2017 ORS 419B.476¹
Conduct of hearing
  • court determinations
  • orders

(1) A permanency hearing shall be conducted in the manner provided in ORS 418.312 (When transfer of custody not required), 419B.310 (Conduct of hearings), 419B.812 (Issuance of summons) to 419B.839 (Required and discretionary summons) and 419B.908 (Witness fees), except that the court may receive testimony and reports as provided in ORS 419B.325 (Disposition required).

(2) At a permanency hearing the court shall:

(a) If the case plan at the time of the hearing is to reunify the family, determine whether the Department of Human Services has made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the ward to safely return home and whether the parent has made sufficient progress to make it possible for the ward to safely return home. In making its determination, the court shall consider the ward’s health and safety the paramount concerns.

(b) If the case plan at the time of the hearing is something other than to reunify the family, determine whether the department has made reasonable efforts to place the ward in a timely manner in accordance with the plan, including, if appropriate, reasonable efforts to place the ward through an interstate placement, and to complete the steps necessary to finalize the permanent placement.

(c) If the case plan at the time of the hearing is something other than to reunify the family, determine whether the department has considered permanent placement options for the ward, including, if appropriate, whether the department has considered both permanent in-state placement options and permanent interstate placement options for the ward.

(d) Make the findings of fact under ORS 419B.449 (Review hearing by court) (3).

(3) When the ward is 14 years of age or older, in addition to making the determination required by subsection (2) of this section, at a permanency hearing the court shall review the comprehensive plan for the ward’s transition to successful adulthood and determine and make findings as to:

(a) Whether the plan is adequate to ensure the ward’s transition to successful adulthood;

(b) Whether the department has offered appropriate services pursuant to the plan; and

(c) Whether the department has involved the ward in the development of the plan.

(4) At a permanency hearing the court may:

(a) If the case plan changed during the period since the last review by a local citizen review board or court hearing and a plan to reunify the family was in effect for any part of that period, determine whether the department has made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the ward to safely return home. In making its determination, the court shall consider the ward’s health and safety the paramount concerns;

(b) If the case plan changed during the period since the last review by a local citizen review board or court hearing and a plan other than to reunify the family was in effect for any part of that period, determine whether the department has made reasonable efforts to place the ward in a timely manner in accordance with the plan, including, if appropriate, placement of the ward through an interstate placement, and to complete the steps necessary to finalize the permanent placement;

(c) If the court determines that further efforts will make it possible for the ward to safely return home within a reasonable time, order that the parents participate in specific services for a specific period of time and make specific progress within that period of time;

(d) Determine the adequacy and compliance with the case plan and the case progress report;

(e) Review the efforts made by the department to develop the concurrent permanent plan, including but not limited to identification of appropriate permanent in-state placement options and appropriate permanent interstate placement options and, if adoption is the concurrent case plan, identification and selection of a suitable adoptive placement for the ward;

(f) Order the department to develop or expand the case plan or concurrent permanent plan and provide a case progress report to the court and other parties within 10 days after the permanency hearing;

(g) Order the department or agency to modify the care, placement and supervision of the ward;

(h) Order the local citizen review board to review the status of the ward prior to the next court hearing; or

(i) Set another court hearing at a later date.

(5) The court shall enter an order within 20 days after the permanency hearing. In addition to any determinations or orders the court may make under subsection (4) of this section, the order shall include the following:

(a) The court’s determinations required under subsections (2) and (3) of this section, including a brief description of the efforts the department has made with regard to the case plan in effect at the time of the permanency hearing.

(b) The court’s determination of the permanency plan for the ward that includes whether and, if applicable, when:

(A) The ward will be returned to the parent;

(B) The ward will be placed for adoption, and a petition for termination of parental rights will be filed;

(C) The ward will be referred for establishment of legal guardianship;

(D) The ward will be placed with a fit and willing relative; or

(E) If the ward is 16 years of age or older, the ward will be placed in another planned permanent living arrangement.

(c) If the court determines that the permanency plan for the ward should be to return home because further efforts will make it possible for the ward to safely return home within a reasonable time, the court’s determination of the services in which the parents are required to participate, the progress the parents are required to make and the period of time within which the specified progress must be made.

(d) If the court determines that the permanency plan for the ward should be adoption, the court’s determination of whether one of the circumstances in ORS 419B.498 (Termination of parental rights) (2) is applicable.

(e) If the court determines that the permanency plan for the ward should be establishment of a legal guardianship, the court’s determination of why neither placement with parents nor adoption is appropriate.

(f) If the court determines that the permanency plan for a ward should be placement with a fit and willing relative, the court’s determination of why placement with the ward’s parents, or for adoption, or placement with a legal guardian, is not appropriate.

(g) If the court determines that the permanency plan for a ward 16 years of age or older should be another planned permanent living arrangement, the court’s determinations:

(A) Why another planned permanent living arrangement is in the ward’s best interests and a compelling reason, that must be documented by the department, why it would not be in the best interests of the ward to be returned home, placed for adoption, placed with a legal guardian or placed with a fit and willing relative; and

(B) That the department has taken steps to ensure that:

(i) The ward’s substitute care provider is following the reasonable and prudent parent standard; and

(ii) The ward has regular, ongoing opportunities to engage in age-appropriate or developmentally appropriate activities, including consultation with the ward in an age-appropriate manner about the opportunities the ward has to participate in the activities.

(h) If the current placement is not expected to be permanent, the court’s projected timetable for return home or for placement in another planned permanent living arrangement. If the timetable set forth by the court is not met, the department shall promptly notify the court and parties.

(i) If an Indian child is involved, the tribal affiliation of the ward.

(j) If the ward has been placed in an interstate placement, the court’s determination of whether the interstate placement continues to be appropriate and in the best interests of the ward.

(6) In making the determinations under subsection (5)(g) of this section, the court shall ask the ward about the ward’s desired permanency outcome.

(7) If an Indian child is involved, the court shall follow the placement preference established by the Indian Child Welfare Act.

(8) Any final decision of the court made pursuant to the permanency hearing is appealable under ORS 419A.200 (Who may appeal). On appeal of a final decision of the court under this subsection, the court’s finding, if any, under ORS 419B.340 (Reasonable or active efforts determination) (5) that the department is not required to make reasonable efforts to make it possible for the ward to safely return home is an interlocutory order to which a party may assign error. [1993 c.33 §137; 1993 c.546 §128; 1999 c.568 §2; 1999 c.859 §15; 2001 c.480 §9; 2001 c.622 §50; 2001 c.686 §16; 2001 c.910 §5; 2003 c.396 §81; 2003 c.544 §1a; 2007 c.611 §8; 2007 c.806 §11; 2015 c.254 §5]

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

Where incarcera­tion, immigra­tion deten­tion or other changes relevant to reunifica­tion occur during assess­ment period, Depart­ment of Human Services “reasonable efforts” require inquiry into, and arrange­ment for, services available under circumstances. State ex rel Dept. of Human Services v. H.S.C., 218 Or App 415, 180 P3d 39 (2008)

Peti­tioner is not re­quired to preserve error in order to challenge lack of statutorily re­quired findings of fact in court order. State ex rel Depart­ment of Human Services v. M.A., 227 Or App 172, 205 P3d 36 (2009)

Juvenile court must expressly explain reasons for making change in permanency plan. Depart­ment of Human Services v. L.B., 246 Or App 169, 265 P3d 42 (2011)

Juvenile court’s failure to make findings re­quired by ORS 419B.476 (Conduct of hearing) (5)(b)(B) does not render judg­ment defective on its face; findings re­gard­ing when ward will be placed for adop­tion and when peti­tion for termina­tion of rights will be filed does not reflect on substance of juvenile court’s permanency determina­tion or reflect bases for court’s reasoning or ultimate decision. Dept. of Human Services v. T.R., 251 Or App 6, 282 P3d 969 (2012), Sup Ct review denied

Juvenile court has authority to correct error in permanency judg­ment more than 20 days after permanency hearing. Depart­ment of Human Services v. A.J.M., 256 Or App 547, 301 P3d 962 (2013), Sup Ct review denied

When read together with ORS 419B.498 (Termination of parental rights), juvenile court must first determine that no compelling reasons exist to not terminate parental rights before changing child’s permanency plan from reunifica­tion to adop­tion. Dept. of Human Services v. S. J. M., 283 Or App 367, 388 P3d 417 (2017), Sup Ct review allowed

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.