Kinship Guardianship as a Permanency Option - Oregon

Date: July 2018


Citation: Admin. Rules § 413-070-0000

'Guardian' means an individual who has been granted guardianship of a child through a judgment of the court.

The term 'relative' applies to the following individuals:

  • A blood relative or half-blood relative of preceding generations denoted by the prefixes of grand, great, or great-great
  • A sibling, including a person with a sibling relationship to the child through a putative father
  • An aunt, uncle, nephew, niece, first cousin, and first cousin once removed
  • A spouse of anyone listed above, even if a petition for annulment, dissolution, or separation has been filed or the marriage is terminated by divorce or death
  • A person defined as a relative by the law or custom of the Tribe if the child is an Indian child or in the legal custody of a Tribe
  • An individual defined as a relative of a refugee child
  • A stepparent or former stepparent, if the child had a relationship with the former stepparent prior to the most recent episode of department custody; a stepbrother; or a stepsister
  • The registered domestic partner or a former registered domestic partner of the child's parent, if the child had a relationship with the former domestic partner prior to the most recent episode of department custody
  • The adoptive parent of a sibling of the child
  • The unrelated legal or biological parent of a half-sibling of the child when the half-sibling is living with the unrelated legal or biological parent
  • A person not related to the child who is identified as a member of the family by the child and has had an emotionally significant relationship with the child prior to the most recent episode of department custody

A 'relative caregiver' is an individual who operates a home that has been approved by the department to provide care for a related child.

'Substitute caregiver' means a relative caregiver, foster parent, or provider authorized to provide care to a child in the legal or physical custody of the department.

Purpose of Guardianship

Citation: Admin. Rules § 413-070-0660

The Department of Human Services may consider guardianship as a permanency plan for a child in the care or legal custody of the department based on the individual safety, permanency, and well-being needs of the child, when the department has determined:

  • The child is unable to safely return to the home of a parent.
  • Adoption is not an appropriate plan based on the best interests of the child.

When considering guardianship as the permanency plan, the caseworker must:

  • Consult with the child who is age 14 or older
  • Seek input from the child as developmentally appropriate, regardless of the age of the child
  • Assess the parents' acceptance of guardianship as a permanency plan, their desire for continued contact with the child, and how this will impact the plan

A Guardian's Rights and Responsibilities

Citation: Rev. Stat. §§ 419B.376; 419B.379

A person, agency, or institution having guardianship of a ward by reason of appointment by the court has the duties and authority of a guardian of the ward, including, but not limited to, the following:

  • To authorize surgery for the ward
  • To authorize the ward to enlist in the Armed Forces of the United States
  • To consent to the ward's marriage
  • To consent to the adoption of the ward
  • To make other decisions concerning the ward of substantial legal significance
  • To make such reports and to supply such information to the court as the court may from time to time require

A person appointed guardian of the ward by the court is guardian only and not a conservator of the estate of the ward, unless that person also is appointed conservator of the ward's estate in a protective proceeding as provided in Chapter 125.

Qualifying the Guardian

Citation: Rev. Stat. § 419B.369; Admin. Rules § 413-070-0665

When a child is in the legal custody of the department, the department shall conduct a guardianship study of the proposed guardian's home and provide a report to the court regarding the suitability of the proposed guardian and whether guardianship is in the child's best interests.

When a child is not in the custody of the department, the court may order the proposed guardian to obtain, at his or her expense, a guardianship study of his or her home.

In regulation: In order to be considered as a potential guardian, the substitute caregiver must:

  • Have a current certificate of approval from the department, a child-placing agency, or a participating Tribe
  • Be able to maintain a stable relationship with the child and function effectively without department supervision
  • Have an updated home study describing how the caregiver's skills and abilities meet the child's best interests and need for safety and permanency
  • Have adequate means of financial support and connections to community resources
  • Have a strong commitment to caring permanently for the child

The caseworker must complete all of the following:

  • Assess the ability of the caregiver to ensure the child's safety, permanency, and well-being
  • Assess the commitment of the caregiver to raise the child
  • Provide the caregiver with information regarding the duties and responsibilities of a guardian
  • Assess whether the caregiver and the child can maintain a stable relationship and function effectively without department supervision
  • Consult with the caregiver regarding guardianship assistance and inform the caregiver of the eligibility requirements of guardianship assistance

Procedures for Establishing Guardianship

Citation: Rev. Stat. §§ 419B.365; 419B.366

At any time after a child is placed under court jurisdiction, but prior to filing or after dismissal of a petition for termination of the parent's rights, a party may file a petition for permanent guardianship. The grounds for granting a permanent guardianship are the same as those for termination of parental rights.

The court shall grant a permanent guardianship if it finds by clear and convincing evidence that:

  • The grounds cited in the petition are true.
  • It is in the best interests of the child that the parent never have physical custody of the child, but that other parental rights and duties should not be terminated.

If an Indian child is involved, the permanent guardianship must be in compliance with the Indian Child Welfare Act. The facts supporting any finding made to establish a permanent 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 beyond a reasonable doubt.

If the court has approved a plan of guardianship under § 419B.476, the court may grant the motion for guardianship if the court determines, after a hearing, that:

  • The child cannot safely return to a parent within a reasonable amount of time.
  • Adoption is not an appropriate plan for the child.
  • The proposed guardian is suitable to meet the needs of the child and is willing to accept the duties and authority of a guardian.
  • Guardianship is in the child's best interests. In determining whether guardianship is in the child's best interests, the court shall consider the child's wishes.

Unless vacated under § 419B.368, a guardianship established under this section continues as long as the child is subject to the court's jurisdiction.

Contents of a Guardianship Order

Citation: Rev. Stat. § 419B.367

Upon granting a motion for guardianship, the court shall issue letters of guardianship to the guardian. A guardian may disclose letters of guardianship when necessary to fulfill the duties of a guardian. Letters of guardianship grant the authority and duties of guardian for the child, including legal custody of the child.

In the order appointing the guardian, the court shall require the guardian to file with the court a written report within 30 days after each anniversary of appointment and may:

  • Specify the frequency and nature of visitation or contact between relatives, including siblings, and the child, if the court determines that visitation or contact is in the child's best interests
  • Enter an order for child support
  • Make any other order to provide for the child's continuing safety and well-being

Except as otherwise limited by the court, a person appointed guardian has legal custody of the child and the duties and authority of legal custodian and guardian. A guardian is not liable to third persons for acts of the ward solely by reason of being appointed guardian.

Modification/Revocation of Guardianship

Citation: Rev. Stat. § 419B.368

The court may modify a guardianship order if the court determines that doing so would be in the child's best interests.

The court may vacate a guardianship order, return the child 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:

  • It is in the child's best interests to vacate the guardianship.
  • The conditions and circumstances that gave rise to the establishment of the guardianship have been satisfactorily addressed.
  • The parent is presently able and willing to adequately care for the child.

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. In determining whether it is in the child's best interests to modify or vacate a guardianship, the court shall consider, but is not limited to considering:

  • The child's emotional and developmental needs
  • The child's need to maintain existing and form new attachments and relationships, including those with the birth family
  • The child's health and safety
  • The child's wishes

If a guardianship is established under §§ 419B.366 and 419B.371, the court shall conduct a court review no later than 60 days before the child reaches age 18. At the hearing, the court shall inform the child that after reaching age 18 the child may not be placed in substitute care in the legal custody of the department.

Kinship Guardianship Assistance

Citation: Admin. Rules §§ 413-070-0917; 413-070-0000

To be eligible for title IV-E guardianship assistance, a child must meet all of the following:

  • Be a United States citizen or qualified noncitizen
  • Have resided in the home of the potential guardian for at least 6 consecutive months during which the potential guardian was fully licensed as a foster family home
  • Be placed with the potential guardian who meets the definition of a relative, as defined by the rules
  • Demonstrate a strong attachment to the potential guardian
  • Be removed from his or her home pursuant to a voluntary placement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child
  • Be eligible for title IV-E foster care maintenance payments
  • Be in the care or custody of the department or participating Tribe
  • Have special needs or be placed with a potential guardian who indicates an economic need to care for the child
  • Be consulted regarding the guardianship when the child is age 14 or older

A child who is ineligible for title IV-E guardianship assistance may be eligible for State-funded guardianship assistance.

A stepparent is considered a parent and not a relative for the purpose of eligibility for guardianship assistance, unless a petition for annulment, dissolution, or separation has been filed, or the marriage has been terminated by divorce or death.

A foster parent may only be considered a relative for the purpose of eligibility for guardianship assistance when:

  • There is a compelling reason why adoption is not an achievable permanency plan.
  • The foster parent is currently caring for a child who has a permanency plan or concurrent permanent plan of guardianship.
  • The foster parent has cared for the child for at least 12 of the past 24 months.
  • The department or Tribe has approved the foster parent for consideration as a guardian.

Links to Agency Policies

Oregon Administrative Code, Chapter 413 - Child Welfare Programs, select Division 70, Substitute Care; Division 100, Substitute Care - Payments.

Oregon Department of Human Services: