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In re A. M.

Supreme Court of Oregon

July 18, 2019

In the Matter of A. M., a Child.
v.
J. C., Respondent on Review. DEPARTMENT OF HUMAN SERVICES, Petitioner below, and A. F., Petitioner on Review, and A. M., Child-Respondent,

          Argued and submitted September 10, 2018

          On review from the Court of Appeals CC 12131J; CA A164555.[*]

          George W. Kelly, Eugene, Oregon, argued the cause and fled the briefs for petitioner on review.

          Shannon Storey, Chief Defender, Office of Public Defense Services, Juvenile Appellate Section, Salem, argued the cause and fled the brief for respondent on review.

          Inge D. Wells, Assistant Attorney General, fled the brief for amicus curiae State of Oregon, by and through the Department of Human Services. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices. [**]

         [365 Or. 224] Case Summary:

         Mother, whose child is a ward of the juvenile court, moved to terminate the court's jurisdiction over the child and vacate the general guardianship that the court had established over the child, asserting that the factual basis for the court's jurisdiction over the child no longer existed. The guardian argued that the juvenile court could not vacate the guardianship unless mother established, pursuant to ORS 419B.368, that it was in the child's best interests to do so. The trial court ruled that mother had not established a basis for vacating the guardianship under ORS 419B.368, and did not address whether the basis for its jurisdiction continued to exist.

         Held:

         Under ORS 419B.366, unless a general guardianship is vacated pursuant to ORS 419B.368, it continues as long as the child is subject to the court's jurisdiction as provided by ORS 419B.328. ORS 419B.328 indicates that the court's jurisdiction continues until one of several events occurs, including the court entering an order terminating its wardship. Thus, a general guardianship continues only as long as the child is subject to the court's jurisdiction.

         The decision of the Court of Appeals is affirmed. The judgment of the juvenile court is reversed, and the case is remanded to the juvenile court for further proceedings.

         [365 Or. 225] DUNCAN, J.

         This juvenile dependency case concerns the requirements for vacating a general guardianship established pursuant to ORS 419B.366. In the juvenile court, mother moved to terminate the court's wardship over her child, A, and vacate the general guardianship the court had established over A. Mother's motion was premised on her assertion that the factual basis for the court's jurisdiction over A no longer existed. The juvenile court did not determine whether the factual basis for its jurisdiction over A continued to exist; instead, it denied mother's motion on the ground that mother had failed to establish that vacating the guardianship was in As best interests. Mother appealed, and the Court of Appeals vacated the juvenile court's judgment, holding that, if mother established that the factual basis for the juvenile court's jurisdiction over A no longer existed, then the juvenile court was required to terminate its wardship over A and, consequently, could not continue the guardianship. Dept. of Human Services v. J. C, 289 Or.App. 19, 24, 407 P.3d 969 (2017). Because the juvenile court had not determined whether it was required to terminate its wardship over A, the Court of Appeals remanded the case to the juvenile court to make that determination. Id. As guardian, Fuller, petitioned this court for review. We allowed the petition and, for the reasons explained below, we conclude that the juvenile court must determine whether it is required to terminate its wardship over A because, if it is, then the guardianship cannot continue.

         We begin with a brief statement of the relevant law. When a child's "condition or circumstances are such as to endanger the welfare of [the child]," the juvenile court may assert jurisdiction over the child. ORS 419B.100(1)(c). The court asserts jurisdiction "to protect the child's safety and to work with the child's family to correct the problems that gave rise to the court's exercise of jurisdiction." Dept. of Human Services v. S. M, 355 Or. 241, 245-46, 323 P.3d 947 (2014). When the court asserts jurisdiction over a child, the court "shall make" the child "a ward of the court." ORS 419B.328(1). Once a child is a ward of the court, the court may direct that the ward remain in the legal custody of the ward's parents or be placed in the legal custody of another, [365 Or. 226] including, for example, a relative, a foster care provider, or the Department of Human Services (DHS). ORS 419B.331; ORS 419B.334; ORS 419B.337. "The court's wardship continues, and the ward is subject to the court's jurisdiction, until one of [five events] occurs." ORS 4l9B.328(2)(a)-(e). Specifically, the court's wardship continues and the ward remains subject to the court's jurisdiction until (a) the court dismisses the petition concerning the ward, (b) the court transfers its jurisdiction over the ward, (c) the court enters an order terminating the wardship, (d) a judgment of adoption in entered, or (e) the ward becomes 21 years of age. Id. While a child is a ward of the court, the court oversees the development and implementation of a permanency plan for the child. See generally ORS 419B.476 (describing court's duties to establish a permanency plan).

         In this case, DHS petitioned the juvenile court to assert jurisdiction over mother's child, A, pursuant to ORS 419B.100(1)(c), on the ground that that mother's use of controlled substances endangered A. The court granted the petition in May 2012, and, consequently, A, then eight months old, became a ward of the court. She was placed in the legal custody of DHS, and was placed in foster care with mother's aunt, Fuller. Initially, the juvenile court's permanency plan was for A to return to mother, but the court later changed the plan to guardianship after mother failed to make sufficient progress to make it possible for A to return home.

         In November 2013, the court established a guardianship for A pursuant to ORS 419B.366, which governs what we will refer to as a "general guardianship." As relevant here, to establish a general guardianship, the juvenile court must determine that "[t]he ward cannot safely return to a parent within a reasonable time," "[a]doption is not an appropriate plan for the ward," "[t]he proposed guardian is suitable to meet the needs of the ward and is willing to accept the duties and authority of a guardian," and "[g]uard-ianship is in the ward's best interests." ORS 419B.366(5). When making those determinations, the facts supporting any finding made must be established by a preponderance of the evidence. ORS 419B.366(2). A parent may move to vacate a general guardianship. ORS 419B.368(1).

         [365 Or. 227] A general guardianship pursuant to ORS 419B.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 parent's rights exists and "[i]t 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." ORS 419B.365(2), (3). A parent may not move to vacate a permanent guardianship. ORS 419B.368(7).

         In April 2016, mother filed a motion "to vacate guardianship and terminate wardship" on the ground that factual basis for the court's jurisdiction-mother's substance abuse-no longer existed. A and Fuller opposed the motion. Following a hearing on the motion, the parties submitted written closing arguments. They disagreed about the statutory requirements for terminating a general guardianship. ORS 419B.366(6) concerns the duration of general guardianships, and it provides that, "[u]nless vacated pursuant to ORS 419B.368, 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." This case turns on the meaning of that subsection.

         In the juvenile court, mother argued that the guardianship could not continue because the factual basis for the juvenile court's jurisdiction over A no longer existed and, therefore, the court had to "terminate wardship" and "vacate the guardianship." For support, mother relied on Court of Appeals cases for the proposition that "a juvenile court may not continue a wardship if the jurisdictional facts on which it is based have ceased to exist." State v. A. L. M, 232 Or.App. 13, 16, 220 P.3d 449 (2009) (internal quotation marks omitted); see also Dept. of Human ...


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