419B.365
Permanent guardianship; petition; when filed; procedure. (1) At any time following
establishment of jurisdiction and wardship under ORS 419B.100, but prior to the
filing of a petition under ORS 419B.500, or after dismissal of a petition filed
under ORS 419B.500 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, 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 (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)(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;
(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 (2) and notice as required under ORS
419B.639 (2), and in addition to any other findings required for the
termination of parental rights under ORS 419B.500 to 419B.524, the court finds:
(i) That
evidence, including the testimony of one or more qualified expert witnesses
under ORS 419B.642, 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 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 (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. 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.
(6) A
guardianship established under this section continues unless vacated under ORS
419B.368 or the ward becomes 21 years of age. [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; 2023 c.125 §2]
Notes of Decisions
Cited in
51
cases (
25 in the last 5 years), 2000–2026 · leading case:
Kelley v. Gibson, 56 P.3d 925 (Or. Ct. App. 2002).
Kelley v. Gibson, 56 P.3d 925 (Or. Ct. App. 2002).
· cites it 18× “At oral argument, we requested supplemental briefing regarding ORS 419B.365 (1997), which provided for permanent guardianship under the juvenile code.”
Dep't of Human Servs. v. T. L., 369 P.3d 1159 (Or. 2016).
· cites it 2× “” ORS 419B.365(3). Second, the court may establish what is referred to as a “durable guardianship,” if the court finds by a preponderance of the evidence that the ward cannot safely be returned home “within a reasonable time,” 8 that “adoption is not an appropriate plan for the…”
Keffer v. A. R. M., 497 P.3d 781 (Or. Ct. App. 2021).
· cites it 8× “The parents’ primary challenge in this appeal is that the court lacked authority to appoint grandfather as Cite as 313 Or App 503 (2021) 509 guardian under the probate code, because the guardian- ship provisions in the juvenile code provide the exclusive means to establish a…”
Dep't of Human Servs. v. S. M., 323 P.3d 947 (Or. 2014).
· cites it 3× “ORS 419B.365. Second, the court may establish what is sometimes referred to as a “durable” guardianship if the court finds by a preponderance of the evidence that the ward cannot safely be returned home within a reasonable time, that adoption is not an appropriate plan for the…”
Dep't of Human Servs. v. J. G., 317 P.3d 936 (Or. Ct. App. 2014).
· cites it 2× “That subsection provides that “a parent may not move the court to vacate a guardianship once a guardianship is granted under ORS 419B.365.” The guardianship in this case, however, was established under ORS 419B.”
Dep't of Human Servs. v. J. C. (In re A. M.), 444 P.3d 1098 (Or. 2019).
· cites it 5× “366 differs from a "permanent guardianship," which the juvenile court may establish pursuant to ORS 419B.365. As relevant here, to establish a permanent guardianship, the juvenile court must determine, by clear and convincing evidence, that a ground for termination of the…”
Dep't of Human Servs. v. N. S., 265 P.3d 792 (Or. Ct. App. 2011).
“366 (setting forth the process for establishing “durable” guardianships) and not ORS 419B.365 (permanent guardianships), and the guardianship order allows for contact between mother and child at the discretion of child’s guardians.”
In Re the Marriage of Winczewski, 72 P.3d 1012 (Or. Ct. App. 2003).
· cites it 2× “, ORS 419B.365(4) (providing for permanent guardianship on the same grounds as required for the termination of parental rights); ORS 419B.”
Dept. of Human Servs. v. M. H., 473 P.3d 1152 (Or. Ct. App. 2020).
“ORS 419B.365(2), (3). Thus, a permanent guardianship is not a temporary arrangement and, further, a parent cannot seek to vacate it.”
Dep't of Human Servs. v. A. S., 380 P.3d 319 (Multnomah Cty. Cir. Ct., O.R. 2016).
· cites it 2× “ORS 419B.365. Second, the court may establish what is sometimes referred to as a ‘durable’ guardianship if the court finds by a preponderance of the evidence that the ward cannot safely be returned home within a reasonable time, that adoption is not an appropriate plan for the…”
Dept. of Human Servs. v. A. D. J., 300 Or. App. 427 (Or. Ct. App. 2019).
· cites it 4× “ORS 419B.365. Second, the court may establish what is sometimes referred to as a ‘durable’ guardianship if the court finds by a preponderance of the evidence that the ward cannot safely be returned home within a reasonable time, that adoption is not an appropriate plan for the…”
— Or. Rev. Stat. § 419B.365(1) — 4 cases
Kelley v. Gibson, 56 P.3d 925 (Or. Ct. App. 2002).
“At oral argument, we requested supplemental briefing regarding ORS 419B.365 (1997), which provided for permanent guardianship under the juvenile code.”
— Or. Rev. Stat. § 419B.365(2) — 20 cases
Dept. of Human Servs. v. M. H., 473 P.3d 1152 (Or. Ct. App. 2020).
“ORS 419B.365(2), (3). Thus, a permanent guardianship is not a temporary arrangement and, further, a parent cannot seek to vacate it.”
Dep't of Human Servs. v. S. M., 323 P.3d 947 (Or. 2014).
“ORS 419B.365. Second, the court may establish what is sometimes referred to as a “durable” guardianship if the court finds by a preponderance of the evidence that the ward cannot safely be returned home within a reasonable time, that adoption is not an appropriate plan for the…”
Dep't of Human Servs. v. A. S., 380 P.3d 319 (Multnomah Cty. Cir. Ct., O.R. 2016).
“ORS 419B.365. Second, the court may establish what is sometimes referred to as a ‘durable’ guardianship if the court finds by a preponderance of the evidence that the ward cannot safely be returned home within a reasonable time, that adoption is not an appropriate plan for the…”
Kelley v. Gibson, 56 P.3d 925 (Or. Ct. App. 2002).
“At oral argument, we requested supplemental briefing regarding ORS 419B.365 (1997), which provided for permanent guardianship under the juvenile code.”
Dep't of Human Servs. v. J. C. (In re A. M.), 444 P.3d 1098 (Or. 2019).
“366 differs from a "permanent guardianship," which the juvenile court may establish pursuant to ORS 419B.365. As relevant here, to establish a permanent guardianship, the juvenile court must determine, by clear and convincing evidence, that a ground for termination of the…”
— Or. Rev. Stat. § 419B.365(3) — 3 cases
Dep't of Human Servs. v. T. L., 369 P.3d 1159 (Or. 2016).
“” ORS 419B.365(3). Second, the court may establish what is referred to as a “durable guardianship,” if the court finds by a preponderance of the evidence that the ward cannot safely be returned home “within a reasonable time,” 8 that “adoption is not an appropriate plan for the…”
— Or. Rev. Stat. § 419B.365(3)(b) — 1 case
— Or. Rev. Stat. § 419B.365(4) — 9 cases
In Re the Marriage of Winczewski, 72 P.3d 1012 (Or. Ct. App. 2003).
“, ORS 419B.365(4) (providing for permanent guardianship on the same grounds as required for the termination of parental rights); ORS 419B.”
Kelley v. Gibson, 56 P.3d 925 (Or. Ct. App. 2002).
“At oral argument, we requested supplemental briefing regarding ORS 419B.365 (1997), which provided for permanent guardianship under the juvenile code.”
Keffer v. A. R. M., 497 P.3d 781 (Or. Ct. App. 2021).
“The parents’ primary challenge in this appeal is that the court lacked authority to appoint grandfather as Cite as 313 Or App 503 (2021) 509 guardian under the probate code, because the guardian- ship provisions in the juvenile code provide the exclusive means to establish a…”
— Or. Rev. Stat. § 419B.365(4)(a) — 1 case
— Or. Rev. Stat. § 419B.365(4)(b) — 1 case
— Or. Rev. Stat. § 419B.365(5) — 3 cases
Dep't of Human Servs. v. T. L., 369 P.3d 1159 (Or. 2016).
“” ORS 419B.365(3). Second, the court may establish what is referred to as a “durable guardianship,” if the court finds by a preponderance of the evidence that the ward cannot safely be returned home “within a reasonable time,” 8 that “adoption is not an appropriate plan for the…”
Dep't of Human Servs. v. J. C. (In re A. M.), 444 P.3d 1098 (Or. 2019).
“366 differs from a "permanent guardianship," which the juvenile court may establish pursuant to ORS 419B.365. As relevant here, to establish a permanent guardianship, the juvenile court must determine, by clear and convincing evidence, that a ground for termination of the…”
— Or. Rev. Stat. § 419B.365(6) — 1 case
— Or. Rev. Stat. § 419B.365(8) — 1 case
Kelley v. Gibson, 56 P.3d 925 (Or. Ct. App. 2002).
“At oral argument, we requested supplemental briefing regarding ORS 419B.365 (1997), which provided for permanent guardianship under the juvenile code.”
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