Chapter 333
AN ACT
SB 277
Relating to juveniles; amending ORS 419A.109, 419B.365, 419B.366,
419B.367, 419B.368 and 419B.369.
Be It Enacted by the People of
the State of
SECTION 1. 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) The grounds for
granting a permanent guardianship are the same as those for termination of
parental rights.
(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 ward that the parent never have
physical custody of the ward but that other parental rights and duties should
not be terminated.
(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 Indian
child, must be established beyond a reasonable doubt.
(5) Unless vacated under
ORS 419B.368, a guardianship established under this section continues as long
as the ward is subject to the court’s jurisdiction as provided in ORS 419B.328.
SECTION 2. ORS 419B.366 is amended to read:
419B.366. (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 Indian
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] ward cannot safely return
to a parent within a reasonable time;
(b) Adoption is not an appropriate
plan for the [child] ward;
(c) The proposed
guardian is suitable to meet the needs of the [child] ward and is willing to accept the duties and
authority of a guardian; and
(d) Guardianship is in
the [child’s] ward’s best
interests. In determining whether guardianship is in the [child’s] ward’s best interests, the court shall consider the
[child’s] ward’s wishes.
(6) Unless vacated
pursuant to ORS 419B.368, a guardianship established under this section
continues as long as the [child] ward
is subject to the court’s jurisdiction as provided in ORS 419B.328.
SECTION 3. ORS 419B.367 is amended to read:
419B.367. (1) Upon granting a motion for guardianship under ORS 419B.366
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
) LETTERS OF
County of ___ ) GUARDIANSHIP
BY THESE LETTERS OF
GUARDIANSHIP be informed:
That on ______ (month) ___
(day), 2___, the ______ Court, ______ County, State of
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] ward, if the court
determines that visitation or contact is in the [child’s] ward’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] ward’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;
(B) Subject to the
availability of funds, appoint a court visitor and require the visitor to file
a report with the court; or
(C) Conduct a court
review.
(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;
(B) Subject to the
availability of funds, appoint a court visitor and require the visitor to file
a report with the court; or
(C) Conduct a court
review.
(4) Except as otherwise
limited by the court, a person appointed guardian has legal custody of the [child] ward 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] ward solely by reason of being appointed guardian.
SECTION 4. ORS 419B.368 is amended to read:
419B.368. (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] ward’s best interests.
(3) The court may vacate
a guardianship order, return the [child]
ward 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] ward’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] ward.
(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] ward 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]
ward’s best interests to modify or vacate a guardianship, the court shall
consider, but is not limited to considering:
(a) The [child’s] ward’s emotional and
developmental needs;
(b) The [child’s] ward’s need to maintain
existing attachments and relationships and to form attachments and
relationships, including those with the birth family;
(c) The [child’s] ward’s health and
safety; and
(d) The [child’s] ward’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. ORS 419B.369 is amended to read:
419B.369. (1) When a [child] ward 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]
ward’s best interests. The department shall adopt rules necessary to carry
out the duties imposed by this subsection.
(2) When a [child] ward 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] ward’s best interests.
SECTION 6. ORS 419A.109 is amended to read:
419A.109. (1) Subject to
the availability of funds and upon request of a court under ORS 419B.367, a
local citizen review board shall review the case of a [child] ward for whom a guardian has been appointed under ORS
419B.365 or 419B.366. 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, or as soon as is practicable given the schedule of the
local citizen review board, 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.
Approved by the Governor June 11, 2007
Filed in the office of Secretary of State June 13, 2007
Effective date January 1, 2008
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