ORS 419B.365
Permanent guardianship

petition
when filed
procedure

Text
Annotations 2

(1)

At any time following establishment of jurisdiction and wardship under ORS 419B.100 (Jurisdiction), but prior to filing of a petition under ORS 419B.500 (Termination of parental rights generally), or after dismissal of a petition filed under ORS 419B.500 (Termination of parental rights generally) 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 (Parties to proceedings), 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)

Upon the filing of a motion to establish guardianship under this section, the court shall make a finding, subject to the procedures under ORS 419B.636 (Inquiry to determine whether child is Indian child) (4), regarding whether there is reason to know that the child is an Indian child.

(4)

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.

(5)

Intentionally left blank —Ed.

(a)

Notwithstanding subsection (4) of this section, the court may grant the permanent guardianship of an Indian child only:

(A)

If the court has offered the parties the opportunity to participate in mediation as required under ORS 419B.517 (Mediation to be encouraged);

(B)

If requested by the tribe, an agreement is in place that requires the proposed guardian to maintain connection between the Indian child and the Indian child’s tribe; and

(C)

If after inquiry as required under ORS 419B.636 (Inquiry to determine whether child is Indian child) (2) and notice as required under ORS 419B.639 (Notice to tribe in emergency proceeding) (2), and in addition to any other findings required for the termination of parental rights under ORS 419B.500 (Termination of parental rights generally) to 419B.524 (Effect of termination order), the court finds:

(i)

That evidence, including the testimony of one or more qualified expert witnesses under ORS 419B.642 (Qualified expert witness), establishes beyond a reasonable doubt that the continued custody of the Indian child by the child’s parent or custody by the child’s Indian custodian is likely to result in serious emotional or physical damage to the Indian child;

(ii)

That active efforts under ORS 419B.645 (Active efforts) to reunite the Indian family did not eliminate the necessity for permanent guardianship based on serious emotional or physical damage to the Indian child; and

(iii)

That the placement of the Indian child complies with the placement preferences described in ORS 419B.654 (Placement preferences) (1).

(b)

The evidence under paragraph (a) of this subsection must show a causal relationship between the particular conditions in the Indian child’s home and the likelihood that custody or continued custody of the Indian child will result in serious emotional or physical damage to the particular Indian child who is the subject of the child custody proceeding, as defined in ORS 419B.603 (Definitions). Evidence that shows the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse or nonconforming social behavior does not, by itself, establish a causal relationship as required by this paragraph.

(c)

As used in this subsection, “custody” and “continued custody” have the meanings described in ORS 419B.606 (Custody).

(6)

Unless vacated under ORS 419B.368 (Review, modification or vacation of guardianship order), 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 (Ward of the court). [1997 c.873 §3; 1999 c.59 §119; 1999 c.859 §23; 2003 c.229 §6; 2003 c.396 §63a; 2007 c.333 §1; 2020 s.s.1 c.14 §43; 2021 c.398 §60]

Source: Section 419B.365 — Permanent guardianship; petition; when filed; procedure, https://www.oregonlegislature.gov/bills_laws/ors/ors419B.html.

Notes of Decisions

Juvenile court initiating guardianship must proceed under guardianship statute found in juvenile code, not guardianship statute under probate code. Kelley v. Gibson, 184 Or App 343, 56 P3d 925 (2002)

Court could not under probate code appoint grandfather as guardian for child of which juvenile court had taken wardship, because guardianship proceedings under juvenile dependency code are exclusive means for establishing guardianship for ward within juvenile court’s exclusive dependency jurisdiction and probate code does not provide alternative means for establishing guardianship. Keffer v. A.R.M., 313 Or App 503, 497 P3d 781 (2021)

California:	Codes
Colorado:	C.R.S.
Nevada:	NRS
New York:	Laws
Oregon:	OAR, ORS
Texas:	Statutes
World:	Rome Statute, International Dictionary

ORS 419B.365 Permanent guardianship

(1)

(2)

(3)

(4)

(a)

(b)

(5)

(a)

(A)

(B)

(C)

(i)

(ii)

(iii)

(b)

(c)

(6)

Notes of Decisions

ORS 419B.365
Permanent guardianship