Juvenile Code: Dependency

ORS 419B.231
Appointment

  • hearing
  • findings


(1)

In a proceeding under this chapter, including a proceeding for the termination of parental rights, the court, on its own motion or on the written or oral motion of a party in the proceeding, may appoint a guardian ad litem for a parent involved in the proceeding as provided in this section.

(2)

The court shall conduct a hearing to determine whether to appoint a guardian ad litem in a proceeding under this chapter if:

(a)

A party moves for the appointment and the affidavit or oral representations submitted in support of the motion state facts that, if proved at a hearing under this section, would establish that it is more probable than not that:

(A)

Due to the parent’s mental or physical disability or impairment, the parent lacks substantial capacity either to understand the nature and consequences of the proceeding or to give direction and assistance to the parent’s attorney on decisions the parent must make in the proceeding; and

(B)

The appointment of a guardian ad litem is necessary to protect the parent’s rights in the proceeding during the period of the parent’s disability or impairment; or

(b)

The court has a reasonable belief that:

(A)

Due to the parent’s mental or physical disability or impairment, the parent lacks substantial capacity either to understand the nature and consequences of the proceeding or to give direction and assistance to the parent’s attorney on decisions the parent must make in the proceeding; and

(B)

The appointment of a guardian ad litem is necessary to protect the parent’s rights in the proceeding during the period of the parent’s disability or impairment.

(3)

(a) A court may not appoint a guardian ad litem under this section unless the court conducts a hearing. At the hearing, the court may receive testimony, reports and other evidence without regard to whether the evidence is admissible under ORS 40.010 (Rule 100. Short title) to 40.210 (Rule 412. Sex offense cases) and 40.310 (Rule 601. General rule of competency) to 40.585 (Rule 1008. Functions of court and jury) if the evidence is:

(A)

Relevant to the findings required under this section; and

(B)

Of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs.

(b)

For purposes of this subsection, evidence is relevant if it is “relevant evidence” as defined in ORS 40.150 (Rule 401. Definition of “relevant evidence”).

(4)

A court may not appoint a guardian ad litem for a parent unless the court finds by a preponderance of the evidence presented at the hearing that:

(a)

Due to the parent’s mental or physical disability or impairment, the parent lacks substantial capacity either to understand the nature and consequences of the proceeding or to give direction and assistance to the parent’s attorney on decisions the parent must make in the proceeding; and

(b)

The appointment of a guardian ad litem is necessary to protect the parent’s rights in the proceeding during the period of the parent’s disability or impairment.

(5)

The fact that a guardian ad litem has been appointed under this section may not be used as evidence of mental or emotional illness in any juvenile court proceeding, any civil commitment proceeding or any other civil proceeding. [2005 c.450 §2]
§§ 419B.500 to 419B.524

Notes of Decisions

Under Former Similar Statutes

Due process does not require the appointment of "independent counsel" to represent the child in every adoption or termination of parental rights proceeding. F. v. C., 24 Or App 601, 547 P2d 175 (1976)

When second termination of parental rights proceeding was not itself barred, proof was not limited by res judicata or collateral estoppel principles to facts or evidence which was not considered in or which came in to being after first proceeding. State ex rel Juvenile Dept. v. Newman, 49 Or App 221, 619 P2d 901 (1980), Sup Ct review denied

Chapter 419B

Notes of Decisions

Due process rights of parents are always implicated in construction and application of provisions of this chapter. Department of Human Services v. J.R.F., 351 Or 570, 273 P3d 87 (2012)


Source

Last accessed
Jun. 26, 2021