ORS 419B.366
Guardianship

motion
procedure

Text
Annotations 5

(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)

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)

Intentionally left blank —Ed.

(a)

The court may grant the 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), the court:

(i)

Finds, by clear and convincing evidence, including the testimony of one or more qualified expert witnesses under ORS 419B.642 (Qualified expert witness), 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)

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

(iii)

Finds that the placement of the Indian child complies with the placement preferences as described in ORS 419B.654 (Placement preferences) (1) or, if not, upon the moving party’s motion under ORS 419B.654 (Placement preferences) (3), the court finds, by clear and convincing evidence, that there is good cause to depart from the placement preferences.

(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).

(4)

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

(5)

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

(a)

The ward cannot safely return to a parent within a reasonable time;

(b)

Adoption is not an appropriate plan for the ward;

(c)

The proposed guardian is suitable to meet the needs of the ward and is willing to accept the duties and authority of a guardian; and

(d)

Guardianship is in the ward’s best interests. In determining whether guardianship is in the ward’s best interests, the court shall consider the ward’s wishes.

(6)

Unless vacated pursuant to 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). [2003 c.229 §2; 2007 c.333 §2; 2020 s.s.1 c.14 §44; 2021 c.398 §61]

Source: Section 419B.366 — Guardianship; motion; procedure, https://www.oregonlegislature.gov/bills_laws/ors/ors419B.html.

Notes of Decisions

Hearing for purpose of determining guardianship is independent from permanency hearing. Department of Human Services v. K.H., 256 Or App 242, 301 P3d 427 (2013), Sup Ct review denied

Hearing for purpose of determining guardianship must be fundamentally fair and provide opportunity to be heard at meaningful time and in meaningful manner. Department of Human Services v. K.H., 256 Or App 242, 301 P3d 427 (2013), Sup Ct review denied

Once permanency plan is invalidated, court must set aside ward’s guardianship without regard to ORS 419B.368 test until new permanency plan is approved. In re: D.J.B., 289 Or App 88, 407 P3d 972 (2017)

Where juvenile court established general guardianship over child, court may vacate guardianship under ORS 419B.368 but, if not so vacated, guardianship continues only as long as child is subject to court’s jurisdiction, which could end if facts giving rise to jurisdiction no longer exist. Dept. of Human Services v. J.C., 365 Or 223, 444 P3d 1098 (2019)

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.366 Guardianship

(1)

(2)

(3)

(4)

(a)

(A)

(B)

(C)

(i)

(ii)

(iii)

(b)

(c)

(4)

(5)

(a)

(b)

(c)

(d)

(6)

Notes of Decisions

ORS 419B.366
Guardianship