72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
Senate Bill 70
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim Committee on
Judiciary for Oregon Law Commission)
CHAPTER ................
AN ACT
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
Enrolled Senate Bill 70 (SB 70-A) Page 1
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: + }
________________________________________________________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
State of Ore)on,
) LETTERS OF
County of __
) GUARDIANSHIP + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + 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 + }
________________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + (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:
Enrolled Senate Bill 70 (SB 70-A) Page 2
(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
Enrolled Senate Bill 70 (SB 70-A) Page 3
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
Enrolled Senate Bill 70 (SB 70-A) Page 4
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).
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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;
(c) The date, time and place of any juvenile court proceeding
in which the youth is involved;
(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
Enrolled Senate Bill 70 (SB 70-A) Page 6
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.
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Enrolled Senate Bill 70 (SB 70-A) Page 7
Passed by Senate April 8, 2003
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 16, 2003
...........................................................
Speaker of House
Enrolled Senate Bill 70 (SB 70-A) Page 8
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled Senate Bill 70 (SB 70-A) Page 9