2017 ORS 419B.366¹
  • motion
  • procedure

(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 (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]

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

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

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)

1 Legislative Counsel Committee, CHAPTER 419B—Juvenile Code: Dependency, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors419B.­html (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 419B, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano419B.­html (2017) (last ac­cessed Mar. 30, 2018).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.