.

(b) If the court does not receive a report under subsection (2) of this section in a timely manner, the court shall:

(A) Direct the local citizen review board to conduct a review; or

(B) Subject to the availability of funds, appoint a court visitor and require the visitor to file a report with the court.

(4) Except as otherwise limited by the court, a person appointed guardian has legal custody of the child and the duties and authority of legal custodian and guardian under ORS 419B.373 and 419B.376. A guardian is not liable to third persons for acts of the child solely by reason of being appointed guardian.

SECTION 4. (1) The court, on its own motion or upon the motion of a party and after such hearing as the court may direct, may review, modify or vacate a guardianship order.

(2) The court may modify a guardianship order if the court determines to do so would be in the child’s best interests.

(3) The court may vacate a guardianship order, return the child to the custody of a parent and make any other order the court is authorized to make under this chapter if the court determines that:

(a) It is in the child’s best interests to vacate the guardianship;

(b) The conditions and circumstances giving rise to the establishment of the guardianship have been ameliorated; and

(c) The parent is presently able and willing to adequately care for the child.

(4) The court may vacate a guardianship order after determining that the guardian is no longer willing or able to fulfill the duties of a guardian. Upon vacating a guardianship order under this subsection, the court shall conduct a hearing:

(a) Within 14 days, make written findings required in ORS 419B.185 (1)(a) to (d) and make any order directing disposition of the child that the court is authorized to make under this chapter; and

(b) Pursuant to ORS 419B.476 within 90 days.

(5) In determining whether it is in the child’s best interests to modify or vacate a guardianship, the court shall consider, but is not limited to considering:

(a) The child’s emotional and developmental needs;

(b) The child’s need to maintain existing attachments and relationships and to form attachments and relationships, including those with the birth family;

(c) The child’s health and safety; and

(d) The child’s wishes.

(6) In addition to service required under ORS 419B.851, a party filing a motion to vacate a guardianship shall serve the motion upon the Department of Human Services.

(7) Notwithstanding subsection (1) of this section, a parent may not move the court to vacate a guardianship once a guardianship is granted under ORS 419B.365.

SECTION 5. (1) When a child is in the legal custody of the Department of Human Services, the department shall conduct a guardianship study of the proposed guardian’s home and provide a report to the court regarding the suitability of the proposed guardian and whether guardianship is in the child’s best interests. The department shall adopt rules necessary to carry out the duties imposed by this subsection.

(2) When a child is not in the legal custody of the department, the court may order the proposed guardian to obtain, at the proposed guardian’s expense, a guardianship study of the proposed guardian’s home and provide a report to the court regarding the suitability of the proposed guardian and whether guardianship is in the child’s best interests.

SECTION 6. ORS 419B.365 is amended to read:

419B.365. (1) At any time following establishment of jurisdiction and wardship under ORS 419B.100, but prior to filing of a petition under ORS 419B.500, or after dismissal of a petition filed under ORS 419B.500 if it fails to result in termination of the parent’s rights, a party, or person granted rights of limited participation for the purpose of filing a guardianship petition, may file, and the court may hear, a petition for permanent guardianship. If the Department of Human Services chooses not to participate in a proceeding initiated by an intervenor under ORS 419B.875, the state is not foreclosed from filing a subsequent action should the intervenor’s petition be denied.

[(2) Except as otherwise provided in this section, the juvenile court shall hear the permanent guardianship case and follow the procedures in ORS chapter 125.]

[(3) The court shall appoint as a guardian a suitable person who has petitioned the court to be appointed permanent guardian of the child and who has standing under ORS 419B.875.]

[(4)] (2) The grounds for granting a permanent guardianship are the same as those for termination of parental rights.

[(5)] (3) The court shall grant a permanent guardianship if it finds by clear and convincing evidence that:

(a) The grounds cited in the petition are true; and

(b) It is in the best interest of the child that the parent never have physical custody of the child but that other parental rights and duties should not be terminated.

[(6) A person appointed permanent guardian has the duties and authority of a guardian appointed under ORS chapter 125. The annual report requirement in ORS 125.325 applies to a permanent guardianship granted under this section.]

[(7) Upon its own motion or that of a parent, the child or the guardian, the court granting the guardianship may at any time enter orders regarding contact, parenting time and child support when the orders are appropriate and in the best interest of the child. The court may modify or enforce the orders only if the party seeking modification or enforcement has participated or attempted to participate, in good faith, in mediation to resolve the dispute that is the basis of the modification or enforcement motion. The participation or attempted participation in mediation must have occurred prior to filing the motion for modification or enforcement. The court may require a person filing a motion under this subsection to pay a reasonable filing fee.]

(4) If an Indian child is involved, the permanent guardianship must be in compliance with the Indian Child Welfare Act. Notwithstanding subsection (3) of this section, the facts supporting any finding made to establish a permanent guardianship for an Indian child, including the finding that continued custody by the parents or Indian custodian would result in serious emotional or physical harm to the child, must be established beyond a reasonable doubt.

[(8) A parent may not petition the court to terminate a guardianship once the guardianship is granted under this section.]

(5) Unless vacated under section 4 of this 2003 Act, a guardianship established under this section continues as long as the child is subject to the court’s jurisdiction as provided in ORS 419B.328.

SECTION 7. Section 8 of this 2003 Act is added to and made a part of ORS chapter 419A.

SECTION 8. (1) Subject to the availability of funds and upon request of a court under section 3 of this 2003 Act, a local citizen review board shall review the case of a child for whom a guardian has been appointed under section 2 of this 2003 Act or ORS 419B.365. In the request for review, the court shall notify the local citizen review board of the names and addresses of the parties.

(2) The review shall take place within 45 days after the local citizen review board receives the request for review by the court.

(3) The local citizen review board shall send notice of the review to all parties.

(4) The Chief Justice of the Supreme Court, in consultation with the Supreme Court, shall adopt rules under ORS 1.002 that may include any procedures for the administration of the local citizen review board program regarding:

(a) The time, content and manner in which the guardian must provide reports to the local citizen review board; and

(b) The process to be followed in conducting the reviews.

(5) The local citizen review board shall forward findings and recommendations generated at a review under subsection (1) of this section to the court and all parties. The court shall cause the findings and recommendations to become part of the juvenile court file for consideration by the juvenile court judge. The court shall give the local citizen review board written notice if the court modifies, alters or takes action on a case as a result of the recommendations of the local citizen review board.

SECTION 9. ORS 419A.255 is amended to read:

419A.255. (1) The clerk of the court shall keep a record of each case, including therein the summons and other process, the petition and all other papers in the nature of pleadings, motions, orders of the court and other papers filed with the court, but excluding reports and other material relating to the child’s or youth’s history and prognosis. The record of the case shall be withheld from public inspection but shall be open to inspection by the child or youth, parent, guardian, court appointed special advocate, surrogate or a person allowed to intervene in a proceeding involving the child or youth under ORS 109.119 (1), and their attorneys. The attorneys are entitled to copies of the record of the case.

(2) Reports and other material relating to the child’s or youth’s history and prognosis are privileged and, except at the request of the child or youth, shall not be disclosed directly or indirectly to anyone other than the judge of the juvenile court, those acting under the judge’s direction, service providers in the case and the attorneys of record for the child or youth or the child’s or youth’s parent, guardian, court appointed special advocate, surrogate or person allowed to intervene in a proceeding involving the child or youth under ORS 109.119 (1). Reports and other material relating to a youth offender’s history and prognosis in cases under ORS 419C.005 may be disclosed to the superintendent of the school district in which the youth offender resides. The service providers in the case, school superintendents and attorneys are entitled to examine and obtain copies of any reports or other material relating to the child’s or youth’s history and prognosis. Any service provider in the case, school superintendent or attorney who examines or obtains copies of such reports or materials is responsible for preserving their confidentiality. A service provider or school superintendent who obtains copies of such reports or materials shall return the copies to the court upon the conclusion of the service provider’s or superintendent’s involvement in the case.

(3) Except as otherwise provided in subsection (7) of this section, no information appearing in the record of the case or in reports or other material relating to the child’s or youth’s history or prognosis may be disclosed to any person not described in subsection (2) of this section without the consent of the court, except for purposes of evaluating the child’s or youth’s eligibility for special education as provided in ORS chapter 343, and no such information may be used in evidence in any proceeding to establish criminal or civil liability against the child or youth, whether such proceeding occurs after the child or youth has reached 18 years of age or otherwise, except for the following purposes:

(a) In connection with a presentence investigation after the guilt of the youth has been admitted or established in a criminal court.

(b) In connection with a proceeding in another juvenile court concerning the child or youth or an appeal from the juvenile court.

(4) If the court finds that the child or youth or parent is without financial means to purchase all or a necessary part of the transcript of the evidence or proceedings, the court shall order upon motion the transcript or part thereof to be furnished. The transcript or part thereof furnished under this subsection shall be paid for in the same manner as furnished transcripts are paid for in criminal cases.

(5) Notwithstanding any other provision of law, the following are not confidential and not exempt from disclosure:

(a) The name and date of birth of the youth;

(b) The basis for the juvenile court’s jurisdiction over the youth;

(d) The act alleged in the petition that if committed by an adult would constitute a crime if jurisdiction is based on ORS 419C.005;

(e) That portion of the juvenile court order providing for the legal disposition of the youth when jurisdiction is based on ORS 419C.005;

(f) The names and addresses of the youth’s parents or guardians; and

(g) The register described in ORS 7.020 when jurisdiction is based on ORS 419C.005.

(6) Notwithstanding any other provision of law, when a youth has been taken into custody under ORS 419C.080, the following information shall be disclosed unless, and only for so long as, there is a clear need to delay disclosure in the course of a specific investigation, including the need to protect the complaining party or the victim:

(a) The youth’s name and age and whether the youth is employed or in school;

(b) The youth offense for which the youth was taken into custody;

(c) The name and age of the adult complaining party and the adult victim, unless the disclosure of such information is otherwise prohibited or restricted;

(d) The identity of the investigating and arresting agency; and

(e) The time and place that the youth was taken into custody and whether there was resistance, pursuit or a weapon used in taking the youth into custody.

(7)(a) Information contained in reports and other materials relating to a child’s or youth’s history and prognosis that, in the professional judgment of the juvenile counselor, caseworker, school superintendent, teacher or detention worker to whom the information for the reports or other materials has been provided, indicates a clear and immediate danger to another person or to society shall be disclosed to the appropriate authority and the person or entity who is in danger from the child or youth.

(b) An agency or a person who discloses information under paragraph (a) of this subsection shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed for making the disclosure.

(c) Nothing in this subsection affects the provisions of ORS 146.750, 146.760, 419B.035, 419B.040 and 419B.045. The disclosure of information under this section does not make the information admissible in any court or administrative proceeding if it is not otherwise admissible.

(8) A county juvenile department is the agency responsible for disclosing youth offender records and records relating to nonadjudicated youths if the records are subject to disclosure.

(9) Nothing in this section prohibits a guardian appointed under section 2 of this 2003 Act or ORS 419B.365 from disclosing or providing copies of letters of guardianship when so required to fulfill the duties of a guardian.

SECTION 10. ORS 419B.370 is amended to read:

419B.370. (1) When the court grants legal custody to the Department of Human Services, it may also grant guardianship of the child to the department, to remain in effect solely while the child remains in the legal custody of the department.

(2) [In all other cases] When the court grants legal custody to a private institution or agency or to a suitable person or entity, the court may grant guardianship of the child to [a] the private institution or agency to which the child is committed or to [some] the suitable person or entity if it appears necessary to do so in the interests of the child.

(3) Unless guardianship is granted as provided in subsection (1) or (2) of this section, the court as an incident of its wardship over the child [shall have] has the duties and authority of the guardian as provided in ORS 419B.376 and 419B.379.

Approved by the Governor June 6, 2003

Filed in the office of Secretary of State June 9, 2003

Effective date January 1, 2004

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