Bill Text: OR HB4023 | 2012 | Regular Session | Enrolled
Bill Title: Relating to guardianships in juvenile dependency proceedings; and declaring an emergency.
Sponsorship: Unknown
Status: (Passed) 2012-03-27 - Chapter 86, (2012 Laws): Effective date March 27, 2012. [HB4023 Detail]
Download: Oregon-2012-HB4023-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2012 Regular Session
Enrolled
House Bill 4023
Introduced and printed pursuant to House Rule 12.00. Presession
filed (at the request of House Interim Committee on Judiciary)
CHAPTER ................
AN ACT
Relating to guardianships in juvenile dependency proceedings;
creating new provisions; amending ORS 419B.116 and 419B.368;
and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) As used in this section:
(a) 'Community guardian' means a child-caring agency licensed
under ORS 418.205 to 418.310 that is filing a motion for
appointment as guardian of a ward under ORS 419B.366.
(b) 'Community guardianship' means a guardianship granted under
ORS 419B.366 to a community guardian.
(2) The court may appoint a community guardian and establish a
community guardianship of a ward under ORS 419B.366 when, in
addition to the requirements of ORS 419B.366:
(a) The ward is 16 years of age or older;
(b) The ward has spent three or more years in substitute care;
(c) The proposed community guardian has provided care or
services to the ward under ORS 418.205 to 418.310 in the 12
months immediately preceding the filing of the motion for
community guardianship;
(d) Except for another planned permanent living arrangement,
there is no other appropriate permanency plan for the ward under
ORS 419B.476 (5);
(e) The proposed community guardianship would include planning
and guidance for the ward's successful transition to independent
living, including needs and goals related to crisis intervention,
housing, physical and mental health, education, employment,
community connections and supportive relationships;
(f) The ward gives informed consent to the establishment of the
community guardianship; and
(g) The ward has access to court-appointed counsel under ORS
419B.195.
(3) Informed consent of the ward under subsection (2)(f) of
this section shall include:
(a) The ward's written consent to information provided in
writing to the ward by the court, the Department of Human
Services or the proposed community guardian about the
consequences of establishment of a community guardianship,
including any loss of benefits currently being received or that
may prospectively be provided to the ward if another permanency
plan were ordered; and
Enrolled House Bill 4023 (HB 4023-A) Page 1
(b) The ward's written acknowledgment that the ward cannot be
placed in substitute care in the legal custody of the Department
of Human Services after reaching 18 years of age. + }
SECTION 2. ORS 419B.116 is amended to read:
419B.116. (1)(a) As used in this section, 'caregiver
relationship' means a relationship between a person and a child
or ward:
(A) That has existed:
(i) For the 12 months immediately preceding the initiation of
the dependency proceeding;
(ii) For at least six months during the dependency proceeding;
or
(iii) For half of the child or ward's life if the child or ward
is less than six months of age;
(B) In which the person had physical custody of the child or
ward or resided in the same household as the child or ward;
(C) In which the person provided the child or ward on a daily
basis with the love, nurturing and other necessities required to
meet the child or ward's psychological and physical needs; and
(D) On which the child depended to meet the child or ward's
needs.
(b) 'Caregiver relationship' does not include a relationship
between a child or ward and a person who is the nonrelated foster
parent of the child or ward unless the relationship continued for
a period of at least 12 consecutive months.
(2) A person asserting that the person has a caregiver
relationship with a child or ward may file a motion for
intervention in a juvenile dependency proceeding.
(3) Filing a motion under subsection (2) of this section is the
sole means by which a person may become a party to a juvenile
dependency proceeding as an intervenor. An order granting
intervention under this section is exclusively for juvenile
dependency proceedings and does not confer standing or rights of
intervention in any other action. Intervention is not allowed in
proceedings under ORS 419B.500.
(4) A motion for intervention under subsection (2) of this
section must state:
(a) The person's relationship to the child or ward and the
person's involvement in the child or ward's life;
(b) The reason that intervention is sought;
(c) How the person's intervention is in the best interests of
the child or ward;
(d) Why the existing parties cannot adequately present the
case; and
(e) What specific relief is being sought.
(5)(a) If a party wishes to oppose a motion for intervention,
the party must file a written objection to the motion stating the
grounds for the objection no later than 21 days after the motion
is filed. If no written objection is filed as provided in this
paragraph, the court may grant the motion without a hearing.
Except as provided in paragraph (b) of this subsection, if a
written objection is filed as provided in this paragraph, the
court shall hold a hearing on the motion.
(b) If a motion for intervention does not state a prima facie
case as to the facts that must be proved under paragraph (c) of
this subsection, the court may deny the motion without a hearing.
(c) If the court holds a hearing on the motion for
intervention, the court may grant the motion for intervention if
the person moving to intervene in the case proves by a
preponderance of the evidence that:
Enrolled House Bill 4023 (HB 4023-A) Page 2
(A) A caregiver relationship exists between the person and the
child or ward;
(B) The intervention is in the best interests of the child or
ward;
(C) The reason for intervention and the specific relief sought
are consistent with the best interests of the child or ward; and
(D) The existing parties cannot adequately present the case.
(6) A person granted intervention is a party to the case and,
except as provided in subsection { - (10) - } { + (11) + } of
this section, may be granted such relief as the court determines
to be appropriate and in the best interests of the child or ward.
(7) A person who is not a party under ORS 419B.875 { + or a
person who intends to file a motion for appointment as a
community guardian under section 1 of this 2012 Act + }may seek
rights of limited participation by filing a written motion for
limited participation in a juvenile court proceeding. { + Except
as provided in subsection (9) of this section, + } the motion
must state:
(a) The reason that limited participation is being sought;
(b) How the person's limited participation is in the best
interests of the child or ward;
(c) Why the parties cannot adequately present the case; and
(d) The specific rights of limited participation that are being
sought.
(8)(a) If a party wishes to oppose a motion filed under
subsection (7) of this section, the party must file a written
objection to the motion stating the grounds for the objection no
later than 21 days after the motion is filed. If no written
objection is filed as provided in this paragraph, the court may
grant the motion without a hearing.
(b) If a motion seeking rights of limited participation does
not state a prima facie case as to the facts that must be proved
under paragraph (c) of this subsection, the court may deny the
motion without a hearing.
(c) If the court holds a hearing on the motion seeking rights
of limited participation, the court may grant the motion if the
person seeking rights of limited participation proves by a
preponderance of the evidence that:
(A) The person's limited participation is in the best interests
of the child or ward;
(B) The reason for limited participation and the specific
rights sought are consistent with the best interests of the child
or ward; and
(C) The parties cannot adequately present the case.
{ + (9) The requirements of subsections (7)(c) and (8)(c)(C)
of this section do not apply to a motion or court order seeking
or granting limited participation when the right of limited
participation sought and granted would be for the purpose of
establishing a community guardianship under section 1 of this
2012 Act. + }
{ - (9) - } { + (10) + } If the court grants a motion under
subsection (8) of this section, the court shall specify in the
order the rights of limited participation that are being granted.
{ - (10)(a) - } { + (11)(a) + } At any time, a person
granted intervention or a person granted rights of limited
participation may move to be considered a temporary placement or
visitation resource for the child or ward.
(b) At any time after a court has determined at a permanency
hearing that the permanent plan for the child or ward should be
something other than to return home, a person granted
Enrolled House Bill 4023 (HB 4023-A) Page 3
intervention may move to be considered the permanent placement
resource for the child or ward.
{ - (11) - } { + (12) + } The court may modify or set aside
any order granting intervention or rights of limited
participation as provided in ORS 419B.923.
SECTION 3. ORS 419B.368 is amended to read:
419B.368. (1) The court, on its own motion or upon the motion
of a party and after such hearing as the court may direct, may
review, modify or vacate a guardianship order.
(2) The court may modify a guardianship order if the court
determines to do so would be in the ward's best interests.
(3) The court may vacate a guardianship order, return the ward
to the custody of a parent and make any other order the court is
authorized to make under this chapter if the court determines
that:
(a) It is in the ward's best interests to vacate the
guardianship;
(b) The conditions and circumstances giving rise to the
establishment of the guardianship have been ameliorated; and
(c) The parent is presently able and willing to adequately care
for the ward.
(4) The court may vacate a guardianship order after determining
that the guardian is no longer willing or able to fulfill the
duties of a guardian. Upon vacating a guardianship order under
this subsection, the court shall conduct a hearing:
(a) Within 14 days, make written findings required in ORS
419B.185 (1)(a), (d) and (e) and make any order directing
disposition of the ward that the court is authorized to make
under this chapter; and
(b) Pursuant to ORS 419B.476 within 90 days.
(5) In determining whether it is in the ward's best interests
to modify or vacate a guardianship, the court shall consider, but
is not limited to considering:
(a) The ward's emotional and developmental needs;
(b) The ward's need to maintain existing attachments and
relationships and to form attachments and relationships,
including those with the birth family;
(c) The ward's health and safety; and
(d) The ward's wishes.
(6) In addition to service required under ORS 419B.851, a party
filing a motion to vacate a guardianship shall serve the motion
upon the Department of Human Services.
(7) Notwithstanding subsection (1) of this section, a parent
may not move the court to vacate a guardianship once a
guardianship is granted under ORS 419B.365.
{ + (8) If a guardianship is established under section 1 of
this 2012 Act and ORS 419B.366, the court shall conduct a court
review not later than 60 days before the ward reaches 18 years of
age. At the hearing, the court shall inform the ward that after
reaching 18 years of age the ward may not be placed in substitute
care in the legal custody of the Department of Human
Services. + }
SECTION 4. { + Section 1 of this 2012 Act and the amendments
to ORS 419B.116 and 419B.368 by sections 2 and 3 of this 2012 Act
apply to motions for limited participation and motions for
community guardianship filed on or after the effective date of
this 2012 Act. + }
SECTION 5. { + This 2012 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
Enrolled House Bill 4023 (HB 4023-A) Page 4
is declared to exist, and this 2012 Act takes effect on its
passage. + }
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Passed by House February 27, 2012
.............................................................
Ramona Kenady Line, Chief Clerk of House
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Passed by Senate February 29, 2012
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 4023 (HB 4023-A) Page 5
Received by Governor:
......M.,............., 2012
Approved:
......M.,............., 2012
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2012
.............................................................
Kate Brown, Secretary of State
Enrolled House Bill 4023 (HB 4023-A) Page 6
