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The Oregon Administrative Rules contain OARs filed through July 15, 2014
 
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DEPARTMENT OF HUMAN SERVICES, CHILD WELFARE PROGRAMS

 

DIVISION 70

SUBSTITUTE CARE

Multiethnic Placements

413-070-0000

Purpose

The Multiethnic Placement Act of 1994 as amended by the Small Business Job Protection Act of 1996, Section 1808, "Barriers to Interethnic Adoption" apply to all activities of SOSCF and to all private child placement and adoption agencies who receive federal funds of any kind, directly or indirectly. The purpose of MEPA was to:

(1) Decrease the length of time a child waits to be adopted;

(2) Prevent discrimination in foster care and adoption; and

(3) Promote the recruitment of ethnic and minority families that reflect the children in the public child welfare system. These rules establish a policy of non-discrimination in SOSCF's and entity's practice of foster and adoptive placement of children, and in the recruitment and selection of family resources. In the case of an Indian child, SOSCF and entity shall follow Indian Child Welfare Act and SOSCF Policy I-E.2.1, Placement of Indian Children.

Stat. Auth.: ORS 418.005
Stats. Implemented: Multiethnic Placement Act of 1994, Small Business Job Protection Act of 1996 "Removal of Barriers to Interethnic Adoption" & Title VI of Civil Rights Act of 1964
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 13-2000, f. & cert. ef. 7-7-00

413-070-0010

Definitions

(1) "Cultural Heritage" means the language, customary beliefs, social norms, and material traits including, but not limited to the dress, food, music and dance of a racial, religious or social group that are transmitted from one generation to another.

(2) "Entity" means any organization or agency (e.g., a private child placing agency) that is separate and independent of the State agency; performs functions pursuant to a contract or subcontract with the state agency, and receives federal funds.

(3) "ICWA" means the Indian Child Welfare Act, P.L. No. 95-608, codified at 25 USC §§ 1901-1963, which the Congress of the United States adopted in 1978 "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families," 25 USC § 1901.

(4) "Interethnic Adoption Provisions of the Small Business Job Protection Act of 1996 (IEPA)" means Section 1808 of the act which is entitled "Removal of Barriers to Interethnic Adoption," and affirms and strengthens the prohibition against discrimination in adoption or foster care placements, and is codified in 42 U.S.C §671(a)18.

(5) "Multiethnic Placement Act of 1994" means federal statutes which prohibit discrimination based on race, color or national origin as considerations in adoption and foster placements.

(6) "Race" means American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, White.

(7) "Title VI of Civil Rights Act of 1964" prohibits discrimination on the basis of race, color or national origin under programs receiving federal assistance through the United States Department of Health and Human Services.

Stat. Auth.: ORS 418.005
Stats. Implemented: Multiethnic Placement Act of 1994, Small Business Job Protection Act of 1996 "Removal of Barriers to Interethnic Adoption" & Title VI of Civil Rights Act of 1964
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 13-2000, f. & cert. ef. 7-7-00

413-070-0015

Values

(1) Every child needs and deserves a safe, nurturing and permanent home.

(2) SOSCF should avoid practices which delay permanency for any child.

Stat. Auth.: ORS 418.005
Stats. Implemented: Multiethnic Placement Act of 1994, Small Business Job Protection Act of 1996 "Removal of Barriers to Interethnic Adoption" & Title VI of Civil Rights Act of 1964
Hist.: SOSCF 13-2000, f. & cert. ef. 7-7-00

413-070-0020

Policy

(1) In making placement decisions, SOSCF and entity shall be guided by the best interest of the child. SOSCF and entity placements shall be made in the context of an individualized assessment of the child's total needs, and an assessment of a potential foster or adoptive family's ability to meet those needs.

(2) Refer to SOSCF Policy I-E.1.1, Working with Relatives Towards Permanency for Children, SOSCF Policy I-E.3.1, Placement Matching, and SOSCF Policy I-G.1.1, Non-Relative Current Caretaker Adoption Planning for direction on first consideration of relatives as placement resources, placement matching, and current caretaker adoption planning.

Stat. Auth.: ORS 418.005
Stats. Implemented: Multiethnic Placement Act of 1994, Small Business Job Protection Act of 1996 "Removal of Barriers to Interethnic Adoption" & Title VI of Civil Rights Act of 1964
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 13-2000, f. & cert. ef. 7-7-00

413-070-0022

Denials or Delays of Placement Based on Race, Color or National Origin Prohibited

(1) Except as provided in (2), SOSCF shall not delay or deny the placement of a child for adoption or into foster are on the basis of the race, color or national origin of the adoptive or foster parent or the child involved, nor shall SOSCF or entity consider the race, color or national origin of a child or of a prospective foster or adoptive parent as factors in making adoptive or foster placement decisions.

(2) SOSCF may consider the race, color or national origin when a particular child presents specific compelling special circumstances (such as an older child's statement of preference) and consideration or race, color or national origin in his/her placement decision is the only way to achieve the best interest of that child.

(3) SOSCF and entity may consider a child's needs related to cultural heritage, such as specific language needs, when making individualized placement decisions. However, SOSCF and entity shall not use routine cultural heritage assessments as a substitute for considering race, color or national origin or otherwise considering the cultural heritage needs of a child in a manner that would circumvent the general prohibition against considering the race, color or national origin of a child when making placement decisions.

(4) SOSCF and entity shall not honor the request of birth parents to place their child who was either voluntarily or involuntarily removed, with adoptive or foster parents of a specific racial, ethnic, and/or cultural group, except as provided in (2) above.

Stat. Auth.: ORS 418.005
Stats. Implemented: Multiethnic Placement Act of 1994, Small Business Job Protection Act of 1996 "Removal of Barriers to Interethnic Adoption" & Title VI of Civil Rights Act of 1964
Hist.: SOSCF 13-2000, f. & cert. ef. 7-7-00

413-070-0027

Denial of Opportunity to Be an Adoptive or Foster Parent Based on Race, Color, or National Origin Prohibited

(1) SOSCF and entity shall have an active recruitment program to recruit and retain foster and adoptive parents who reflect the ethnic and racial diversity of children for whom foster and adoptive homes are needed, and who can meet the needs of children waiting placement.

(2) Except as provided in (3), SOSCF and entity shall not deny to any person the opportunity to become an adoptive or foster parent on the basis of the race, color, or national origin of the person or of the child involved, not shall SOSCF and entity use race, color or national origin to screen or assess prospective foster or adoptive applicants.

(3) SOSCF and entity may consider as a factor when placing a particular child the willingness and ability of the prospective foster or adoptive parent to care for a child of a different race, color or national origin.

Stat. Auth.: ORS 418.005
Stats. Implemented: Multiethnic Placement Act of 1994, Small Business Job Protection Act of 1996 "Removal of Barriers to Interethnic Adoption" & Title VI of Civil Rights Act of 1964
Hist.: SOSCF 13-2000, f. & cert. ef. 7-7-00

413-070-0030

Training

The State Office for Services to Children and Families shall provide training to assure compliance with Title VI of the Civil Rights Act of 1964 and, the Multiethnic Placement Act of 1994, as amended by the Interethnic Adoption Provisions of the Small Business Job Protection Act of 1996.

Stat. Auth.: ORS 418.005
Stats. Implemented: Multiethnic Placement Act of 1994, Small Business Job Protection Act of 1996 "Removal of Barriers to Interethnic Adoption" & Title VI of Civil Rights Act of 1964
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 13-2000, f. & cert. ef. 7-7-00

413-070-0033

Exceptions

OAR 413-070-0000 to 413-070-0030 do not apply to the placement of children pursuant to the Indian Child Welfare Act.

Stat. Auth.: ORS 418.005
Stats. Implemented: Multiethnic Placement Act of 1994, Small Business Job Protection Act of 1996 "Removal of Barriers to Interethnic Adoption" & Title VI of Civil Rights Act of 1964
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 13-2000, f. & cert. ef. 7-7-00

Search for and Engagement of Relatives

413-070-0060

Purpose

The purpose of these rules, OAR 413-070-0060 to 413-070-0087, is to describe the Department's responsibility to search for and engage a child or young adult's relatives and persons with a caregiver relationship. The Department seeks to identify a child or young adult's relatives and persons with a caregiver relationship for one or more of the following purposes:

(1) To engage in managing the child or young adult's safety;

(2) To provide a substitute care resource;

(3) To provide a permanent placement resource;

(4) To develop and maintain family relationships and cultural connections with the child or young adult in substitute care; and

(5) To gather family information and family history to plan for meeting the child or young adult's needs.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.119, 418.005, 419A.004, 419B.192
Hist.: SOSCF 19-1998(Temp), f. & cert. ef. 10-30-98 thru 4-28-99; SOSCF 6-1999, f. & cert. ef. 4-29-99; SOSCF 3-2001(Temp) f. & cert. ef. 1-24-01 thru 7-22-01; SOSCF 34-2001 f. 6-29-01 cert. ef. 7-1-01; CWP 10-2010, f. & cert. ef. 7-1-10

413-070-0063

Definitions

The following definitions apply to OAR 413-070-0060 to 413-070-0093:

(1) "Caregiver relationship" means a relationship between a person and a child that meets the requirements of the following subsections:

(a) The relationship has existed for the 12 months immediately preceding the initiation of a dependency proceeding, at least six months during a dependency proceeding, or half of the child's life if the child is less than six months of age.

(b) The person had physical custody of the child or resided in the same household as the child and provided the child on a daily basis with the love, nurturing, and other necessities required to meet the child's psychological and physical needs.

(c) The child depended on the relationship to meet the child's needs.

(d) A "caregiver relationship" does not include a relationship between a child and a person who is the unrelated foster parent of the child unless the relationship continued for a period of at least twelve consecutive months.

(2) "Certificate of approval" means a document that the Department issues to approve the operation of a child-specific relative caregiver home, child-specific foster home, pre-adoptive home, or a regular foster home.

(3) "Child" means a person under 18 years of age.

(4) "Department" means the Department of Human Services, Child Welfare.

(5) "Designee" means a person who the designator directly and immediately supervises or a person with equal or greater management responsibility than the designator.

(6) "Foster parent" means an individual who operates a home that has been approved by the Department to provide care for an unrelated child or young adult placed in the home by the Department.

(7) "Indian child" is any unmarried person under 18 years of age who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

(8) "Parent" means the biological or adoptive mother or the legal father of the child. A legal father is a man who has adopted the child or whose paternity has been established or declared under ORS 109.070, ORS 416.400 to 416.465, or by a juvenile court. In cases involving an Indian child under the Indian Child Welfare Act (ICWA), a legal father includes a man who is a father under applicable tribal law. "Parent" also includes a putative father who has demonstrated a direct and significant commitment to the child by assuming or attempting to assume responsibilities normally associated with parenthood, unless a court finds that the putative father is not the legal father.

(9) "Registered domestic partner" means an individual joined in a domestic partnership that has been registered by a county clerk in accordance with ORS 106.300 to 106.340.

(10) "Relative" means (each of the following individuals is a "relative"):

(a) An individual with one of the following relationships to the child or young adult through the parent of the child or young adult unless the relationship has been dissolved by adoption of the child, young adult, or parent:

(A) Any blood relative of preceding generations denoted by the prefixes of grand, great, or great-great.

(B) Any half-blood relative of preceding generations denoted by the prefixes of grand, great, or great-great (individuals with one common biological parent are half-blood relatives).

(C) A sibling, also to include an individual with a sibling relationship to the child or young adult through a putative father.

(D) An aunt, uncle, nephew, niece, first cousin, and first cousin once removed.

(E) A spouse of anyone listed in paragraphs (A) to (D) of this subsection, even if a petition for annulment, dissolution, or separation has been filed or the marriage is terminated by divorce or death. To be considered a "relative" under this paragraph, the child or young adult must have had a relationship with the spouse prior to the most recent episode of Department custody.

(b) An individual with one of the following relationships to the child or young adult:

(A) An individual defined as a relative by the law or custom of the tribe of the child or young adult if the child or young adult is an Indian child under the Indian Child Welfare Act or in the legal custody of a tribe.

(B) An individual defined as a relative of a refugee child or young adult under Child Welfare Policy I-E.2.2, "Placement of Refugee Children", OAR 413-070-0300 to 413-070-0380.

(C) A stepparent or former stepparent if the child or young adult had a relationship with the former stepparent prior to the most recent episode of Department custody; a stepbrother; or a stepsister.

(D) The registered domestic partner of the parent of the child or young adult or a former registered domestic partner of the parent of the child or young adult if the child or young adult had a relationship with the former domestic partner prior to the most recent episode of Department custody.

(E) The adoptive parent of a sibling of the child or young adult.

(F) The unrelated legal or biological father or mother of a half-sibling of the child or young adult when the half-sibling of the child or young adult is living with the unrelated legal or biological father or mother.

(c) An individual identified by the child or young adult or the family of the child or young adult, or an individual who self-identifies, as being related to the child or young adult through the parent of the child or young adult by blood, adoption, or marriage to a degree other than an individual specified as a "relative" in paragraphs (A) to (D) of subsection (a) of this section unless the relationship has been dissolved by adoption of the child, young adult, or parent.

(d) An individual meeting the requirements of at least one of the following paragraphs:

(A) Not related to the child, young adult, or parent by blood, adoption, or marriage:

(i) Who is identified as a member of the family by the child or young adult or by the family of the child or young adult; and

(ii) Who had an emotionally significant relationship with the child or young adult or the family of the child or young adult prior to the most recent episode of Department custody.

(B) Who has a blood relationship to the child or young adult as described in paragraphs (a)(A) to (D) of this section through the birth parent of the child or young adult, but the prior legal relationship has been dissolved by adoption of the child, young adult, or parent.

(e) For eligibility for the guardianship assistance program:

(A) A stepparent is considered a parent and is 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 to the adoptive or biological parent of the child has been terminated by divorce or death.

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

(i) There is a compelling reason why adoption is not an achievable permanency plan;

(ii) The foster parent is currently caring for a child, in the care or custody of the Department or a participating tribe, who has a permanency plan or concurrent permanent plan of guardianship;

(iii) The foster parent has cared for the child for at least 12 of the past 24 months; and

(iv) The Department or tribe has approved the foster parent for consideration as a guardian.

(11) "Relative caregiver" means an individual who operates a home that has been approved by the Department to provide care for a related child or young adult placed in the home by the Department.

(12) "Relative search" means the efforts of the Department to identify, locate, and document the contact with a child or young adult's relatives.

(13) "Safety service provider" means a participant in a protective action plan, initial safety plan, or ongoing safety plan whose actions, assistance, or supervision help a family in managing a child's safety.

(14) "Sibling" means one of two or more children or young adults related:

(a) By blood or adoption through a common legal parent;

(b) Through the marriage of the legal or biological parents of the children or young adults; or

(c) Through a legal or biological parent who is the registered domestic partner of the legal or biological parent of the children or young adults.

(15) "Substitute care" means the out-of-home placement of a child or young adult who is in the legal or physical custody and care of the Department.

(16) "Young adult" means a person aged 18 through 20 years who remains in the care and custody of the Department, and lives in substitute care or lives independently through the Department's Independent Living Subsidy Program.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.119, 418.005, 419A.004, 419B.192)
Hist.: SOSCF 19-1998(Temp), f. & cert. ef. 10-30-98 thru 4-28-99; SOSCF 6-1999, f. & cert. ef. 4-29-99; SOSCF 3-2001(Temp) f. & cert. ef. 1-24-01 thru 7-22-01; SOSCF 34-2001, f. 6-29-01 cert. ef. 7-1-01; CWP 10-2010, f. & cert. ef. 7-1-10; CWP 10-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 31-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 11-2014, f. & cert. ef. 6-3-14

413-070-0066

Legal Obligations Regarding Placement Preference

(1) The Department must conduct a search for a child or young adult's relatives:

(a) To assess the relatives' availability as a placement resource;

(b) To make diligent efforts to place a child or young adult with a relative or person with a caregiver relationship as the substitute care placement resource;

(c) To place the child or young adult with siblings who are also in substitute care, unless placement of the siblings together is not in the best interest of either the child or young adult or the child or young adult's sibling; and

(d) When necessary to place a child or young adult with a relative or person with a caregiver relationship as a permanent placement resource.

(2) When a child or young adult must be placed in substitute care and the Department is unable to place the child or young adult with a relative at the time of initial placement, the Department must determine the substitute care placement in order of preference using the placement matching criteria set forth in Child Welfare Policy I-E.3.1, "Placement Matching" OAR 413-070-0600 to 413-070-0645.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.119, 418.005, 419A.004, 419B.192
Hist.: SOSCF 19-1998(Temp), f. & cert. ef. 10-30-98 thru 4-28-99; SOSCF 6-1999, f. & cert. ef. 4-29-99; SOSCF 3-2001(Temp) f. & cert. ef. 1-24-01 thru 7-22-01, Renumbered from 413-070-0068; SOSCF 34-2001, f. 6-29-01 cert. ef. 7-1-01; CWP 10-2010, f. & cert. ef. 7-1-10

413-070-0069

Responsibilities to Identify Relatives and Persons with a Caregiver Relationship

(1) The Department must begin the search for relatives or persons with a caregiver relationship:

(a) During a CPS assessment when the Department has determined that a child is unsafe and an individual other than the parent or guardian is required to manage a child's safety; or

(b) When a parent or guardian:

(A) Is requesting the voluntary placement of the child; or

(B) Is voluntarily giving custody of the child to the Department.

(2) The Department must communicate with the following individuals to identify the child or young adult's relatives or persons with a caregiver relationship:

(a) The child or young adult's parents or legal guardians;

(b) The child or young adult, whenever possible;

(c) When the child or young adult is a refugee, other individuals identified in Child Welfare Policy I-E.2.2, "Placement of Refugee Children" OAR 413-070-0300 to 413-070-0380; and

(d) When the child or young adult is an Indian child, the tribe, pursuant to Child Welfare Policy I-E-E.2.1, "Placement of Indian Children" OAR 413-070-0100 to 413-070-0260.

(3) The Department may use, but is not limited to using, the following resources to identify or locate a child or young adult's relatives or persons with a caregiver relationship:

(a) An individual identified as a relative by the child or young adult or the child or young adult's family;

(b) An individual thought or known by the Department to be a relative of the child or young adult;

(c) Oregon data information systems available to the Department;

(d) The internet;

(e) Collateral contacts; and

(f) Other community resources available to search for the identity and contact information of relatives or persons with a caregiver relationship.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.119, 418.005, 419A.004, 419B.192
Hist.: SOSCF 19-1998(Temp), f. & cert. ef. 10-30-98 thru 4-28-99; SOSCF 6-1999, f. & cert. ef. 4-29-99; SOSCF 3-2001(Temp) f. & cert. ef. 1-24-01 thru 7-22-01; SOSCF 34-2001, f. 6-29-01 cert. ef. 7-1-01; CWP 10-2010, f. & cert. ef. 7-1-10

413-070-0072

Contact with Relatives or Persons with a Caregiver Relationship

(1) Unless a child welfare program manager or designee approves not contacting or a court orders no contact with an identified individual because the contact may compromise a child or young adult's or another individual's safety, the Department must make diligent efforts to contact each individual identified under OAR 413-070-0069 as soon as reasonably possible and no later than 30 calendar days after a child's initial:

(a) Removal from the custody of a parent or guardian; or

(b) Placement in substitute care through a voluntary placement agreement or voluntary custody agreement.

(2) During the contact required under section (1) of this rule, the Department must:

(a) Provide each grandparent and adult relative with notice in the individual's primary language that specifies:

(A) Whether the child or young adult has been removed from the custody of a parent or guardian to manage child safety or has been placed in substitute care through a voluntary placement agreement or voluntary custody agreement;

(B) Whether the child or young adult is currently residing with a relative;

(C) The opportunities and requirements associated with being assessed as a safe and appropriate safety service provider;

(D) The opportunities and requirements associated with being assessed to become a relative caregiver; and

(E) The rights of relatives set forth in Child Welfare Policy I-A.4.5, "Rights of Relatives" OAR 413-010-0300 to 413-010-0340, and the statutes governing intervention, limited participation, and post-adoption communication agreements.

(b) Request the names of other relatives not previously identified.

(3) The Department must document in the Department's information system:

(a) The approval not to contact an individual under section (1) of this rule;

(b) The name of each individual with whom the Department attempted or made contact;

(c) The individual's relationship to the child or young adult;

(d) The type of contact;

(e) Each individual's response to the notice required in subsection (2)(a) of this rule when a response is received; and

(f) The individual's contact information.

(4) The Department may make a decision to engage an individual as a safety service provider or may place a child in substitute care with a relative prior to contacting all known relatives.

(5) The Department must respond to inquiries from a relative in person or by telephone as soon as reasonably possible and no later than within 15 business days, if a contact telephone number has been provided or discovered, or, when a telephone number has not been provided, contact the individual by other means, including by mail or electronic mail if no other means of contact was identified by the relative.

(6) The caseworker may utilize any meeting or other contact with the family to identify and engage relatives for the purposes set forth in OAR 413-070-0060.

(7) Whenever the Department is provided the name of a relative or person with a caregiver relationship previously unknown to the Department through the diligent search efforts, the Department must:

(a) Document the name and contact information in the Department's information system;

(b) Attempt to contact the individual as soon as reasonably possible and no later than within 15 business days; and

(c) Provide notice as set forth in the requirements and limitations of sections (1) and (2) of this rule.

(8) When the Department is unable to locate contact information for an identified relative or person with a caregiver relationship, the Department must document the efforts to obtain contact information in the Department's information system.

[ED. NOTE: Forms referenced are available from the agency.]

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.119, 418.005, 419A.004, 419B.192
Hist.: SOSCF 19-1998(Temp), f. & cert. ef. 10-30-98 thru 4-28-99; SOSCF 6-1999, f. & cert. ef. 4-29-99; SOSCF 3-2001(Temp) f. & cert. ef. 1-24-01 thru 7-22-01; SOSCF 34-2001, f. 6-29-01 cert. ef. 7-1-01; CWP 10-2010, f. & cert. ef. 7-1-10

413-070-0075

Assessment of a Relative or Person with a Caregiver Relationship for Involvement in Safety Management

(1) The Department must assess an individual identified as a child or young adult's relative or person with a caregiver relationship prior to engaging the individual to assist in safety management as a safety service provider under Child Welfare Policy I-AB.7, "Assessment of an Individual as a Safety Service Provider" OAR 413-015-1200 to OAR 413-015-1230.

(2) The Department must document each decision regarding the involvement of a relative or person with a caregiver relationship as a safety service provider in the Department's information system.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.119, 418.005, 419A.004, 419B.192
Hist.: SOSCF 19-1998(Temp), f. & cert. ef. 10-30-98 thru 4-28-99; SOSCF 6-1999, f. & cert. ef. 4-29-99; SOSCF 3-2001(Temp) f. & cert. ef. 1-24-01 thru 7-22-01; SOSCF 34-2001, f. 6-29-01 cert. ef. 7-1-01; CWP 10-2010, f. & cert. ef. 7-1-10

413-070-0078

Consideration of a Relative or Person with a Caregiver Relationship as a Substitute Caregiver

(1) The Department is responsible for the selection of and placement with a substitute caregiver who best meets the safety, permanency, and well-being needs of the child or young adult.

(2) Whenever possible, the Department must seek the input of the child or young adult and the child or young adult's parents or guardians regarding their preferences of which relatives to assess for the purposes of placement.

(3) When a relative or person with a caregiver relationship has been identified for consideration as a substitute caregiver, the Department must consider:

(a) The individual's ability to provide safety for the child or young adult, including the individual's willingness to cooperate with restrictions on contact between the child or young adult and others and to prevent anyone from influencing the child or young adult on the allegations of the case;

(b) The individual's ability to meet the child or young adult's physical, emotional, and educational needs, including the need to continue in the same school or educational placement;

(c) The individual's ability to support the Department's implementation of the permanent plan;

(d) When more than one individual requests to have the child or young adult placed with them, which individual has the closest existing relationship with the child or young adult; and

(e) When a child or young adult's siblings are also in need of substitute care or continuation in substitute care, the individual's ability to provide substitute care for the child or young adult's siblings.

(4) The Department considers as a substitute care resource an individual described in OAR 413-070-0063(10)(a)-(c) prior to considering an individual described in OAR 413-070-0063(10)(d).

(5) The Department may use the expedited certification process under Child Welfare Policy II-B.1.1, "Responsibilities for Certification and Supervision of Relative Caregivers, Foster Parents, and Pre-adoptive Parents" OAR 413-200-0270 to 413-200-0296 to place the child or young adult with a relative or person with a caregiver relationship prior to contacting all known relatives or persons with a caregiver relationship.

(6) To begin the assessment of a relative or person with a caregiver relationship for the purpose of placement, the Department must complete each of the following actions:

(a) Explain to the relative or person with a caregiver relationship the requirements of certification, the certification process, and the Department's responsibility to select a substitute care resource best able to meet the child or young adult's needs for safety, permanency and well-being.

(b) Search the Department's information system and review any historic information regarding the individual that may be useful in assessing the individual's ability to provide substitute care.

(c) When the relative or person with a caregiver relationship has an interest in providing substitute care, obtain from the individual a signed application for a certificate of approval and a signed consent for a fingerprint-based criminal offender records check of national crime information and complete the requirements of each of the following paragraphs:

(A) Conduct a review of the applicant's records in the Department's information system for any record of child abuse or neglect, and criminal history as required in OAR 413-200-0274(2)(i) and (j); and

(B) Assess the applicant's ability to meet the Department's certification standards as described in Child Welfare Policy II-B.1, "Certification Standards for Foster Parents, Relative Caregivers, and Pre-Adoptive Parents" OAR 413-200-0301 to 413-200-0396, unless, based on the analysis of the information gathered from the applicant's criminal history or child abuse and neglect history, the Department has made a decision to deny a certificate of approval based on the applicant's criminal history or child abuse or neglect history because:

(i) The applicant has committed a crime for which approval may not be granted as described in OAR 413-120-0450(4);

(ii) An exception, as described in OAR 413-120-0450(7), to the applicant's criminal history will not be granted; or

(iii) Based on the applicant's child abuse and neglect history, the Department has made the decision the applicant is not an appropriate placement resource for the child or young adult.

(7) Prior to preparing a notice of intent to deny a certificate of approval under OAR 413-200-0296, contact and inform the applicant of the Department's decision. After the applicant receives the Department's decision and the reasons for the decision:

(a) When the applicant elects to withdraw the application, the certifier must document in the Department's information system that the applicant has withdrawn and the reasons for the Department's decision not to continue with further assessment for the purposes of certification.

(b) When the applicant elects not to withdraw the application, the Department must issue a notice of intent to deny a certificate of approval under OAR 413-200-0296.

(8) The Department must continue efforts to contact other individuals identified in the search efforts described in OAR 413-070-0004 for the purposes of assessment as a substitute caregiver when the initial efforts described in this rule did not result in the identification and certification of a relative caregiver for the child or young adult.

(9) When the Department is considering placement with an individual who lives in a state other than Oregon, Child Welfare Policy I-B.3.4.2, "Interstate Compact on the Placement of Children" OAR 413-040-0200 to 413-040-0330 applies.

(10) At each court hearing, the Department must report to the court the diligent efforts the Department has made to place a child or young adult with relatives and to place siblings together.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.119, 418.005, 419A.004, 419B.192
Hist.: SOSCF 19-1998(Temp), f. & cert. ef. 10-30-98 thru 4-28-99; SOSCF 6-1999, f. & cert. ef. 4-29-99; SOSCF 3-2001(Temp) f. & cert. ef. 1-24-01 thru 7-22-01; SOSCF 34-2001, f. 6-29-01 cert. ef. 7-1-01; CWP 10-2010, f. & cert. ef. 7-1-10

413-070-0081

Review of a Child or Young Adult's Substitute Care Placement

(1) As set forth in section (2) of this rule, the Department must review the diligent efforts to place a child or young adult with a relative or person with a caregiver relationship and determine:

(a) Whether the child or young adult and his or her siblings, if the siblings are also in substitute care, have been placed with a relative or person with a caregiver relationship;

(b) If placement has not occurred already, the current efforts to identify a relative or person with a caregiver relationship able and willing to provide substitute care; and

(c) The additional contact with and assessment of identified relatives necessary to achieve placement with a relative.

(2) The Department must review the efforts to place a child or young adult with a relative or person with a caregiver relationship:

(a) No more than 30 calendar days from the date of the child or young adult's initial placement in substitute care;

(b) When the child or young adult's family, through a family meeting, has recommended substitute care, permanency, or concurrent permanency relative resources other than the current substitute caregiver and those relative resources have not yet been assessed;

(c) When it appears that a child or young adult likely is to experience or experiences a change in substitute caregiver;

(d) When the child or young adult's substitute caregiver does not meet the child or young adult's needs for safety, permanency, and well-being;

(e) During every regular case review described in Child Welfare Policy I-B.3.1, "Developing and Managing the Case Plan" OAR 413-040-0000 to 413-040-0032; and

(f) No more than 30 calendar days prior to a court or administrative review hearing.

(3) When a child or young adult is placed with a relative or person with a caregiver relationship, The Department reviews whether the substitute caregiver is able to best meet the child or young adult's needs for safety and well-being as described in Child Welfare Policy I-E.3.1, "Placement Matching" OAR 413-070-0613 to 413-070-0640.

(4) The caseworker must document in the Department's information system:

(a) The date of the review required under section (1) of this rule;

(b) The names of each individual who participated in the review:

(c) Whether and how a child or young adult's placement with a relative or person with a caregiver relationship has been met and whether siblings have been placed together;

(d) Recommended actions; and

(e) Any additional actions the Department will take to place a child or young adult, and his or her siblings, if the siblings are also in substitute care, with a relative or person with a caregiver relationship in a placement resource that meets the child's needs for safety, permanency, and well-being.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.119, 418.005, 419A.004, 419B.192
Hist.: SOSCF 19-1998(Temp), f. & cert. ef. 10-30-98 thru 4-28-99; SOSCF 6-1999, f. & cert. ef. 4-29-99; SOSCF 3-2001(Temp) f. & cert. ef. 1-24-01 thru 7-22-01; SOSCF 34-2001, f. 6-29-01 cert. ef. 7-1-01; CWP 10-2010, f. & cert. ef. 7-1-10

413-070-0087

Opportunity for Ongoing Connection and Support

(1) The caseworker must assess a relative's interest and appropriateness in maintaining family relationships and cultural connections with a child or young adult when the relative is not a placement resource, based on the relative's ability to:

(a) Meet the safety, permanency, and well-being needs of the child or young adult; and

(b) Provide appropriate ongoing support.

(2) When a relative or person with a caregiver relationship meets the criteria described in section (1) of this rule, the caseworker must provide the child or young adult's relative, including a relative who resides outside the state of Oregon, with ongoing opportunities to develop and maintain family relationships and cultural connections with the child or young adult that support the child or young adult's safety and well-being while the child or young adult remains in substitute care.

(3) The parameters of a relative's contact with and support of the child are documented in the Department's information system.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.119, 418.005, 419A.004, 419B.192
Hist.: SOSCF 19-1998(Temp), f.& cert. ef. 10-30-98 thru 4-28-99; SOSCF 6-1999, f. & cert. ef. 4-29-99; SOSCF 3-2001(Temp) f. & cert. ef. 1-24-01 thru 7-22-01; SOSCF 34-2001, f. 6-29-01 cert. ef. 7-1-01; CWP 10-2010, f. & cert. ef. 7-1-10

Placement of Indian Children

413-070-0100

Policy Statement and Purpose of Rules

(1) On November 8, l978, under its power over Indian affairs and its "responsibility for the protection and preservation of Indian tribes and their resources," Congress enacted the Indian Child Welfare Act (the Act or ICWA) of 1978. The Act was passed because Congress found that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children" by courts and welfare departments and placed in non-Indian homes and institutions.

(2) The Act sets forth that it is the policy of this nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families. Further, placement of such children will be made in foster or adoptive homes which will reflect the unique values of Indian culture.

(3) This remedial aspect of the Indian Child Welfare Act establishes the manner in which the administrative rules will guide the Department of Human Services (DHS) in adhering to the letter and spirit of the Act.

Stat. Auth.: ORS 418.005
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 41-2001, f. 12-31-01, cert. ef. 1-1-02

413-070-0110

Legislative Authority

These rules are promulgated pursuant to the statutory authority granted to the Department of Human Services (DHS) in ORS 418.005.

Stat. Auth.: ORS 418.005
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 41-2001, f. 12-31-01, cert. ef. 1-1-02

413-070-0120

Definitions

To ensure total compliance, it is important to remember that when proceedings involving an Indian child invoke this Act, terms including, but not limited to foster care, termination of parental rights, pre-adoptive and adoptive placement have the meaning stated in the Act, not the meaning as established by Oregon law.

(1) "Act" or "ICWA" means the Indian Child Welfare Act.

(2) "Adoptive Placement" is the permanent placement of an Indian child for adoption and includes any action which results in a decree of adoption. Such action includes voluntary relinquishment of a parent's rights.

(3) "Agency" means the Department of Human Services (DHS).

(4) "Diligent Search" means that, at a minimum, there will be contact with the child's tribal social service program, a search of all county or state listings of available Indian homes, and contact with local, regional, and nationally known Indian programs that have placement resources available for Indian children.

(5) "Extended Family" is defined by the law or custom of the Indian child's tribe. In the absence of law or custom, it shall be a person 18 or over who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin or stepparent.

(6) "Foster Care Placement" is any action removing or which could result in the removal of a child from his/her parent or Indian custodian (such as court-ordered supervision in the home) for placement in foster care or institution or with a guardian, where the parent(s) or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.

(7) "Indian" is any person who is a member of or eligible for membership in an Indian tribe or who is an Alaskan native and a member of a Regional Corporation as defined in 43 USC§1606.

(8) "Indian Child" is any unmarried person under age eighteen who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

(9) "Indian Child Welfare Act Manager (ICWA Manager)" staff who monitors DHS Child, Adult and Family Services (CAFS) policy and procedures towards compliance with the Indian Cihld Welfare Act; investigates complaints of non-compliance from Tribes; provides consultation to caseworkers relating to law and administrative rules; and provides ICWA materials and training."

(10) "Indian Child's Tribe" is the Indian tribe in which an Indian child is a member or eligible for membership. In the case of an Indian child who is a member or eligible for membership in more than one Indian tribe, it is the Indian tribe with which the Indian child has the most significant contacts.

(11) "Indian Custodian" is any Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.

(12) "Indian Organization" is any group, association, partnership, corporation, or legal entity owned or controlled by Indians or a majority of whose members are Indians, such as an Indian Child Welfare Committee.

(13) "Indian Tribe" is any Indian tribe, band, nation or organized group or community of Indians who are recognized as eligible for services provided to Indians by the Secretary of the Interior because of their status as Indians, including any Alaska native village as defined in 43 USC§1606, and any tribe whose federal relationship has been terminated by congressional action.

(14) "Involuntary Proceeding" is any action removing a child from a parent/Indian custodian and such parent/Indian custodian cannot have the child returned upon demand.

(15) "Judicial Hours" means the number of hours a court is available to hold a hearing. Legal holidays and weekends do not count as judicial hours.

(16) "Parent" is any biological parent or parents of any Indian child or any Indian person who has lawfully adopted an Indian child. This includes adoption by tribal law or custom. It does not include unwed fathers where paternity has not been established or acknowledged.

(17) "Pre-Adoptive Placement" is the temporary placement of an Indian child after termination of parental rights in a foster home or institution prior to or instead of an adoptive placement. This definition includes, but is not limited to, the following: placement of the child in a foster home prior to the selection of an adoptive family; placement of a child in a foster home which becomes the child's adoptive home once the child is legally free; and placement of the child in an adoptive home which is used as a foster home until the child is legally free.

(18) "Reservation" means Indian country as defined in 18 USC§1151, and any lands not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation.

(19) "Secretary" means the Secretary of the Interior.

(20) "Termination of Parental Rights" is action which results in the termination of the parent-child relationship.

(21) "Tribal Court" is the court which holds jurisdiction over Indian child custody proceedings and is either a Court of Indian Offenses, a court established and operated under code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child custody proceedings.

(22) "Voluntary Proceeding" is any action in which a parent/Indian custodian has voluntarily given custody of his/her child to another and such voluntary action does not prohibit the parent/Indian custodian from regaining custody of the child at any time.

Stat. Auth.: ORS 418.005
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 41-2001, f. 12-31-01, cert. ef. 1-1-02

413-070-0130

Applicability

(1) General:

(a) The Indian Child Welfare Act affects all placements of Indian children taking place after May 8, l979, and also applies to changes or possible changes in placement of Indian children already under DHS authority as a result of a proceeding prior to May 8, l979;

(b) The Act does not cover the full range of procedures involved in a juvenile court proceeding; where it is silent, the usual state court procedure should be followed. Under constitutional law, the federal Act takes precedence where it conflicts with state law. When the state law affords a higher standard of protection of the rights of the parents or Indian custodian, it applies.

(2) Exceptions. Child custody proceedings not covered by the Act are:

(a) An award of custody to one of the parents in a divorce proceeding;

(b) A placement based upon an act which, if committed by an adult, would be a crime (unless the juvenile delinquency proceeding results in the termination of a parental relationship).

(3) Although initial placements of an Indian child based upon a law violation may not be covered by the Act, subsequent placements resulting from petitions alleging dependency, or status offenses that can only be committed by a minor (runaway, beyond control, etc.), are covered by the Act.

Stat. Auth.: ORS 418.005
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 41-2001, f. 12-31-01, cert. ef. 1-1-02

413-070-0140

Agency Authority

Once it is found that an Indian child is involved, and the tribe or tribes which have an interest have been determined, the authority of the agency must be established. In some instances, the agency will have no authority to become involved in the case:

(1) Exclusive Tribal Jurisdiction. Indian tribes have exclusive jurisdiction over child custody proceedings involving children who reside or have a permanent home on an Indian reservation. The only exception is where Congress has transferred jurisdiction over family welfare matters to a state and the tribe in that state has not completed an administrative process to reassume exclusive jurisdiction.

NOTE: In Oregon, only the Warm Springs and the Burns Paiute Tribes have such exclusive jurisdiction; however, it is important to check to see if other tribes have reassumed jurisdiction.

(2) Tribal Court Ward. The agency has no authority in cases involving an Indian child who is a ward of a tribal court. Agency staff shall ask the child's parents/Indian custodian if the child is a ward of the tribal court. If there is reason to believe that the child has previously resided or been domiciled on the reservation, the service worker shall contact the tribal court to determine whether the child is a ward of that court. If so, except as follows, the agency has no authority over the child.

(3) Emergency Removal -- Limited Authority. Notwithstanding sections (1) and (2) of this rule, if an Indian child who resides or has a permanent home on any Indian reservation is off the reservation and is in danger of suffering imminent physical damage or harm, the agency has authority to take custody regardless of whether the child is a ward of the tribal court or the tribe has exclusive jurisdiction. This authority is subject to the requirements set forth in OAR 413-070-0150.

Stat. Auth.: HB 2004
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-070-0150

Emergency Removals

(1) The agency can take emergency protective custody of any Indian child (who resides or is domiciled on a reservation, but who is temporarily located off the reservation) regardless of the jurisdictional status of his or her tribe as long as the following criteria are met:

(a) The child is not located on an Indian reservation where the tribe has exclusive jurisdiction over child custody matters; (In Oregon, at present, only the Warm Springs and Burns Paiute tribes have such jurisdiction.) and,

(b) The child is in danger of imminent physical damage or harm.

(2) Whenever a child is taken into protective custody, agency staff shall inquire as to the child's racial or ethnic background, unless circumstances do not permit such routine inquiry. (In such cases, once the child is taken into protective custody, the service worker shall take the required steps to determine racial/ethnic category, as described in OAR 413-070-0170(1);)

(3) If there is reason to believe the child may be Indian, and in order to determine if the tribe has exclusive jurisdiction, agency staff shall immediately inquire as to the child's residence or domicile (since the child may be a resident of or domiciled on a reservation but is temporarily off the reservation). If the child is believed to be Indian, efforts shall be made to place the child during emergency custody in a setting which follows the placement priorities established by the Indian Child Welfare Act or the tribe and set forth in OAR 413-070-0220.

(4) Emergency custody shall be terminated when:

(a) Emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the child; or

(b) The appropriate tribe exercises jurisdiction over the case.

(5) In order to terminate an emergency removal or placement, the agency shall return the child to his or her parent, or the service worker shall initiate an expeditious transfer of jurisdiction to the appropriate Indian tribe. If termination of an emergency removal or placement is not possible, the agency shall obtain a court order authorizing continued protective custody within 24 judicial hours of the removal or placement. The petition filed in such proceeding must contain the following, in addition to that information required by state law:

(a) The name, age, tribal affiliation(s) and last known address of the Indian child;

(b) The name and address of the child's parent(s) and/or Indian custodian(s), if any, and tribe. If unknown, the agency shall provide a detailed explanation of efforts made to locate them;

(c) If known, whether the residence or domicile of the parent(s), Indian custodian(s) or child is on or near a reservation, and which reservation;

(d) A specific and detailed account of the circumstances which led the agency to conclude that the child would suffer imminent physical damage or harm;

(e) A specific plan of action the agency is following, including services provided, to restore the child to his/her parent(s) or Indian custodian(s), or to transfer the child to the jurisdiction of the appropriate Indian tribe.

(6) Where the danger to the Indian child persists and the child's tribe does not have exclusive jurisdiction and will not request transfer of the case to its court, the service worker shall, in consultation with the child's parent(s) and tribe, if known, explore available placement resources which meet the placement requirements in OAR 413-070-0220.

Stat. Auth.: HB 2004
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-070-0160

Remedial Services

(1) Subsequent to an investigation and prior to a determination of the need for out-of-home placement services, the service worker shall offer the provision of services of a remedial nature designed to rehabilitate and prevent the breakup of Indian families to the same extent that they are available to non-Indian families when eligible.

(2) To reduce the potential for cultural bias when evaluating home and family conditions and making decisions affecting Indian children and families, the agency shall involve Indian tribes and organizations at the earliest possible point in intervention. Services in the community specifically designed for Indian families are to be used where available, including resources of the extended family, the tribe, urban Indian organizations, tribal family service programs and individual Indian caregivers. Individual Indian caregivers may include medicine men and other individual tribal members who may have developed special skills that can be used to help the child's family succeed.

(3) Prior to initiating a petition before a state court for foster care placement or termination of parental rights, the service worker shall undertake active efforts to provide remedial services and rehabilitative programs to the family designed to prevent its breakup.

(4) In order to demonstrate that active efforts have been made, the service worker must:

(a) Assure that due consideration has been given to the cultural needs and values of the family and that resources have been diligently sought to provide family services. Such assurances may be demonstrated by the following:

(A) Making direct contacts with the family, including the parent or Indian custodian, the child and members of the extended family, if known or available;

(B) Making an evaluation of the circumstances of the family taking into account the prevailing social and cultural conditions and way of life of the child's tribe and/or the Indian community;

(C) Intervening in the parent-child or Indian custodian-child relationship only when intervention is supported by relevant prevailing Indian social and cultural standards regarding intervention into familial relationships by nonfamily members;

(D) Providing a plan formulated with direct collaboration of the parent or Indian custodian, taking into account prevailing social and cultural conditions, designed to effectively address and eliminate problems destructive to the family involving:

(i) Extended family members;

(ii) Tribal social service programs;

(iii) Tribal organization programs aimed at preventing family breakup;

(iv) Traditional tribal community therapy practices, administered by Indian practitioners, where available and applicable. This includes spiritual leaders, medicine men, and other individual tribal members who have developed special skills that can be used to help the child's family succeed.

(E) Providing time and resources in prevention of family breakup in equal measure to time and resources devoted by the agency to all families;

(F) Assuring that while efforts at prevention of family breakup are proceeding, the parent or Indian custodian and the child are encouraged to maintain an ongoing familial relationship in ways that are socially and culturally compatible with the values of the child's Indian community;

(G) Having a plan that encourages maintenance of the Indian child in his/her own familial residence except when to do so would result in serious physical or emotional harm;

(H) Providing that where the Indian child is of sufficient age, he or she is involved in the design and implementation of the plan to prevent family breakup.

(b) Demonstrate to the court that such efforts were made prior to the filing of the petition, including an account of the efforts made and why they failed.

Stat. Auth.: HB 2004
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-070-0170

ICWA Procedures at Initial Contact

This section presents the initial steps to follow in providing services and taking legal action for child custody proceedings covered by the ICWA.

(1) Determination of Indian Status:

(a) Oral inquiry shall be made in every case which involves or could involve changes in custody to determine whether the case involves an Indian child. Agency staff shall routinely request racial/ethnic data of parents or guardian by reading aloud from the intake form the racial/ethnic categories for the client's self-identification. If the child's parents are unavailable or unable to provide a reliable answer regarding the Indian heritage of their child, agency staff shall consider the following in determining a child's Indian heritage: A thorough review of all documentation in the file (including contact with previous caseworkers, if any);

(A) Close observation of the child's physical characteristics and the physical characteristics of parents, as well as other siblings or relatives accompanying the child;

(B) Consultation with relatives/collaterals providing information which suggests the child/parent may be Indian;

(C) Examination of any other information bearing on the determination of the child's Indian heritage, such as communication from other sources including Indian tribes and organizations;

(b) If, in following the above steps, information obtained suggests the child may be of Indian heritage but the tribe cannot be determined, staff shall contact the agency ICWA Manager to determine if:

(A) The birth place of the child/parent, or the current/former residence of the child/parent is known to be a common residence of Indian families;

(B) The surname of the child/parent is one which is known to be common among members of Indian tribes.

(2) Determination of Indian Tribe. If it appears the child is of Indian heritage, the service worker must determine the tribe in which the child is a member or eligible for membership. Agency staff shall ask the child's parents or custodian tribe(s) the child may be affiliated. If this inquiry does not provide the necessary information, agency staff shall, at a minimum, contact the following:

(a) Relatives and extended family members;

(b) Indian tribes and organizations in Oregon, such as the Commission on Indian Services;

(c) The appropriate Bureau of Indian Affairs (BIA) Office.

(3) ICWA Eligibility. For a child to be considered an Indian under the Act, the child must be:

(a) An unmarried person under the age of eighteen; and

(b) A person who is either: a member of an Indian tribe, or eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe;

(c) In order for the worker to determine if the child is a tribal member or eligible for membership, the tribe or possible tribes identified must be contacted.

(4) Tribal Membership:

(a) A tribal determination of membership is conclusive because each tribe defines the criteria for membership in the tribe and determines who meets those criteria. Inquiries to the tribe must be sent "Return Receipt Requested" to a membership committee, an enrollment clerk, or individual who is accustomed to responding to questions about tribal membership. If the tribe does not respond, agency staff shall contact the tribe by telephone. The service worker may request that all information given be treated confidentially.

(b) If the child is a member of one tribe and eligible for membership in others, the tribe of actual membership is the child's tribe. If the child is not now a member of a tribe, the service worker must ascertain whether the child is eligible for membership and is the biological child of a member of an Indian tribe. To do this, the service worker shall:

(A) Ask the child (if old enough to respond);

(B) Ask the parent(s) or relatives, including in-laws, as appropriate;

(C) Ask the tribe.

(5) BIA Assistance. If the tribe does not respond to a letter sent "Return Receipt Requested" and cannot be reached by phone, the service worker shall write or call the Bureau of Indian Affairs Area (local) Office and the ICWA Manager for assistance.

(6) Out-of-State Tribes. When an Indian child is a member of or eligible for membership in a tribe located in another state, the Act still applies and all applicable provisions, including provisions governing notification of the tribe, must be followed.

(7) Multi-Tribal Membership:

(a) The child may be eligible for membership in more than one tribe. In that case the Indian child's tribe is the tribe with which the child has the most significant contacts. In considering with which tribe the child has the most significant contacts, the service worker shall investigate:

(A) The length of residence on or near the reservation of each tribe and the frequency of contacts with each tribe;

(B) The child's participation in activities of each tribe;

(C) The child's fluency in the language of each tribe;

(D) Whether there has been a previous adjudication with respect to the child by a court of one of the tribes;

(E) Residence on or near one of the tribes' reservation of the child's relatives;

(F) Tribal membership of custodial parent or Indian custodian;

(G) Interest asserted by each tribe in response to the notice specified in OAR 413-070-0210.

(b) Documentation of such investigation shall be submitted to the court so that it can consider the comparative interests of each tribe in the child's welfare in making its decision on the matter.

(8) Enrollment of Indian Clients. If the child is not a member of his or her tribe, but is applying to become a member, the service worker shall proceed as though the child is a member and follow the requirements of the Act. Agency staff shall assist the family in filling out and returning required paperwork to the appropriate tribe and, as necessary, counsel parents hesitant to enroll a child by emphasizing the positive benefits of tribal enrollment/membership.

(9) ICWA Not Applicable. Once determined, tribal status should be clearly documented in the case record, along with the date and source of documentation. An Indian child who is officially determined by the tribe not to be a member nor eligible for membership is not subject to the requirements of the Indian Child Welfare Act. In such cases, agency staff shall:

(a) Document in the case record steps taken to determine the child's Indian/tribal ancestry and the tribe's written statement declaring the child ineligible for membership;

(b) Incorporate in any court hearing the tribe's written statement declaring the child ineligible for membership.

(10) Cultural Heritage Protection. In instances where the ICWA does not apply, but the child is biologically an Indian or considered an Indian by the Indian community, the agency shall respect the child's right to participate in the culture of origin in case planning, particularly if such child is identifiably Indian by physical features and/or social relationship.

Stat. Auth.: ORS 418.005
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 41-2001, f. 12-31-01, cert. ef. 1-1-02

413-070-0180

Tribal-State Agreement

These rules may be superseded by an agreement signed between the state and a particular tribe. Such agreement shall be available in the Assistant Director's Office for Children, Adult and Families.

Stat. Auth.: ORS 418.005
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 41-2001, f. 12-31-01, cert. ef. 1-1-02

413-070-0190

Documentation of Serious Emotional or Physical Damage to Child Prior to Removal

(1) Prior to removal of the child from a parent/Indian custodian and initiation of court proceedings, the agency's records shall contain documentation demonstrating that:

(a) It is likely that the conduct or condition of the parents will result in serious physical or emotional harm to the child; and

(b) If it is likely that such harm will occur, efforts have been made to counsel and change the parents' behavior and have not worked.

(2) In making such a determination, agency staff shall relate indications of the likelihood of serious emotional or physical damage to particular conditions in the home, showing a causal relationship between the conditions and the serious damage which is likely to result to the child. For example, it is not adequate to show that the parent abuses alcohol. It is necessary to show how, because of alcohol abuse, the parent may cause emotional or physical damage to the child.

Stat. Auth.: HB 2004
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-070-0200

Element of Proof

(1) Foster Care Placement. In order to ask the court to authorize the placement of the child in foster care, the agency must demonstrate to the court by clear and convincing evidence, including the testimony of one or more qualified expert witnesses, that the child's continued custody with the child's parents or Indian custodian is likely to result in serious emotional or physical damage to the child.

(2) Termination of Parental Rights. In order to ask the court to terminate parental rights, the agency as petitioner must show the court by evidence beyond a reasonable doubt, including the testimony of one or more qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

(3) Qualified Expert Witnesses. The agency recognizes that persons with the following characteristics are most likely to meet the requirements of a qualified expert witness for purposes of Indian child custody proceedings:

(a) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and child rearing practices;

(b) A lay person having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and child rearing practices within the Indian child's tribe;

(c) A professional person having substantial education and experience in the area of his or her specialty along with substantial knowledge of prevailing social and cultural standards and child rearing practices within the Indian community.

(d) This list is not meant to be exhaustive or limited in any fashion. The service worker should enlist the assistance of the Indian child's tribe or the ICWA Manager in locating persons qualified to serve as expert witnesses. The BIA is also required to provide this assistance.

Stat. Auth.: ORS 418.005
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 41-2001, f. 12-31-01, cert. ef. 1-1-02

413-070-0210

Involuntary Proceedings

(1) Notice. Except for emergency placements made pursuant to OAR 413-070-0200, agency staff shall not request a court proceeding to authorize foster care placement of an Indian child until the following time frames have been observed:

(a) Not less than ten days after receipt of notice by the parent or Indian custodian, or thirty days after receipt of notice by the parent or Indian custodian if an additional twenty days has been requested by the parent/Indian custodian to prepare for the proceeding;

(b) Not less than ten days after the Indian child's tribe has received notice, or thirty days after the Indian child's tribe has received notice if an additional twenty days has been requested to prepare for the proceeding;

(c) Not less than fifteen days after the receipt of the notice by the Secretary of the Interior.

(2) The service worker shall be responsible for providing notice to the parties listed below, and for notifying the court of the agency's requirements, and requesting a hearing not be scheduled until the time limits in section (1) of this rule have been met:

(a) Notice to Parent or Indian Custodian. The parent of an Indian child shall always receive notice. An Indian custodian, if any is involved, should also receive notice;

(b) Notice to Tribe. Whenever an Indian child's parent or Indian custodian are entitled to notice, then the tribe is entitled to notice also. The tribe entitled to notice is the tribe in which the child is a member or eligible for membership. If the child is affiliated with or eligible for membership in more than one tribe, notice shall be sent to all potential tribes since the court can permit intervention by more than one tribe;

(c) Notice to BIA. If the identity or location of a potentially interested Indian party to the proceeding cannot be determined, agency staff shall notify the local Bureau of Indian Affairs Office which is given fifteen days to locate and notify that party.

(3) Service of Notice. Notice can be given by personal service (handing it directly to the person), if possible, but shall always be given by registered mail, return receipt requested.

(4) Form of Notice:

(a) If a tribe has declined jurisdiction, it still retains the right to participate as an interested party or to intervene at any point in the proceeding. If the tribe intervenes, it is a party to the proceeding and has the same rights to notice of all hearings, motions, etc., related to the case, the right to participate fully in such hearings and assert its interest, the right of access to court records, the right to retain counsel if it chooses, and the right to appeal. Therefore, even if a tribe has declined jurisdiction, notice to the tribe's designated agent (or the tribal court if no agent has been designated) of every proceeding affecting their tribal member shall be given. Notice shall contain, at a minimum, the following:

(A) The name of the Indian child and his or her tribal affiliation;

(B) A copy of the petition, complaint or other document by which the proceeding was initiated;

(C) The name of the petitioner and the name and address of the petitioner's attorney, if any;

(D) A statement of the right of the biological parent(s) or Indian custodian(s) to participate and the Indian child's tribe to intervene in the proceeding;

(E) A statement that if the parent(s) or Indian custodian(s) are unable to afford counsel, counsel may be appointed by the court to represent them;

(F) A statement of the right of the biological parent(s) or Indian custodian(s) and the Indian child's tribe to have, on request, twenty days to prepare for the proceedings;

(G) The location, mailing address and telephone number of the court;

(H) A statement of the right of the parent(s) or Indian custodian(s) or the Indian child's tribe to petition the court to transfer the proceeding to the Indian child's tribal court;

(I) The potential legal consequences of an adjudication on future custodial rights of the parent(s) or Indian custodian(s);

(J) A statement that since child custody proceedings are usually conducted on a confidential basis, tribal officials should keep confidential the information contained in the notice concerning the particular proceeding and not reveal it to anyone who does not need the information in order to exercise the tribe's rights under the Act.

(b) Agency staff shall file with the court a copy of each notice sent pursuant to this section together with any return receipts or other proofs of service.

Stat. Auth.: HB 2004
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-070-0220

Placement of Indian Children

(1) General. Agency staff shall make a diligent attempt to find a suitable placement within priorities described below before considering a non-preference placement. A diligent search for an appropriate placement includes, at a minimum, contact with the child's tribal social services department, a search of Oregon state and county listings of available Indian homes, and contact with other Indian tribes and Indian organizations with available placement resources.

(2) Tribal Placement Priorities. In determining the appropriate placement for an Indian child, the service worker shall contact the child's tribe to see if the tribe has established by resolution an order of placement preference different from those described below and/or has any placement resources.

(3) Foster or Preadoptive Placements:

(a) In any foster care or preadoptive placement of an Indian child, the child shall be placed in the least restrictive setting which most approximates a family and in which the child's special needs, if any, can be met. The child shall also be placed in reasonable proximity to his or her home, except as provided in subsection (7)(b) of this rule;

(b) In considering foster placement for a child, agency staff shall follow the placement priorities below unless the Indian child's tribe changes the order of preference by resolution; or, in absence of such tribal resolution, the court modifies the order of preference by a showing of good cause:

(A) A member of the Indian child's extended family;

(B) A foster home licensed, approved, or specified by the Indian child's tribe;

(C) An Indian foster home licensed or approved by an authorized non-Indian licensing authority;

(D) An institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.

(4) Adoptive Placements. Where no different order of preference has been established by the child's tribe for adoptive placement, the agency shall, in the absence of the court's determination that good cause to the contrary exists, give preference to placing the child with:

(a) A member of the child's extended family;

(b) Other members of the Indian child's tribe; or

(c) Other Indian families.

(5) Change of Placement. If an Indian child in a foster or preadoptive placement is to be moved from one placement setting to another; or, if the foster family moves (requiring a change in placement) the placement preferences outlined above must be followed, unless the child is returned to the parent or Indian custodian from whose custody the child was originally removed. The service worker shall notify the parent and/or Indian custodian and the child's tribe in writing prior to a change in placement or before the foster family moves.

(6) Disrupted Adoptive Placements. If a final decree of adoption is vacated or set aside or the adoptive parent(s) voluntarily consent to the termination of their parental rights, a biological parent or prior Indian custodian may petition for a return of custody. In voluntary relinquishments, the service worker shall notify the parent and/or Indian custodian by registered mail at their last known address of the disruption in the adoption and their right to petition for a return of custody. The notification to the parent of the right to petition shall include a statement that the petition will be granted unless it is established by a court of law that return of custody is not in the best interest of the child. In the event that custody is not returned to the parent or prior to such return custody, any subsequent placements shall follow the placement priorities outlined in sections (3) or (4) of this rule as appropriate. In instances where parental rights have been terminated and the adoption has been disrupted, the agency may elect to notify the parent and/or Indian custodian of their right to petition the court for a return of custody.

(7) Records of Placement:

(a) The agency shall maintain a written record of each placement of each Indian child and of efforts to comply with the preferences listed above. This record shall be maintained on forms separate from the court report and shall contain, at a minimum, the petition or complaint, all substantive orders entered during the proceeding, and the complete record of the placement determination;

(b) Where the placement does not meet the preference priorities set out above, the efforts to find suitable placement within those priorities shall be recorded and documented in detail. Documentation shall also be provided showing that the placement chosen is in the least restrictive setting possible, meets the child's special needs, and as much as possible, in cases of foster care placement, is close to the child's own home;

(c) At any time, upon the request of the Indian child's tribe or the Department of the Interior, the agency shall make available records of every foster care, preadoptive and adoptive placement of each Indian child maintained by the agency.

Stat. Auth.: HB 2004
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-070-0230

Adult Adoptees

(1) An adopted Indian person who is age eighteen or older may apply to the court that entered the final adoption decree for information on his or her biological parents' tribal affiliation and any other information necessary to protect any rights flowing from the tribal relationship.

(2) An adopted Indian person may also request from the Secretary of the Department of Interior any information necessary for enrollment in his or her tribe or for information determining any rights or benefits associated with tribal membership. Where the Secretary has an affidavit requesting anonymity from the biological parent(s) of the Indian person, the Secretary shall certify whether the person is entitled to enrollment under criteria established by the tribe.

Stat. Auth.: HB 2004
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-070-0240

Voluntary Proceedings

(1) DHS Can Accept Voluntary Placements. The agency can accept voluntary custody of any Indian child based upon consent of the Indian parent or Indian custodian, but shall not accept such consent unless:

(a) The child is more than ten days old;

(b) The voluntary consent is given in writing and recorded before a judge in the appropriate jurisdiction;

(c) The consent is accompanied by a judge's certificate which meets the requirements listed in paragraph (2); and

(d) The agency files a petition with the juvenile court pursuant to ORS 419B.100.

(2) Court Hearing on Consent. The service worker shall request a hearing in circuit court to obtain a voluntary consent. The service worker shall assure before the proceeding occurs that the court hearing will be recorded and that the parent/Indian custodian's written consent is accompanied by a certificate signed by the judge ensuring that the terms and consequences of the consent were:

(a) Fully explained in detail and fully understood by the parent or Indian custodian;

(b) Fully explained in English, or interpreted into a language understood by the parent/Indian custodian.

(3) Content of Consent Form. The consent form signed by a parent/Indian custodian who voluntarily agrees to placement shall, at a minimum, contain:

(a) The name and birthdate of the Indian child;

(b) The name of the child's tribe;

(c) The child's enrollment number or other indication of the child's membership in the tribe;

(d) The name and address of the consenting parent/Indian custodian;

(e) The name and address of the prospective parents, if known, for substitute care placements;

(f) The name and address of the person or agency through whom placement was arranged, if any, for adoptive placement.

(4) Request for Anonymity. If a parent who has voluntarily given custody of his or her child to the agency requests anonymity, the service worker shall discuss the situation with the parent and describe the advantages of working cooperatively with the tribe. If the parent still evidences a desire for anonymity, the service worker shall contact the ICWA Manager who will:

(a) Contact the tribe to determine if a tribal system exists for keeping child custody matters confidential;

(b) Meet with the parent and service worker to document the parent's reasons for requesting anonymity and to explain the Act's requirement for contacting the tribe in order to learn if there are tribal placement preferences and resources;

(c) Should a parent still request anonymity, the ICWA Manager or service worker shall tell the parent that the agency may not be able to guarantee that such request will be followed, but that it will be taken into consideration. The service worker must then document the parent's request for anonymity and advise the court that such request must be provided when the child's adoption records are mailed to the Secretary of the Interior.

(5) Voluntary Foster Care:

(a) Placement Preferences to Follow. Indian children who have voluntarily come into substitute care shall be placed according to the preference priorities outlined in OAR 413-070-0220.

(b) Withdrawal of Consent. The parent/Indian custodian may withdraw consent either orally or in writing at any time. If consent is withdrawn no reason need be stated, no evidence produced, and no hearing need be conducted. The service worker shall:

(A) Except as provided in paragraph (c) of this rule, immediately return the child to the parent/Indian custodian; and

(B) Notify the court that consent has been withdrawn and the child has been returned to parental custody.

(c) Initiation of Protective Service Custody. If the service worker believes that returning custody of the child to the parent/Indian custodian would place the child in imminent danger or harm, the following should occur:

(A) Service worker shall immediately initiate further proceedings before the juvenile court and secure an order from the court authorizing the agency to retain custody of the child;

(B) Where court proceedings for protective custody are initiated and the child is not returned to a parent upon withdrawal of consent, the service worker shall notify the child's tribe of this decision;

(C) All rules regarding involuntary proceedings shall be followed.

(d) Changes in Placement Must Follow ICWA. Whenever an Indian child is removed from a foster care home or institution for the purpose of further foster care, preadoptive or adoptive placement, such placement shall be in accordance with the ICWA unless the child is being returned to the parent or Indian custodian from whose custody the child was originally removed.

(6) Voluntary Adoptive Placement:

(a) Voluntary Termination of Parental Rights or Relinquishment. If the parent of an Indian child wishes to consent to the termination of his or her parental rights, and free the child for adoption, the service worker:

(A) Shall arrange to have relinquishment documents signed which meet the requirements of sections (1), (2), and (3) of this rule;

(B) Shall ensure that the relinquishment is fully understood by the parent and that it is not taken when the parent is under duress since the relinquishment and the adoption could be set aside if the court finds the relinquishment was obtained through fraud or duress.

(b) Placement Preferences to Follow. Placement preferences outlined in OAR 413-070-0220 shall be followed in the voluntary adoptive placement of an Indian child;

(c) Withdrawal of Consent. A voluntary consent to termination of parental rights or to the adoption of an Indian child may be withdrawn for any reason at any time prior to the entry of the final decree of termination or adoption, as the case may be. Again, no reason nor evidence is needed. The placing agency, when notified, must return the child to the parent/Indian custodian as soon as practicable. Where no placing agency is involved, the court is responsible for notifying the family with whom the child has been placed that consent was withdrawn and the child must be returned to the parent or custodian;

(d) Protective Service Custody. If the parent voluntarily withdraws his or her consent to termination of parental rights, and the agency believes the child should not be returned to parental custody, the service worker can initiate a protective service custody proceeding with the court in order for the agency to retain custody of the child;

(e) Disruption of Foster Care Placement. When a foster care placement is changed prior to a termination or relinquishment, the agency shall notify the parent/Indian custodian and the tribe;

(f) Adoption Vacated or Set Aside. Whenever a final decree of adoption has been vacated or set aside, or the adoptive parent has voluntarily consented to the termination (relinquishment) of his or her parental rights, agency staff shall send a registered letter to the parent/Indian custodian stating the parent may petition the court for return of the child. The tribe shall also be notified of such changes or disruptions in adoptive placements.

Stat. Auth.: ORS 418.005
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 41-2001, f. 12-31-01, cert. ef. 1-1-02

413-070-0250

Invalidation of State Court Action

Any Indian child who is the subject of any action for foster care placement or termination of parental rights under state law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated provisions of the Act.

Stat. Auth.: HB 2004
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-070-0260

Full Faith and Credit

The United States, every state, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to Indian tribes.

Stat. Auth.: HB 2004
Stats. Implemented: 25 USC §1901
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

Placement of Refugee Children

413-070-0300

Purpose

These rules (OAR 413-070-0300 to 413-070-0380) prescribe conditions that must be met for the Department to remove a refugee child from home. These rules also establish the Refugee Child Welfare Advisory Committee and set the criteria for its operations and duties.

Stat. Auth.: ORS 418.005, 418.945
Stats. Implemented: ORS 418.005, 418.925 - 418.945
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 9-2007, f. & cert. ef. 5-1-07

413-070-0310

Definitions

(1) "Affected family members" means biological and legal parents, extended family members, and any person within the fifth degree of consanguinity to the child.

(2) "Child" means a person under 18 years of age.

(3) "Child's home" means the home from which the child is removed under the provisions of ORS 419B.150.

(4) "Department" means the Department of Human Services, Child Welfare.

(5) "Extended family member" means a person ordinarily recognized as the refugee child's parent by the custom of the child's culture, or a person 18 years of age or older who is the child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.

(6) "Foster parent" means a person who operates a home that has been approved by the Department to provide care for an unrelated child or young adult placed in the home by the Department.

(7) "Parent" means the biological or adoptive mother or the legal father of the child. A legal father is a man who has adopted the child or whose paternity has been established or declared under ORS 109.070, 416.400 to 416.465, or by a juvenile court. In cases involving an Indian child under the Indian Child Welfare Act (ICWA), a legal father includes a man who is a father under applicable tribal law. "Parent" also includes a putative father who has demonstrated a direct and significant commitment to the child by assuming or attempting to assume responsibilities normally associated with parenthood unless a court finds that the putative father is not the legal father.

(8) "RCWAC" means the Refugee Child Welfare Advisory Committee.

(9) "Refugee child" means, as defined by ORS 418.925, a person under 18 years of age who has entered the United States and is unwilling or unable to return to the person's country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular group or political opinion, or whose parents entered the United States within the preceding 10 years and are or were unwilling or unable to return to their country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, or membership in a particular group or political opinion:

(a) As used in this section, "persecution" means that harm or suffering will be inflicted upon the person in order to punish the person for possessing a particular belief or characteristic. "Persecution" does not include harm and suffering that is inflicted on persons generally by reason of civil or military strife in a country;

(b) As used in this section, "fear of persecution" means an apprehension or awareness, based on external objective facts, that the person will suffer persecution upon return to the person's country.

Stat. Auth.: ORS 418.005, 418.945
Stats. Implemented: ORS 418.005, 418.925 - 418.945
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 9-2007, f. & cert. ef. 5-1-07

413-070-0320

Placement of Refugee Children

(1) When it appears to the Department that a child who may be taken into custody under ORS 419B.150 or 419C.080 by the Department is a refugee child, the Department will make oral inquiry of the child or the parent concerning national origin and ethnic and cultural information relative to the child's status as a refugee child. For purposes of determining the child's status as a refugee child, the Department may consider a variety of information, including information from the following sources:

(a) Any extended family member;

(b) Refugee community resources (any group, association, partnership, corporation, or legal entity whose purpose is to represent the interests of a particular group or groups of refugees who have the same ethnic or minority heritage);

(c) The RCWAC;

(d) Federal immigration agencies;

(e) Refugee agencies; and

(f) Department records.

(2) As required by ORS 418.937, the Department will not remove a refugee child pursuant to ORS 419B.150, 419C.080, or 419C.088 unless:

(a) The Department has determined there is a safety threat and removal is necessary to prevent imminent serious emotional or physical harm to the child; and

(b) The provision of remedial or preventive services cannot manage the child's safety in the home.

(3) The Department will follow ORS 418.937 in making placement decisions for refugee children:

(a) The Department will consider the child's culture and tradition;

(b) Unless shown to be inappropriate and inconsistent with the best interests of the child, the Department will place the child with one or more of the following persons, listed in order of preference:

(A) Biological and legal parents;

(B) Extended family members who are 18 years of age or older;

(C) Members of the same cultural heritage;

(D) Persons with knowledge and appreciation of the cultural heritage of the child.

(4) The determination that one of the preferred placements is inappropriate and inconsistent with the best interests of the child must be based on one or more of the following reasons:

(a) The informed request of the child's parent, if the request is consistent with the stability, security and individual needs of the refugee child;

(b) The safety, medical, physical, or psychological needs of the child.

(5) When the Department has taken a refugee child into custody under ORS 419B.150, the Department will make diligent efforts to locate the child's affected family members for the purposes of placing the child, if possible, in one of the preferred placements.

Stat. Auth.: ORS 418.005, 418.945
Stats. Implemented: ORS 418.005, 418.925 - 418.945
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 9-2007, f. & cert. ef. 5-1-07

413-070-0340

Petition

As required by ORS 418.930 and 418.933:

(1) Within one working day of the removal of a refugee child from the child's home, the Department must file a petition with the juvenile court.

(2) In addition to the material required under ORS 419B.809 or 419C.255, the Department must include the following items in its petition:

(a) A specific and detailed account of the circumstances which led the Department to conclude that the child was in imminent danger of serious emotional or physical harm;

(b) Specific actions the Department is taking or has taken to alleviate the need for removal;

(c) Assurance that the Department has complied with the placement preferences of ORS 418.937; and

(d) Assurance that the Department is making or has made diligent efforts to locate and give notice to all affected family members and to the Refugee Child Welfare Advisory Committee of the pendency of the petition.

Stat. Auth.: ORS 418.005, 418.945
Stats. Implemented: ORS 418.005, 418.925 - 418.945
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 9-2007, f. & cert. ef. 5-1-07

413-070-0345

Notice

(1) When a refugee child is removed from home, in addition to the notice provided by the court of a hearing, the Department must notify all affected family members and the Refugee Child Welfare Committee of the pendency of the petition described in OAR 413-070-0340.

(2) The notice will be written in language understandable to the recipient.

(3) The notice will contain the child's name; the reason a petition was filed; and the time and place that the juvenile court will be considering the petition.

Stat. Auth.: ORS 418.005, 418.945
Stats. Implemented: ORS 418.005, 418.925 - 418.945
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; Renumbered from 413-070-0330 by CWP 9-2007, f. & cert. ef. 5-1-07

413-070-0350

Judicial Determination

As required by ORS 418.933(1), no refugee child shall remain out of the child's home for longer than five days unless there has been a judicial determination supported by clear and convincing evidence that:

(1) Preventive or remedial services provided by the Department have failed to alleviate the need for removal; and

(2) Return to the home will likely result in psychological or physical harm to the child.

Stat. Auth.: ORS 418.005, 418.945
Stats. Implemented: ORS 418.005, 418.925 - 418.945
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 9-2007, f. & cert. ef. 5-1-07

413-070-0360

Record of Care

The Department must maintain a case record for each refugee child in its care containing:

(1) The name, age, residence from which the child was removed, legal status, sex, and race of the child, and the accumulated length of time the child has spent in substitute care;

(2) The child's health and education records;

(3) The name, former residence, and health history of each parent and other information relating to the parent's ability to care for the child in the parent's home;

(4) The date of the child's intake and placement in substitute care and the name, race, occupation, and residence of the person with whom the child is placed;

(5) If applicable, the date of the child's adoption and the name, race, occupation, and residence of each adoptive parent;

(6) The date of the removal of the child to another home and the reason for removal;

(7) The date of termination of guardianship, if applicable;

(8) The history of the child, based on information that is known to the Department, until the child reaches 18 years of age, is legally adopted, or is discharged from the legal custody of the Department according to law;

(9) Documentation of the reasonable efforts made by the Department to reunite the child with his or her family, to comply with the placement preferences of ORS 418.937, to place the child in the least restrictive setting possible, and to place the child close to the child's own home and the child's school;

(10) Documentation of the child's status as a refugee child, including the source of information concerning the child's refugee status and the date the information was received by the Department;

(11) Any required demographic information; and

(12) Other documentation as required by Child Welfare Policies I-I.1, "Service Reporting" and I-I.2, "Narrative Recording".

Stat. Auth.: ORS 418.005, 418.945
Stats. Implemented: ORS 418.005, 418.925 - 418.945
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 9-2007, f. & cert. ef. 5-1-07

413-070-0370

Annual Report of Care

(1) As required by ORS 418.943, the Department will publish annually a report on refugee children in its care. The report will include, statewide and county information on legal status, living arrangement, age, sex, race, accumulated length of time in foster care, and other demographic information deemed appropriate. The report will also state the extent to which the Department has complied with ORS 418.925 to 418.945 and will include descriptions of the methods of compliance.

(2) The annual report will be sent to all members of the RCWAC no later than March 1 of each year.

Stat. Auth.: ORS 418.005, 418.945
Stats. Implemented: ORS 418.005, 418.925 - 418.945
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 9-2007, f. & cert. ef. 5-1-07

413-070-0380

Refugee Child Welfare Advisory Committee

(1) As required by ORS 418.941, the Department will establish an advisory committee known as the Refugee Child Welfare Advisory Committee (RCWAC). The RCWAC will perform the following tasks:

(a) Advise the Department on its implementation of ORS 418.925 to 418.945;

(b) Advise the Department in the identification, development, and certification of foster parents who meet requirements of ORS 418.925 to 418.945 for placement of refugee children, placing a special emphasis on locating homes maintained by refugees; and

(c) Advise the Department in developing training programs to insure the availability of culturally sensitive social work.

(2) Each person appointed to the RCWAC is subject to all confidentiality requirements and penalties as are employees of the Department.

(3) In addition to records of the juvenile court under ORS 418.941(3), members of the RCWAC have access to Department records that:

(a) Are pertinent to the care of an individual refugee child who is receiving care from the Department under the provisions of OAR 413-070-0300 to 413-070-0380; and

(b) The Department is authorized by law to provide to the RCWAC.

(4) The Department will work jointly with the RCWAC in the development and implementation of written bylaws or procedures that will specify all local procedures, duties, and tasks necessary for the RCWAC to fulfill the purpose described above.

(5) A maximum of 14 members will be appointed for a two-year renewable term and will serve at the pleasure of the Assistant Director for the Children, Adults and Families Division of the Department.

(6) The RCWAC will meet at least once every three months. Special meetings may be held to carry out required tasks.

(7) Members of the RCWAC receive no compensation for their services. Members of the RCWAC other than members in full-time public service may be reimbursed by the Department for their travel and necessary expenses incurred in the performance of their duties according to rates and procedures established by state management service cost reimbursement policy.

Stat. Auth.: ORS 418.005, 418.945
Stats. Implemented: ORS 418.005, 418.925 - 418.945
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 9-2007, f. & cert. ef. 5-1-07

Psychotrophic Medication Management

413-070-0400

Purpose

These rules, OAR 413-070-0400 to 413-070-0490, describe the responsibilities of the substitute caregiver and the Department when a child or young adult placed in substitute care by the Department is prescribed or administered psychotropic medication.

Stat. Auth.: ORS 109.675, 418.005, 418.517
Stats. Implemented: ORS 109.675, 418.005, 418.517
Hist.: SCF 3-1995, f. & cert. ef. 9-15-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 8-2007, f. & cert. ef. 5-1-07; CWP 7-2010, f. & cert. ef. 6-30-10

413-070-0410

Definitions

The following definitions apply to OAR 413-070-0400 to 413-070-0490:

(1) "Antipsychotic medication" means a medication, specified in class 28:16:08 by the American Hospital Formulary Service, used to treat psychosis and other conditions.

(2) "Assessment" means the determination of a child or young adult's need for mental health services through interviewing the child or young adult and obtaining all pertinent medical and psychosocial history information from the individual, family, and collateral sources. The assessment:

(a) Addresses the current complaint or condition presented by the child or young adult;

(b) Determines a diagnosis; and

(c) Provides treatment direction and individualized services and supports.

(3) "Child" means a person under 18 years of age.

(4) "Department" means the Department of Human Services, Child Welfare.

(5) "Designee" means a person whom the designator directly and immediately supervises or a person with equal or greater management responsibility than the designator.

(6) "Foster parent" means a person who operates a home that has been approved by the Department to provide care for an unrelated child or young adult placed in the home by the Department.

(7) "Licensed medical professional" means an individual who meets the criteria of both of the following subsections:

(a) The individual holds at least one of the following valid licensures or certifications:

(A) Physician licensed to practice in the State of Oregon;

(B) Nurse Practitioner certified by the Oregon State Board of Nursing under ORS 678.375; or

(C) Physician's Assistant licensed to practice in the State of Oregon.

(b) Is an individual whose training, experience, and competence demonstrate expertise in children's mental health, the ability to conduct a mental health assessment, and the ability to provide psychotropic medication management for children and young adults.

(8) "Medically accepted indication" means any use for a covered outpatient drug that is approved under the Federal Food, Drug and Cosmetic Act, recommended by the Drug Use Review Board, or the use of which is supported by one or more citations included or approved for inclusion in any of the following compendia:

(a) American Hospital Formulary Services drug information;

(b) United States Pharmacopoeia drug information or any successor publication;

(c) The DRUGDEX Information System; or

(d) Peer-reviewed medical literature.

(9) "Provider" means a person approved by a licensed private child-caring agency to provide care for a child or young adult, or an employee of a licensed private child-caring agency approved to provide care for a child or young adult.

(10) "Psychotropic medication" means medication, the prescribed intent of which is to affect or alter thought processes, mood, or behavior, including, but not limited to antipsychotic, antidepressant, and anxiolytic medication and behavior medications. The classification of a medication depends upon its stated, intended effect when prescribed because it may have many different effects.

(11) "Qualified mental health professional" means an individual who meets the requirements of both of the following subsections:

(a) Holds at least one of the following educational degrees:

(A) Graduate degree in psychology;

(B) Bachelor's degree in nursing and licensed by the State of Oregon;

(C) Graduate degree in social work;

(D) Graduate degree in a behavioral science field;

(E) Graduate degree in recreational, art, or music therapy; or

(F) Bachelor's degree in occupational therapy and is licensed by the State of Oregon.

(b) Whose education and experience demonstrates the competencies to:

(A) Identify precipitating events;

(B) Gather histories of mental and physical disabilities, alcohol and drug use, past mental health services, and criminal justice contacts;

(C) Assess family, social, and work relationships;

(D) Conduct a mental status examination;

(E) Document a multiaxial DSM diagnosis;

(F) Develop and supervise a treatment plan;

(G) Conduct a mental health assessment; and

(H) Provide individual, family, or group therapy within the scope of his or her practice.

(12) "Relative caregiver" means a person who operates a home that has been approved by the Department to provide care for a related child or young adult who is placed in the home by the Department.

(13) "Substitute care" means the out-of-home placement of a child or young adult who is in the legal or physical custody and care of the Department.

(14) "Substitute caregiver" means a relative caregiver, foster parent, or provider who is authorized to provide care to a child or young adult who is in the legal or physical custody of the Department.

(15) "Urgent medical need" means the onset of psychiatric symptoms requiring professional attention within 48 hours to prevent a serious deterioration in a child or young adult's mental or physical condition.

(16) "Young adult" means a person aged 18 through 20 years who remains in the care and custody of the Department, and lives in substitute care or lives independently through the Department's Independent Living Subsidy Program.

Stat. Auth.: ORS 109.675, 418.005, 418.517
Stats. Implemented: ORS 109.675, 418.005, 418.517
Hist.: SCF 5-1995, f. & cert. ef. 9-15-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 8-2007, f. & cert. ef. 5-1-07; CWP 7-2010, f. & cert. ef. 6-30-10

413-070-0430

Department Records, Medication Review, and Documentation Requirements

(1) The Department must keep the medical and mental health records of any child or young adult in substitute care. As used in this section, "medical and mental health care records" includes a child or young adult's records of medical and mental health care, including but not limited to the names of former and current health providers, medical services and diagnoses, evaluations, immunizations, and prescribed medications.

(2) The caseworker must support timely exchange of medical and mental health care information for a child or young adult in substitute care unless:

(a) A child or young adult has the authority to consent to his or her own health and mental health care; or

(b) The child or young adult's parent or legal guardian retains authority to consent to health care decisions through a Voluntary Custody Agreement or Voluntary Placement Agreement.

(3) The caseworker must:

(a) Provide records of previous mental health assessments and assessment updates, including multi-axial DSM diagnosis and treatment recommendations, and progress records from mental health treatment services to the licensed medical professional prior to the medical appointment or no later than the time at which the licensed medical professional examines the child when a child or young adult may be receiving a prescription for a psychotropic medication.

(b) Document and timely inform the substitute caregiver of the child or young adult's known health information, including information regarding any prescribed and administered psychotropic medication:

(A) At the time of placement; and

(B) When new or updated health information becomes known to the Department.

(4) To keep accurate medical records and documentation for a child or young adult's medical and mental health history record, the caseworker must:

(a) Retain copies of all medical and mental health records received by the Department in the medical section of the case file of the child or young adult in substitute care.

(b) Document and update records of known health conditions, services, and supports of the child or young adult in substitute care when developing the case plan and at each case plan review.

(c) Receive and review monthly the medication log of the child or young adult in substitute care and file a copy in the medical section of the case record of the child or young adult.

(d) Document the medical information of the child or young adult in the Department's information system.

(5) The Department must inform the substitute caregiver of the child or young adult that written consent, as set forth in the following subsections, is required prior to filling a prescription for a new psychotropic medication unless there is an urgent medical need, in which case prior written consent is not required.

(a) Unless an exception in subsection (d) of this section applies, the Child Welfare Program Manager or designee must provide written consent prior to the administration of any new prescription of psychotropic medication to a child or young adult in substitute care when the requirements of at least one of the following paragraphs applies:

(A) The Department is the legal guardian of the child;

(B) Parental rights have been terminated and the court has ordered permanent commitment of the child and placed the child in legal custody and guardianship of the Department; or

(C) A child's parents have signed a Release or Surrender Agreement giving the Department guardianship and control over the child.

(b) When the authority to provide consent to psychotropic medication is not given to the Department in the Voluntary Placement Agreement or Voluntary Custody Agreement, the Department must obtain the written consent of a child's parent or legal guardian for the administration of psychotropic medication.

(c) A child, 14 years of age or older or a young adult may provide written consent for psychotropic medication under ORS 109.675.

(d) Written consent of the Child Welfare Program Manager or designee is not required prior to the administration of any new prescription of psychotropic medication to a child or young adult in substitute care when the requirements of at least one of the following paragraphs applies:

(A) A change in the delivery system of a previously prescribed medication;

(B) A change in the dosage of a previously prescribed medication;

(C) A change in medication within the same drug classification;

(D) A one-time medication given prior to a medical procedure; or

(E) An anti-epileptic medication prescribed for a seizure disorder.

(6) After the caseworker has obtained the written consent for psychotropic medication required under section (5) of this rule, the caseworker must:

(a) Complete the notifications required under OAR 413-070-0480 and 413-070-0490.

(b) Ensure a report has been made to the prescribing licensed medical professional when the condition of the child or young adult in substitute care is not improving, is deteriorating, or when the child or young adult, caseworker, substitute caregiver, or other individual has observed suspected side-effects of the medication.

(c) Request and receive updated health information about the child or young adult in substitute care and the effects of the prescribed psychotropic medication therapy from the substitute caregiver during the 30 day contact with the substitute caregiver required under OAR 413-080-0059.

(7) Prior to administration of a new prescription for more than one psychotropic medication or any antipsychotic medication, the Department must ensure a child or young adult in substitute care has received an assessment from a qualified mental health professional or licensed medical professional unless:

(a) A medication was prescribed for an urgent need; or

(b) The prescription is described in paragraphs (5)(d)(A) to (E) of this rule.

(8) The assessment required under section (7) of this rule either must:

(a) Have been completed within the three months prior to the prescription for psychotropic medication; or

(b) Be an update of a prior assessment, which focuses on a new or acute problem, and information from the assessment must be communicated to the licensed medical professional prior to the issuance of a prescription for psychotropic medication.

(9) The Department must ensure the requirements of both of the following subsections are met:

(a) An annual review of psychotropic medications, by an individual other than the prescriber when:

(A) A child or young adult has more than two prescriptions for psychotropic medications; or

(B) A child is under six years of age.

(b) The annual review required under subsection (a) of this section must be conducted by one of the following:

(A) A licensed medical professional;

(B) A qualified mental health professional with the authority to prescribe drugs; or

(C) A licensed pharmacist with the Drug Use Review Program under OAR 410-121-0100.

Stat. Auth.: ORS 109.675, 418.005, 418.517
Stats. Implemented: ORS 109.675, 418.005, 418.517
Hist.: SCF 5-1995, f. & cert. ef. 9-15-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 8-2007, f. & cert. ef. 5-1-07; CWP 7-2010, f. & cert. ef. 6-30-10

413-070-0450

Disclosure Requirements for the Department Regarding a Child 14 Years of Age and Older and a Young Adult in Substitute Care

Pursuant to ORS 109.675, a child 14 years of age or older or a young adult in substitute care may obtain, without parental knowledge or consent, outpatient diagnosis or treatment of a mental or emotional disorder, or a chemical dependency, excluding methadone maintenance, by a physician, licensed psychologist, nurse practitioner, licensed clinical social worker, or a community mental health and developmental disabilities program established and operated pursuant to ORS 430.620. However, when a child 14 years of age or older or a young adult is in substitute care, and the substitute caregiver or the Department has knowledge of that prescription, the notification requirements of OAR 413-070-0470, 413-070-0480, and 413-070-0490 apply.

Stat. Auth.: ORS 109.675, 418.005, 418.517
Stats. Implemented: ORS 109.675, 418.005, 418.517
Hist.: SCF 5-1995, f. & cert. ef. 9-15-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 8-2007, f. & cert. ef. 5-1-07; CWP 7-2010, f. & cert. ef. 6-30-10

413-070-0470

Substitute Caregiver Responsibilities

(1) The substitute caregiver must:

(a) Notify the Department within one business day after receiving a new prescription or knowledge of a new prescription for psychotropic medication for a child or young adult; and

(b) Obtain consent from the Department prior to filling a prescription for and administering a new psychotropic medication.

(2) The substitute caregiver must provide written or verbal notification to the caseworker or caseworker's supervisor within one business day when a licensed medical professional prescribes a change in dosage, suspension, or discontinuation of the current psychotropic medication.

(3) The substitute caregiver must keep current medical and mental health care records and medication logs of a child or young adult in the care or custody of the Department. The records must include:

(a) Medical and mental health appointments for the child or young adult in substitute care.

(b) Medical and mental health appointment follow-up reports provided to the substitute caregiver.

(c) Any record of any immunization obtained while in the care of the substitute caregiver.

(d) A record of all prescribed medications administered to the child or young adult in substitute care.

(4) A substitute caregiver certified by the Department must keep a current medication log on a form approved by the Department. A provider must keep a current medication log either on the form approved by the Department or on a form provided by the private child-caring agency. The medication log record must include all medications administered to the child or young adult in substitute care and must include:

(a) The name of the child or young adult in substitute care.

(b) The brand or generic name of the medication, including the prescribed dosage and prescribed dosage administration schedule.

(c) Times and dates of administration or monitored self-administration of the medication.

(d) The name or initials of the substitute caregiver administering the medication or monitoring the self-administration.

(5) The substitute caregiver must provide completed medication logs and any medication records obtained during medical visits and records of appointments to the Department at the end of each month. This must include logs of all medication administered to the child or young adult at school or in settings other than the home of the substitute caregiver.

(6) The substitute caregiver must keep all psychotropic medications properly stored and must:

(a) Ensure the psychotropic medication specifies the dosage and prescribed dosage administration schedule of the licensed medical professional for the psychotropic medication; and

(b) Ensure the psychotropic medication is kept in locked storage and stored as prescribed. Psychotropic medication requiring refrigeration must be kept under refrigeration in a locked box.

(7) The substitute caregiver may not discontinue, change, or otherwise alter the prescribed administration of a psychotropic medication for a child or young adult in substitute care without direction from the licensed medical professional.

(8) The substitute caregiver may not use alternative medications intended to alter or affect mood or behavior, such as herbals or homeopathic remedies, without direction and supervision of a licensed medical professional and must notify the Department when any such alternative medication is directed.

Stat. Auth.: ORS 109.675, 418.005, 418.517
Stats. Implemented: ORS 109.675, 418.005, 418.517
Hist.: SCF 5-1995, f. & cert. ef. 9-15-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 8-2007, f. & cert. ef. 5-1-07; CWP 7-2010, f. & cert. ef. 6-30-10

413-070-0480

Notification Timelines for Psychotropic Medication Therapy

(1) The Department must provide written notification to the parties identified in section (2) of this rule within a timely manner, not to exceed ten business days of:

(a) The Department receiving notice that a psychotropic medication has been prescribed for a child or young adult in substitute care; or

(b) Either of the following changes occur in the treatment of a child or young adult in substitute care:

(A) The prescribed dosage of a psychotropic medication; or

(B) Discontinuation of existing psychotropic medication therapy.

(2) When a child or young adult is in substitute care, written notification is provided to:

(a) The parent or legal guardian unless a parent has relinquished parental rights or had parental rights terminated;

(b) The attorney of the parent or legal guardian;

(c) The attorney of the child or young adult;

(d) The court appointed special advocate of the child or young adult, if one has been appointed;

(e) Any other legal parties to the case; and

(f) The substitute caregiver.

Stat. Auth.: ORS 109.675, 418.005, 418.517
Stats. Implemented: ORS 109.675, 418.005, 418.517
Hist.: SCF 5-1995, f. & cert. ef. 9-15-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 8-2007, f. & cert. ef. 5-1-07; CWP 7-2010, f. & cert. ef. 6-30-10

413-070-0490

Notification Content for Psychotropic Medication Therapy

The notification described in OAR 413-070-0480 must contain:

(1) The name and contact information of the prescribing licensed medical professional;

(2) The diagnosed condition of the child or young adult for which the medication was prescribed;

(3) The name of the prescribed psychotropic medication;

(4) The prescribed dosage;

(5) The dosage recommended pursuant to a medically accepted indication;

(6) The reason the medication was prescribed;

(7) The expected benefit of the medication;

(8) The side-effects of the medication; and

(9) Notice of the right to petition the juvenile court for a hearing if there is an objection to the use of the prescribed medication or prescribed dosage.

Stat. Auth.: ORS 109.675, 418.005, 418.517
Stats. Implemented: ORS 109.675, 418.005, 418.517
Hist.: SCF 5-1995, f. & cert. ef. 9-15-95; SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 8-2007, f. & cert. ef. 5-1-07; CWP 7-2010, f. & cert. ef. 6-30-10

Legal Permanency, Concurrent Planning, and Use of Permanency Committee

413-070-0500

Purpose

These rules (OAR 413-070-0500 to 413-070-0519) describe the Department's responsibility to seek legal permanency for a child or young adult in the legal custody of the Department and the use of a permanency committee.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: SOSCF 10-2000, f. & cert. ef. 4-28-00; SOSCF 42-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 43-2003, f. 12-31-03, cert. ef. 1-1-04; CWP 27-2010, f. & cert. ef. 12-29-10

413-070-0505

Definitions

The following definitions apply to OAR 413-070-0500 to 413-070-0519:

(1) "Adoptive resource" means an individual or individuals selected by the Department, another public child welfare agency, or a licensed adoption agency as the adoptive family for a child where no administrative review was requested within the timeframe allowed for such a request, or if a review was requested, the selection has been sustained by that review and the review is complete.

(2) "CASA" means a court appointed special advocate: a volunteer who is appointed by the court, is a party to the juvenile proceeding, and advocates for the child pursuant to ORS 419A.170.

(3) "Child" means a person under 18 years of age.

(4) "Committee facilitator" means a Department staff member appointed as a member of the committee to facilitate a permanency or adoption committee meeting.

(5) "Concurrent permanent plan" means the alternate permanency plan whenever the child has been placed in substitute care when the goal of the permanency plan is to return the child to the parents. The "concurrent permanent plan" is developed simultaneously with the plan to return the child to the parents or legal guardians.

(6) "Conditions for return" means a written statement of the specific behaviors, conditions, or circumstances that must exist within a child's home before a child can safely return and remain in the home with an in-home ongoing safety plan.

(7) "Current caretaker" means a foster parent who:

(a) Is currently caring for a child in the legal custody of the Department who has a permanency plan or concurrent permanent plan of adoption;

(b) Has cared for the child or at least one sibling in a sibling group under consideration for at least the past 12 consecutive months; and

(c) Has been identified by the Department as a potential adoptive resource for the child and when appropriate, the siblings in a sibling group under consideration for adoption in the same adoptive family.

(8) "General applicant" means an individual who:

(a) Is neither a relative or current caretaker; and

(b) Has submitted a completed application to adopt a child.

(9) "Indian child" means any unmarried person who is under 18 years of age and is either:

(a) A member of an Indian tribe; or

(b) Eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

(10) "Legal assistance specialist" means an Adoption Program staff member who provides consultation on the technical and legal processes to achieve a permanency plan for a child in the legal custody of the Department.

(11) "Parent" means the biological or adoptive mother or the legal father of the child. A legal father is a man who has adopted the child or whose paternity has been established or declared under ORS 109.070, 416.400 to 416.465, or by a juvenile court. In cases involving an Indian child under the Indian Child Welfare Act (ICWA), a legal father includes a man who is a father under applicable tribal law. "Parent" also includes a putative father who has demonstrated a direct and significant commitment to the child by assuming or attempting to assume responsibilities normally associated with parenthood, unless a court finds that the putative father is not the legal father.

(12) "Permanency committee" means a group of individuals who are responsible for making a recommendation regarding a permanency plan or a potential permanency resource when the child or young adult likely is not returning to his or her parent.

(13) "Permanency plan" means a written course of action for achieving safe and lasting family resources for the child. Although the plan may change as more information becomes available, the goal is to develop safe and permanent family resources with the parents, relatives, or other people who will assume legal responsibility for the child during the remaining years of dependency and be accessible and supportive to the child in adulthood.

(14) "RCWAC" means the Refugee Child Welfare Advisory Committee.

(15) "Refugee child" means, as defined under ORS 418.925, a person under 18 years of age who has entered the United States and is unwilling or unable to return to the person's country because of persecution or a well-founded fear of persecution on account of race, religion, sex, sexual orientation, nationality, membership in a particular group, or political opinion, or whose parents entered the United States within the preceding 10 years and are or were unwilling or unable to return to their country because of persecution or a well-founded fear of persecution on account of race, religion, sex, sexual orientation, nationality, membership in a particular group, or political opinion.

(a) As used in this section, "persecution" means that harm or suffering will be inflicted upon the person to punish the person for possessing a particular belief or characteristic. "Persecution" does not include harm and suffering that is inflicted on persons generally by reason of civil or military strife in a country.

(b) As used in this section, "fear of persecution" means an apprehension or awareness, based on external objective facts, that the person will suffer persecution upon return to the person's country.

(16) "Relative" means (each of the following individuals is a "relative"):

(a) An individual with one of the following relationships to the child or young adult through the parent of the child or young adult unless the relationship has been dissolved by adoption of the child, young adult, or parent:

(A) Any blood relative of preceding generations denoted by the prefixes of grand, great, or great-great.

(B) Any half-blood relative of preceding generations denoted by the prefixes of grand, great, or great-great (individuals with one common biological parent are half-blood relatives).

(C) A sibling, also to include an individual with a sibling relationship to the child or young adult through a putative father.

(D) An aunt, uncle, nephew, niece, first cousin, and first cousin once removed.

(E) A spouse of anyone listed in paragraphs (A) to (D) of this subsection, even if a petition for annulment, dissolution, or separation has been filed or the marriage is terminated by divorce or death. To be considered a "relative" under this paragraph, the child or young adult must have had a relationship with the spouse prior to the most recent episode of Department custody.

(b) An individual with one of the following relationships to the child or young adult:

(A) An individual defined as a relative by the law or custom of the tribe of the child or young adult if the child or young adult is an Indian child under the Indian Child Welfare Act or in the legal custody of a tribe.

(B) An individual defined as a relative of a refugee child or young adult under Child Welfare Policy I-E.2.2, "Placement of Refugee Children", OAR 413-070-0300 to 413-070-0380.

(C) A stepparent or former stepparent if the child or young adult had a relationship with the former stepparent prior to the most recent episode of Department custody; a stepbrother; or a stepsister.

(D) The registered domestic partner of the parent of the child or young adult or a former registered domestic partner of the parent of the child or young adult if the child or young adult had a relationship with the former domestic partner prior to the most recent episode of Department custody.

(E) The adoptive parent of a sibling of the child or young adult.

(F) The unrelated legal or biological father or mother of a half-sibling of the child or young adult when the half-sibling of the child or young adult is living with the unrelated legal or biological father or mother.

(c) An individual identified by the child or young adult or the family of the child or young adult, or an individual who self-identifies, as being related to the child or young adult through the parent of the child or young adult by blood, adoption, or marriage to a degree other than an individual specified as a "relative" in paragraphs (A) to (D) of subsection (a) of this section unless the relationship has been dissolved by adoption of the child, young adult, or parent.

(d) An individual meeting the requirements of at least one of the following paragraphs:

(A) Not related to the child, young adult, or parent by blood, adoption, or marriage:

(i) Who is identified as a member of the family by the child or young adult or by the family of the child or young adult; and

(ii) Who had an emotionally significant relationship with the child or young adult or the family of the child or young adult prior to the most recent episode of Department custody.

(B) Who has a blood relationship to the child or young adult as described in paragraphs (a)(A) to (D) of this section through the birth parent of the child or young adult, but the prior legal relationship has been dissolved by adoption of the child, young adult, or parent.

(e) For eligibility for the guardianship assistance program:

(A) A stepparent is considered a parent and is 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 to the adoptive or biological parent of the child has been terminated by divorce or death.

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

(i) There is a compelling reason why adoption is not an achievable permanency plan;

(ii) The foster parent is currently caring for a child, in the care or custody of the Department or a participating tribe, who has a permanency plan or concurrent permanent plan of guardianship;

(iii) The foster parent has cared for the child for at least 12 of the past 24 months; and

(iv) The Department or tribe has approved the foster parent for consideration as a guardian.

(17) "Sibling" means one of two or more children or young adults related:

(a) By blood or adoption through a common legal parent;

(b) Through the marriage of the legal or biological parents of the children or young adults; or

(c) Through a legal or biological parent who is the registered domestic partner of the legal or biological parent of the children or young adults.

(18) "Substitute care" means an out-of-home placement of a child or young adult who is in the legal or physical custody and care of the Department.

(19) "Substitute caregiver" means a relative caregiver, foster parent, or provider authorized to provide care to a child or young adult in the legal or physical custody of the Department.

(20) "Young adult" means a person aged 18 through 20 years who remains in the care and custody of the Department, and lives in substitute care or lives independently through the Department's Independent Living Subsidy Program.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: SOSCF 10-2000, f. & cert. ef. 4-28-00; SOSCF 42-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 43-2003, f. 12-31-03, cert. ef. 1-1-04; CWP 27-2010, f. & cert. ef. 12-29-10; CWP 11-2014, f. & cert. ef. 6-3-14

413-070-0510

Obligation to Seek Legal Permanency

(1) Except as provided in section (3) of this rule, the Department must make reasonable efforts to preserve and reunify families:

(a) Prior to placing a child in substitute care to prevent or eliminate the need for removing the child;

(b) By establishing conditions for return described in OAR 413-040-0009 when a child is removed; and

(c) By implementing a permanency plan to make it possible for the child to safely return home.

(2) The Department must also make reasonable efforts to achieve the concurrent permanent plan for legal permanency through adoption or guardianship and to complete the steps necessary to finalize permanency.

(3) Reasonable efforts to prevent a child's placement in substitute care or safely reunite a child with the family are not required when a parent has subjected a child to aggravated circumstances as defined in ORS 419B.340.

(4) The Department must seek the court's approval prior to changing the permanency plan of a child or young adult.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: SOSCF 10-2000, f. & cert. ef. 4-28-00; CWP 43-2003, f. 12-31-03, cert. ef. 1-1-04; CWP 27-2010, f. & cert. ef. 12-29-10

413-070-0512

Development and Review of the Concurrent Permanent Plan

(1) When developing the permanency plan and concurrent permanent plan, the Department must:

(a) Describe the purpose of permanency and concurrent planning to the family;

(b) Involve the child's or young adult's parents, identified relatives, the CASA, attorneys, the tribe when the child is an Indian child, the RCWAC when the child is a refugee child, and other service providers, as appropriate;

(c) Provide full disclosure of the timelines under which the Department pursues permanency pursuant to federal and state law; and

(d) Describe the resources which may be available to relatives when adoption or guardianship is a permanency plan.

(2) The caseworker must:

(a) Develop a permanency plan and a concurrent permanent plan for each child in the Department's custody within 60 days of the placement of the child into substitute care; and

(b) Review the plan every 90 days, pursuant to Child Welfare Policy I-B.3.1, "Developing and Managing the Case Plan", OAR 413-040-0000 to 413-040-0032.

Stat. Auth.: ORS 418.005
Stats Implemented: ORS 418.005
Hist.: SOSCF 10-2000, f. & cert. ef. 4-28-00; SOSCF 42-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 43-2003, f. 12-31-03, cert. ef. 1-1-04; Renumbered from 413-070-0515 by CWP 27-2010, f. & cert. ef. 12-29-10

413-070-0514

Working with a Child's Team Regarding a Permanency Plan and Concurrent Permanent Plan

(1) The caseworker must consult with a team of individuals, knowledgeable about the child or young adult's needs, including the ongoing assessment of the most appropriate permanency plan and concurrent permanent plan for the child or young adult, throughout the course of the case.

(a) The team must include the following individuals to the extent required in each of the following paragraphs:

(A) The parents, unless a supervisor approves not including a specified parent because the contact may compromise a child, young adult's, or another individual's safety; parental rights have been terminated; or the parent has signed a release and surrender agreement;

(B) The parent's attorney, unless parental rights have been terminated or the parent has signed a release and surrender agreement;

(C) The child or young adult, whenever developmentally appropriate;

(D) The CASA;

(E) A child or young adult's attorney;

(F) A tribal representative if the child or young adult is an Indian child; and

(G) A member of the RCWAC, if the child is a refugee child.

(b) The team may include:

(A) The child or young adult's substitute caregiver;

(B) The substitute caregiver's certifier;

(C) The child's or young adult's relatives;

(D) Persons with a caregiver relationship;

(E) Other individuals with involvement in the child or young adult's life; and

(F) Individuals with expertise in permanency.

(2) The caseworker utilizes the ongoing contact with these individuals to:

(a) Monitor the progress toward achieving the permanency plan;

(b) Provide the child or young adult, and the child or young adult's parents, the opportunity to identify available permanency resources should reunification not be achievable;

(c) Review the efforts to identify and place the child or young adult with a relative and to place siblings together;

(d) Consider the parents' acceptance of a plan other than reunification and their desire for continued contact with the child or young adult;

(e) Identify and consider which concurrent permanent plan best meets the child or young adult's current and lifelong needs for safety, permanency, and well-being in the following preferential order:

(A) Adoption;

(B) Guardianship, which may be considered only when there are compelling reasons why adoption cannot be achieved; or

(C) Another Planned Permanency Living Arrangement, which may be considered only when there are compelling reasons why adoption or guardianship cannot be achieved.

(3) After the caseworker has complied with section (2) of this rule and prior to considering a change in permanency plan, the caseworker must determine that the Department has taken action on the potential permanency resources identified by the Department, the child or young adult, the family of child or young adult, or a member of the team of the child or young adult; and the caseworker must review with the team of the child or young adult:

(a) The outcome of the assessment of potential permanency resources; and

(b) The Department's efforts to develop and maintain the relationship of the child or young adult with potential permanency resources.

(4) When the caseworker determines a change in permanency plan should be considered, the caseworker must determine which permanency plan best:

(a) Meets the safety, permanency, and well-being of the child or young adult;

(b) Provides the child or young adult with support and connections in adulthood; and

(c) Must document the basis for the determination.

(5) The legal assistance specialist must approve changing the permanency plan to adoption prior to the caseworker recommending adoption to the court.

(6) The permanency committee must make recommendations; and

(a) A Child Welfare Program Manager or designee must make the decision on behalf of the Department:

(A) To approve changing the permanency plan to guardianship prior to the caseworker recommending the plan to the court; and

(B) To identify the substitute caregiver as the appropriate permanency placement resource for the plan of guardianship.

(b) A Child Welfare Program Manager must make the decision on behalf of the Department:

(A) To approve changing the permanency plan to APPLA prior to the caseworker recommending the plan to the court; and

(B) To identify the substitute caregiver as the appropriate permanency placement resource for the plan of APPLA.

Stat. Auth.: ORS 418.005
Stats Implemented: ORS 418.005
Hist.: CWP 27-2010, f. & cert. ef. 12-29-10; CWP 3-2011(Temp), f. & cert. ef. 3-22-11 thru 9-18-11; CWP 23-2011, f, & cert. ef. 9-19-11

413-070-0515 [Renumbered to 413-070-0512]

413-070-0516

Use of Permanency Committee

A permanency committee must be scheduled when any of the following sections applies:

(1) The caseworker is recommending a change in permanency plan to guardianship. The permanency committee provides a recommendation based upon the considerations in OAR 413-070-0660 and 413-070-0665.

(2) The caseworker is recommending a change in permanency plan to APPLA. The permanency committee provides a recommendation based upon the considerations in OAR 413-070-0550(1).

(3) A foster parent's request to be considered an adoptive resource as a current caretaker pursuant to Child Welfare Policy I-G.1.1, "Foster Parent Request for Consideration as a Current Caretaker", OAR 413-120-0500 to 413-120-0595. The permanency committee provides a recommendation based upon the considerations in OAR 413-120-0570.

(4) A caseworker is considering the separation of siblings in adoption under OAR 413-100-0132. The permanency committee provides a recommendation based upon the considerations in OAR 413-110-0132(2).

(5) The caseworker requests that a permanency committee review the relationship between a general applicant and a child whose permanency plan is adoption. The permanency committee provides a recommendation based upon the considerations in OAR 413-120-0750(5)(b).

Stat. Auth.: ORS 418.005
Stats Implemented: ORS 418.005
Hist.: CWP 27-2010, f. & cert. ef. 12-29-10; CWP 3-2011(Temp), f. & cert. ef. 3-22-11 thru 9-18-11; CWP 23-2011, f, & cert. ef. 9-19-11

413-070-0518

Composition, Scheduling, Responsibilities and Recommendations of the Permanency Committee

(1) Composition. A permanency committee includes the following individuals.

(a) Two individuals who have been appointed by a Child Welfare Program Manager to attend a permanency committee.

(A) A committee facilitator, who must be a Department staff member and who must ensure all of the following:

(i) The meeting is held according to the requirements of Chapter 413 of the Oregon Administrative Rules.

(ii) Individuals are informed of the responsibilities of the committee and the confidentiality of information presented during the meeting.

(iii) Thorough and accurate documentation of the committee recommendations.

(B) A second individual who may be either a community partner or another Department staff member.

(C) These two individuals must meet the requirements of all of the following paragraphs:

(i) Be knowledgeable about permanency issues.

(ii) Be knowledgeable of the importance of lifelong family attachment and cultural connections.

(iii) Have no current personal or professional relationship to the child or a potential placement resource or potential adoptive resource being considered.

(b) The following members of the child's team:

(A) The caseworker of the child or young adult;

(B) The attorney of the child or young adult;

(C) The CASA of the child or young adult;

(D) A tribal representative, if the child or young adult is an Indian child; and

(E) A member of the RCWAC, if the child or young adult is a refugee child.

(2) The substitute caregiver of the child or young adult, or any other individual from the child's team who a caseworker, in consultation with the supervisor, believes can provide important input into the issue before the permanency committee, may be invited to come and present information to the permanency committee, but is excused after presenting information and responding to questions.

(3) The Child Welfare Program Manager or designee responsible for making the decision on behalf of the Department attends the permanency committee and may ask clarifying questions, but does not participate in the deliberation and recommendation.

(4) Scheduling. The Department is responsible for scheduling and notifying the following individuals of the date, time, and location of the permanency committee.

(a) Appointed permanency committee members;

(b) The Child Welfare Program Manager or designee making a decision on the issue before the permanency committee;

(c) Each member of the child's or young adult's team identified in subsection (1)(b) of this rule; and

(d) Any other individual invited to present specific information to the permanency committee.

(5) Confidentiality. Each individual attending a permanency committee is bound by Oregon statutes regarding confidentiality and Child Welfare Policy I-A.3.2, "Confidentiality of Client Information" OAR 413-010-0000 to 413-010-0075.

(6) Consideration, review, and recommendation.

(a) The permanency committee must consider and review the information presented by any individual invited to the permanency committee, whether the information is presented in person, by phone, through other electronic communication, or in writing.

(b) The permanency committee may seek clarifying and request additional information during the presentations.

(c) The permanency committee must consider the safety, permanency, and well-being needs of the child or young adult and when there are siblings, the safety, permanency, and well-being needs of each sibling; and make a recommendation regarding the issue brought before the committee to the Child Welfare Program Manager or designee.

(d) When members of the permanency committee have not come to consensus on a recommendation, the committee facilitator must document all recommendations and the basis provided by the permanency committee member for that recommendation.

(e) The committee facilitator must provide the written documentation of the permanency committee's recommendation or recommendations to the Child Welfare Program Manager or designee within three business days of the date on which the permanency committee was held.

Stat. Auth.: ORS 418.005
Stats Implemented: ORS 418.005
Hist.: CWP 27-2010, f. & cert. ef. 12-29-10; CWP 3-2011(Temp), f. & cert. ef. 3-22-11 thru 9-18-11; CWP 23-2011, f, & cert. ef. 9-19-11

413-070-0519

Decision and Notice

(1) Except to the extent that section (2) of this rule indicates otherwise, the Child Welfare Program Manager or designee must:

(a) Consider the recommendations of the permanency committee;

(b) Make a decision within one business day following the receipt of the written recommendations of the permanency committee; and

(c) Provide written notification of the decision and the basis of the decision to the caseworker on a form approved by the Department.

(2) When the decision of the permanency committee applies to changing a permanency plan to APPLA, the Child Welfare Program Manager must make the decision and cannot appoint a designee.

(3) The caseworker must notify the following individuals of the decision under section (1) of this rule:

(a) Each child or young adult, when required by law and developmentally appropriate;

(b) Each child's or young adult's attorney, if one has been appointed;

(c) Each child's or young adult's CASA, if one has been appointed;

(d) Each child's or young adult's tribal representative, when a child or young adult is an Indian child;

(e) The member of the RCWAC when a child or young adult is a refugee child; and

(f) Each child's or young adult's substitute caregiver.

Stat. Auth.: ORS 418.005
Stats Implemented: ORS 418.005
Hist.: CWP 27-2010, f. & cert. ef. 12-29-10; CWP 3-2011(Temp), f. & cert. ef. 3-22-11 thru 9-18-11; CWP 23-2011, f, & cert. ef. 9-19-11

Another Planned Permanent Living Arrangement

413-070-0520

Purpose

The purpose of these rules (OAR 413-070-0520 to 413-070-0565) is to describe the responsibilities of the Department in case planning and the appropriate use of APPLA as a permanency plan for a child or young adult.

Stat. Auth.: ORS 418.005
Stats Implemented: ORS 418.005
Hist.: CWP 15-2006, f. 6-30-06, cert. ef. 7-1-06; CWP 17-2009, f. & cert. ef. 11-3-09; CWP 13-2010(Temp), f. & cert. ef. 7-1-10 thru 12-28-10; CWP 28-2010, f. & cert. ef. 12-29-10

413-070-0524

Definitions

The following definitions apply to these rules, OAR 413-070-0520 to 413-070-0565:

(1) "APPLA" means Another Planned Permanent Living Arrangement, a permanency plan for a stable secure living arrangement for a child or young adult that includes building relationships with significant people in the child's life that may continue after substitute care. APPLA is the least preferred permanency plan of the four permanency plan options for a child or young adult and is appropriate only in very limited circumstances.

(a) "Planned" means the arrangement is intended, designed, and deliberate.

(b) "Permanent" means enduring and stable.

(2) "Caregiver relationship" means a relationship between a person and a child or young adult that meets the requirements of all of the following subsections:

(a) The relationship has existed for the 12 months immediately preceding the initiation of a dependency proceeding, for at least six months during a dependency proceeding, or for half of the child's life if the child is less than six months of age. A caregiver relationship does not include a relationship between a child or young adult and a person who is an unrelated foster parent of the child or young adult unless the relationship continued for a period of at least 12 consecutive months.

(b) The person had physical custody of the child or young adult or resided in the same household as the child and provided the child or young adult on a daily basis with the love, nurturing, and other necessities required to meet the psychological and physical needs of the child or young adult.

(c) The child or young adult depended on the relationship to meet the needs of the child or young adult.

(3) "Child" means a person under 18 years of age.

(4) "Department" means the Department of Human Services, Child Welfare.

(5) "Foster parent" means a person who operates a home that has been approved by the Department to provide care for unrelated children or young adults who are placed in the home by the Department.

(6) "Independent living housing subsidy" means a payment to assist in covering the cost of room, board, or other monthly expenses made to an eligible individual who is at least 16 years of age and is in the care and custody of the Department and living independently.

(7) "Indian child" means any unmarried person who is under age 18 and is either:

(a) A member of an Indian tribe; or

(b) Eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe.

(8) "Parent" means the biological or adoptive mother or the legal father of the child. A legal father is a man who has adopted the child or whose paternity has been established or declared under ORS 109.070, ORS 416.400 to 416.465, or by a juvenile court. In cases involving an Indian child under the Indian Child Welfare Act (ICWA), a legal father includes a man who is a father under applicable tribal law. "Parent" also includes a putative father who has demonstrated a direct and significant commitment to the child by assuming or attempting to assume responsibilities normally associated with parenthood unless a court finds that the putative father is not the legal father.

(9) "Permanency committee" means a group of individuals who are responsible for making a recommendation regarding a permanency plan or a potential permanency resource when the child or young adult likely is not returning to his or her parent.

(10) "Permanency plan" means a written course of action for achieving safe and lasting family resources for the child. Although the plan may change as more information becomes available, the goal is to develop safe and permanent family resources with the parents, relatives, or other people who will assume legal responsibility for the child during the remaining years of dependency and be accessible and supportive to the child in adulthood.

(11) "Permanent foster care" means the out of home placement of a child in which there is a long-term foster care agreement between each substitute caregiver and the Department approved by the juvenile court under which the substitute caregiver commits to raise a child in substitute care until the age of majority and be accessible to and supportive of the child into adulthood, until the court determines that APPLA - permanent foster care is no longer the appropriate permanency plan for the child.

(12) "Relative caregiver" means a person who operates a Department approved home providing care for a related child or young adult placed into the home by the Department.

(13) "Substitute care" means the out-of-home placement of a child who is in the legal or physical custody and care of the Department.

(14) "Substitute caregiver" means a relative caregiver, foster parent, or provider authorized to provide care to a child or young adult in the legal or physical custody of the Department.

(15) "Young adult" means a person 18 through 20 years.

Stat. Auth.: ORS 418.005, 418.925, 419A.004(17)
Stats Implemented: ORS 418.005, 418.925, 419A.004(17))
Hist.: CWP 15-2006, f. 6-30-06, cert. ef. 7-1-06; CWP 17-2009, f. & cert. ef. 11-3-09; CWP 13-2010(Temp), f. & cert. ef. 7-1-10 thru 12-28-10; CWP 28-2010, f. & cert. ef. 12-29-10; CWP 1-2013, f. & cert. ef. 1-15-13

413-070-0532

Types of APPLA

The caseworker considers one of the following types of APPLA when considering APPLA as a permanency plan for a child or young adult:

(1) APPLA — permanent foster care. An APPLA — permanent foster care is a plan in which the child or young adult remains in a substitute care placement with a substitute caregiver who has:

(a) Committed to the care and well-being of the child or young adult; and

(b) Entered into a permanent foster care agreement.

(2) APPLA — permanent connections and support. An APPLA — permanent connections and support plan is a plan in which:

(a) A child or young adult is in substitute care living with a substitute caregiver or living independently and receiving an independent living housing subsidy and the plan focus is not only on the child's or young adult's educational, vocational, health, and treatment needs, but also on the needs of the child or young adult to develop or maintain relationships with adults, including relatives and persons with a caregiver relationship, who can play a significant role in the child's or young adult's life after the child or young adult leaves substitute care; or

(b) A child or young adult is in a psychiatric residential facility, Developmental Disabilities placement, or residential treatment facility and is not going to be discharged from the facility while the Department maintains legal custody of the child or young adult.

Stat. Auth.: ORS 418.005 & 419A.004(17)
Stats Implemented: ORS 418.005 & 419A.004(17)
Hist.: CWP 15-2006, f. 6-30-06, cert. ef. 7-1-06; CWP 17-2009, f. & cert. ef. 11-3-09; CWP 28-2010, f. & cert. ef. 12-29-10

413-070-0536

Consideration of APPLA as a Permanency Plan

(1) The Department may consider APPLA as a permanency plan for a child or young adult only if the Department has determined that there is a compelling reason that it is not in the best interests of the child to implement one of the following preferred permanency plans, listed in order of preference:

(a) Placement with a parent;

(b) Placement in an adoptive home which includes permanent placement with a fit and willing relative through the adoption; or

(c) Placement with a guardian which includes permanent placement with a fit and willing relative as a guardian.

(2) Prior to consideration of a foster parent as the APPLA resource, the caseworker and the caseworker's supervisor have complied with the requirements of both of the following subsections:

(a) Reviewed the Department's diligent efforts to identify, contact, and place a child or young adult with relatives and to place siblings together as required under Child Welfare Policy I-E.1.1, "Search for and Engagement of Relatives", OAR 413-070-0060 to 413-070-0087.

(b) Confirmed there are no current Department actions to identify or assess a child's or young adult's relative who has either expressed an interest in and needs to be or currently is being assessed as a permanency resource.

(3) The Department must base consideration of each permanency plan on the individual safety, permanency, and well-being needs of a child or young adult. A child's age or disability is never a disqualifier for a more preferred permanency plan.

Stat. Auth.: ORS 109.328, 418.005
Stats Implemented: ORS 109.328, 418.005
Hist.: CWP 15-2006, f. 6-30-06, cert. ef. 7-1-06; CWP 17-2009, f. & cert. ef. 11-3-09; CWP 13-2010(Temp), f. & cert. ef. 7-1-10 thru 12-28-10; CWP 28-2010, f. & cert. ef. 12-29-10; CWP 1-2013, f. & cert. ef. 1-15-13

413-070-0540

Determination of APPLA as a Child's or Young Adult's Permanency Plan

(1) When the Department is considering a change in a child or young adult's permanency plan, the Department makes the determination pursuant to Child Welfare Policy I-E.3.6, "Legal Permanency, Concurrent Planning, and Use of Permanency Committee", OAR 413-070-0500 to 413-070-0519.

(2) Prior to the permanency committee, when APPLA — permanent foster care is being considered as the most appropriate permanency plan for a child or young adult, the caseworker must:

(a) Meet with the substitute caregiver to:

(A) Assess interest in and commitment to a permanent foster care agreement with each substitute caregiver as long as APPLA — permanent foster care is the permanency plan for the child or young adult; and

(B) Review the requirements, responsibilities, and approval process for the permanent foster care agreement with each substitute caregiver.

(b) Meet with the child or young adult, as developmentally appropriate, to assess interest in APPLA - permanent foster care as the permanency plan.

Stat. Auth.: ORS 418.005
Stats Implemented: ORS 418.005, 418.937, 418.941, 419A.004
Hist.: CWP 15-2006, f. 6-30-06, cert. ef. 7-1-06; CWP 17-2009, f. & cert. ef. 11-3-09; CWP 13-2010(Temp), f. & cert. ef. 7-1-10 thru 12-28-10; CWP 28-2010, f. & cert. ef. 12-29-10

413-070-0548 [Renumbered to 413-070-0551]

413-070-0550

Approval and Implementation of an APPLA Permanency Plan

(1) The permanency committee must consider the best interests of the child or young adult under consideration and consider each of the following factors when making a recommendation regarding APPLA:

(a) How an APPLA permanency plan meets safety, permanency, and well-being needs of the child or young adult, and is in the best interests of the child or young adult.

(b) Whether the Department has provided the child or young adult, and the child or young adult's parents, an opportunity to identify available permanency resources.

(c) The parents' acceptance of APPLA as a permanency plan and their desire for continued contact with the child or young adult.

(d) Whether the child or young adult's substitute caregiver is able to meet the child or young adult's needs pursuant to OAR 413-070-0640 in Child Welfare Policy I-E.3.1, "Placement Matching".

(e) Consideration of each of the more preferred permanency plans described in OAR 413-070-0536(1) and identification of the compelling reasons why return home, adoption, or guardianship cannot be achieved.

(f) When the child or young adult has siblings, the sufficiency of the plan for continued contact unless such contact is not in the best interests of the child or young adult and each sibling.

(2) After completing the review under section (1) of this rule, the permanency committee considers all of the information, deliberates, and, when committee members agree, makes a recommendation to the Child Welfare Program Manager.

(3) When the permanency committee cannot reach agreement, each permanency committee member makes his or her respective recommendations known to the committee facilitator.

(4) The Child Welfare Program Manager who makes the decision on behalf of the Department must consider all of the following when making the decision:

(a) The considerations in section (1) of this rule.

(b) The information presented to the permanency committee.

(c) The recommendation of the permanency committee.

(5) Within 30 days of the Department's decision to approve an APPLA permanency plan under OAR 413-070-0519, the caseworker must request a permanency hearing before the court. At the court hearing, the caseworker must:

(a) Recommend that the court issue an order approving the APPLA plan;

(b) Set forth the compelling reasons why it would not be in the best interests of the child or young adult to return home, be placed for adoption, or be placed with a guardian;

(c) Set forth a timetable for the child or young adult's placement in another planned permanent living arrangement;

(d) Set forth the reasonable services the Department may offer each parent to meet the best interests of the child or young adult until a more preferred permanency plan is achieved, the child reaches the age of majority, reaches independence, or the juvenile court relieves the Department of legal custody of the child or young adult; and

(e) Set forth the type and amount of parent-child and child-sibling contact and involvement until a more preferred permanency plan is achieved, the child reaches age of majority, reaches independence, or the juvenile court relieves the Department of legal custody of the child or young adult.

(6) When the court previously has ordered or the Department recommends that no contact be allowed between parent and child, or child and sibling, the caseworker must request that the court issue a standing protective order, including the reasons why no contact is allowed.

(7) When the APPLA plan does not receive Department approval, within 30 days the caseworker must:

(a) Inform the child or young adult, the child's or young adult's substitute caregivers, the child's or young adult's parents, the child's or young adult's attorney, the child's court appointed special advocate, and other persons with significant involvement in the child's or young adult's life; and

(b) Consult with the child's team to reconsider the child's or young adult's other permanency options.

Stat. Auth.: ORS 418.005
Stats Implemented: ORS 418.005, 419A.004
Hist.: CWP 17-2009, f. & cert. ef. 11-3-09; CWP 13-2010(Temp), f. & cert. ef. 7-1-10 thru 12-28-10; CWP 28-2010, f. & cert. ef. 12-29-10; CWP 2-2011(Temp), f. & cert. ef. 3-22-11 thru 9-18-11; CWP 22-2011, f. & cert. ef. 9-19-11

413-070-0551

Contents of an APPLA Case Plan

(1) When requesting the change to a permanency plan of APPLA to the court, the caseworker must document how the Department plans to address each subsection of this section in the child or young adult's case plan. The case plan must include the following information:

(a) Family composition, which includes the identifying information of each parent (unless parental rights have been terminated), guardian, and sibling.

(b) Except when parental rights have been terminated, safety threats identified in a CPS assessment under Child Welfare Policy I-AB.4, "CPS Assessment", OAR 413-015-0400 to 413-015-0485.

(c) Except when parental rights have been terminated, the ongoing safety plan as described in Child Welfare Policy I-AB.4, "CPS Assessment" OAR 413-015-0400 to 413-015-0485 and recorded in the Department's information system.

(d) A description of how the Department determined the APPLA is the most appropriate permanency plan for the child or young adult, and each compelling reason why the more preferred permanency plan options were not selected for the child or young adult.

(e) A description of how the child or young adult's attachments and relationships with each parent, sibling, other family member, advocate, substitute caregiver, and other person who provides continuity, belonging, stability, support, nurturing, and caring relationships and cultural connections for the child may be developed while the child is in substitute care and maintained when the child reaches the age of majority or the juvenile court relieves the Department of legal custody of the child or young adult. When appropriate, the description may include the following:

(A) A description of how each parent and sibling of the child or young adult may participate actively in the life of the child or young adult.

(B) For each existing relationship the child or young adult has with a permanent adult caregiver or adult parental figure who is capable of sustaining a significant relationship with the child or young adult, a description of how the relationship may be maintained.

(C) A description of how relationships with relatives and other persons involved in the child or young adult's life may be developed and maintained.

(D) Current placement information including the location of the child or young adult when the substitute caregiver authorizes release of the address, except when doing so would jeopardize the safety of the child.

(E) The child or young adult's record of visits with his or her parents or siblings.

(f) When applicable, a description of the plan to transition a developmentally delayed child to an appropriate program for adults who are developmentally delayed.

(g) The comprehensive transition plan required by Child Welfare Policy I-B.2.3.5, "Youth Transitions", OAR 413-030-0400 to 413-030-0460 for any child 14 years of age or older and services that prepare the child or young adult to transition to adulthood.

(h) A description of the reasonable efforts made by the Department to put the services and structures described in this rule in place to meet the needs of the child or young adult and to enhance the stability of the child's living arrangement when the child or young adult is not living with a specified adult.

(i) A description of the services the Department must provide to ensure the emotional, medical, educational, cultural, and physical needs of the child or young adult are being met, including:

(A) The child or young adult's health information, which documents the child or young adult's specialized medical, dental, and mental health services; and

(B) The child or young adult's education services, including the school or educational placement history of the child or young adult, high school credits earned for a child over 14 years of age or a young adult, and any special educational needs.

(j) The services required to prepare the child or young adult to live in the least restrictive setting possible at the most appropriate time.

(k) The services that may make it possible to achieve a more preferred permanency plan listed in OAR 413-070-0536(1) for the child or young adult.

(l) The services the Department may continue to make available to the child or young adult's parents, upon request, that continue to be in the best interests of the child or young adult.

(2) Except when parental rights have been terminated or the Department is unable to obtain the signature of the parent or guardian, the case plan must include the signature of the caseworker, the supervisor, and each parent or guardian as described in Child Welfare Policy I-B.3.1, "Developing and Managing the Case Plan", OAR 413-040-0000 to 413-040-0032.

Stat. Auth.: ORS 418.005
Stats Implemented: ORS 418.005, 419A.004
Hist.: CWP 15-2006, f. 6-30-06, cert. ef. 7-1-06; CWP 17-2009, f. & cert. ef. 11-3-09; Renumbered from 413-070-0548, CWP 28-2010, f. & cert. ef. 12-29-10; CWP 1-2013, f. & cert. ef. 1-15-13

413-070-0552

Ongoing Department Responsibilities When APPLA is the Child's or Young Adult's Permanency Plan

(1) When APPLA is the court approved permanency plan for a child or young adult in the Department's legal custody, the child or young adult's caseworker must:

(a) Discuss the child or young adult's needs with the substitute caregiver and the child or young adult during face to face and other contacts, and routinely discuss needs, benefits, barriers, and solutions towards achieving a more preferred permanency option;

(b) Have contact with the child or young adult, with the substitute caregiver, and monitor child or young adult safety as described in Child Welfare Policy I-B.1, "Monthly Contact and Monitoring Child and Young Adult Safety", OAR 413-080-0040 to 413-080-0067;

(c) Provide timely assessment and services for identified needs of the child or young adult, the child or young adult's substitute caregiver, or the child or young adult's parents;

(d) As soon as possible after the child reaches 14 years of age initiate comprehensive transition planning as described in Child Welfare Policy I-B.2.3.5, "Youth Transitions", OAR 413-030-0400 to 413-030-0460;

(e) Ensure an annual review of Department efforts to identify and contact a child or young adult's relatives and efforts to place with or develop and maintain a child or young adult's connection and support with relatives is completed;

(f) Monitor the case plan and complete the required case plan reviews; and

(g) Submit to the court and to the citizen review board the case plan updates required in Child Welfare Policy I-I.2, "Narrative Recording", and, when the APPLA plan is APPLA - permanent foster care, submit a copy of the permanent foster care agreement.

(2) In addition to the requirements of section (1) of this rule, when the child or young adult has an approved APPLA - permanent foster care plan:

(a) The Department must continue to assess requirements for certification of a foster home pursuant to Child Welfare Policy II-B.1.1, "Responsibilities for Certification and Supervision of Foster Parents and Relative Caregivers and Approval of Potential Adoptive Resources", OAR 413-200-0270 to 413-200-0296; and

(b) The substitute caregiver must:

(A) Maintain a current Certificate of Approval and follow the requirements of the Department pursuant to Child Welfare Policy II-B.1, "Standards for Certification of Foster Parents and Relative Caregivers and Approval of Potential Adoptive Resources", OAR 413-200-0301 to 413-200-0396;

(B) Follow the requirements of the Department regarding a child or young adult's education, medical care, mental health care, and other services requested by the Department to meet the needs of the child or young adult;

(C) Maintain residence in the state of Oregon unless the ICPC referral has been submitted to the receiving state and approval to move has been obtained from the Department and the court prior to the move outside of Oregon; and

(D) Maintain residence in the ICPC approved state if the substitute caregiver lives in another state.

Stat. Auth.: ORS 418.005 & 419A.004(17)
Stats Implemented: ORS 418.005 & 419A.004(17)
Hist.: CWP 15-2006, f. 6-30-06, cert. ef. 7-1-06; CWP 17-2009, f. & cert. ef. 11-3-09; CWP 28-2010, f. & cert. ef. 12-29-10; CWP 1-2013, f. & cert. ef. 1-15-13

413-070-0556

APPLA Permanency Plan Reviews

(1) The caseworker must review the APPLA case plan at least every six months and the review must occur prior to a review by the court or citizen review board as required by ORS 419B.470 and 419A.106(1) respectively.

(a) The review must take place in a face-to-face meeting with the child or young adult, and may include members of the team of the child or young adult.

(A) When appropriate, the meeting may include a parent or guardian, unless the parent or guardian is not available for the review. When a parent or guardian is unavailable, the caseworker must document the reason the parent or guardian was unavailable and the efforts made to involve the parent or guardian.

(B) During the meeting the caseworker must consider input received from the child or young adult, other participants in the meeting, and other information received from service providers, substitute caregivers, a child or young adult's attorney, a child or young adult's court appointed special advocate, the tribe if the child is an ICWA child, persons with significant attachments to the child or young adult, and a child or young adult's relatives.

(b) After the meeting described in subsection (a) of this section, the caseworker must document in the case record:

(A) Whether the current placement continues to be the least restrictive setting available to meet the safety and permanency needs of the child or young adult; or

(B) Whether a more permanent permanency plan, such as reunification, adoption, or guardianship is more appropriate for the child or young adult.

(2) When an APPLA has been approved by the court as the permanency plan for a child or young adult in the legal custody of the Department, the Department must notify the court and request a review or permanency hearing:

(a) Not less frequently than once every 12 months while the child or young adult remains in substitute care in accordance with ORS 419B.470(2).

(b) Unless good cause is shown, at any time upon the request of the Department, a substitute caregiver directly responsible for the care of the child or young adult, a parent of the child or young adult, an attorney for the child or young adult, a court appointed special advocate, a citizen review board, or a tribal court in accordance with ORS 419B.470(5).

(c) By the citizen review board no less frequently than every six months in accordance with ORS 419A.106(1)(a) unless the court has relieved the citizen review board of its responsibility to review a case in accordance with ORS 419A.106(1)(b).

(d) Within 90 days of a change of substitute care placement.

Stat. Auth.: ORS 418.005, 419A.004(17), 419B. 470
Stats Implemented: ORS 418.005, 419A.004(17), 419B. 470
Hist.: CWP 15-2006, f. 6-30-06, cert. ef. 7-1-06; CWP 17-2009, f. & cert. ef. 11-3-09; CWP 28-2010, f. & cert. ef. 12-29-10; CWP 1-2013, f. & cert. ef. 1-15-13

413-070-0565

Termination of APPLA

(1) The APPLA — Permanent Connections and Support must be terminated when:

(a) Court wardship is terminated;

(b) The court relieves the Department of legal custody of the child or young adult; or

(c) The court determines that APPLA — Permanent Connections and Support is no longer the appropriate permanency plan for the child or young adult.

(2) The APPLA — permanent foster care plan and agreement must be terminated when:

(a) The child reaches the age of majority under ORS 419A.004(17);

(b) Court wardship is terminated;

(c) The court determines that APPLA — permanent foster care is no longer the appropriate permanency plan for the child;

(d) One of the more preferred permanency plans described in OAR 413-070-0536(1) is achieved;

(e) The Department and the substitute caregiver mutually consent to termination;

(f) The foster parent or relative caregiver fails to maintain a current Certificate of Approval in accordance to Child Welfare Policies II-B.1, "Standards for Certification of Foster Parents and Relative Caregivers and Approval of Potential Adoptive Resources", OAR 413-200-0301 to 413-200-0396 and II-B.1.1, "Responsibilities for Certification and Supervision of Foster Parents and Relative Caregivers and Approval of Potential Adoptive Resources", OAR 413-200-0270 to 413-200-0296, including when the certificate has been revoked or denied;

(g) The child or young adult is removed from the substitute caregiver by the Department; or

(h) The child or young adult requests, and a Child Welfare Program Manager approves, termination of the agreement because of serious or extraordinary circumstances.

(3) The Department must provide written notification to the court of any change in the placement of the child or young adult.

(4) If a child or young adult is removed from court approved APPLA — permanent foster care, the caseworker must request a permanency hearing within 90 days after the date of the change in placement to review the permanency plan for the child or young adult under ORS 419B.470(3).

Stat. Auth: ORS 418.005, 419A.004(17), 419B. 470
Stats. Implemented: ORS 419A.004(17) & 419B.470
Hist.: CWP 17-2009, f. & cert. ef. 11-3-09; CWP 28-2010, f. & cert. ef. 12-29-10; CWP 1-2013, f. & cert. ef. 1-15-13

Special Immigrant Juvenile Status

413-070-0570

Purpose

These rules (OAR 413-070-0570 to 413-070-0574) describe when the Department will consider and pursue special immigrant juvenile status for a child or young adult who was brought to the United States by a parent or legal guardian not for the purpose of adoption, does not have lawful permanent resident status, cannot be returned safely to a parent or placed in the country of origin of the child or young adult, and should remain in the United States pending finalization of a permanent plan other than return to parent.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: CWP 22-2010, f. & cert. ef. 12-28-10

413-070-0572

Definitions

The following definitions apply to OAR 413-070-0570 to 413-070-0574:

(1) "Adoption" means a legal or administrative process that establishes a permanent legal parent-child relationship between a child and an adult who is not already the child's legal parent and terminates the legal parent-child relationship between the adopted child and any former parent.

(2) "Child" means a person under 18 years of age.

(3) "Department" means the Department of Human Services, Child Welfare.

(4) "Special immigrant juvenile status" means a legal process to obtain lawful permanent resident status for a child who does not have lawful permanent resident status because he or she entered the United States without inspection and who meets the other criteria required by federal law.

(5) "Young adult" means a person 18 to 20 years of age who remains in the care and custody of the Department, and lives in substitute care or lives independently through the Department's Independent Living Subsidy Program.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: CWP 22-2010, f. & cert. ef. 12-28-10

413-070-0574

Special Immigrant Juvenile Status

(1) The Department may apply for special immigrant juvenile status for a child or young adult in the legal and physical custody and guardianship of the Department if requirements of all of the following subsections are met:

(a) The juvenile court has determined that:

(A) The child or young adult is a dependent ward;

(B) The child or young adult cannot be returned to a parent due to abuse, neglect, abandonment, or similar circumstance; and

(C) It is not in the best interests of the child or young adult to return to the child's, young adult's, or parent's country of nationality or country of last habitual residence.

(b) The permanency plan for the child or young adult has been changed by the court from return to parent to another permanent plan.

(c) The child or young adult is not a United States citizen and does not have lawful permanent resident status.

(d) The child or young adult is unmarried and under 21 years of age.

(2) Department staff must consult with and obtain approval from the Children, Adults, and Families Diversity and International Affairs Program Manager or designee before applying for special immigrant juvenile status for achild or young adult in the legal and physical custody and guardianship of the Department.

(3) To apply for special immigrant juvenile status, the Department must:

(a) Before the 21st birthday of the child or young adult, obtain a court order from the juvenile court that makes the necessary findings to support an application for special immigrant juvenile status; and

(b) Complete and submit all necessary U.S. Citizenship and Immigration Service forms and applications for special immigrant juvenile status prior to the 21st birthday of the child or young adult.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: CWP 22-2010, f. & cert. ef. 12-28-10

Placement Matching

413-070-0600

Purpose

The purpose of these rules (OAR 413-070-0600 to 413-070-0645) is:

(1) To describe the requirements for assessing the needs of the child or young adult when the Department places the child or young adult in substitute care to assure the child's safety;

(2) To identify the most appropriate available substitute caregiver who can meet the needs of the child or young adult; and

(3) To describe the requirements for assessing and matching a potential caregiver's ability to meet the current and lifelong needs of the child or young adult for safety, permanency, and well-being.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005 & 419B.192
Hist.: SOSCF 13-1999, f. 7-8-99, cert. ef. 7-12-99; CWP 4-2007, f. & cert. ef. 3-20-07; CWP 26-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 8-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 29-2010, f. & cert. ef. 12-29-10

413-070-0620

Definitions

The following definitions apply to OAR 413-070-0600 to 413-070-0645:

(1) "Adoptive resource" means an individual or individuals selected by the Department, another public child welfare agency, or a licensed adoption agency as the adoptive family for a child where no administrative review was requested within the timeframe allowed for such a request, or if a review was requested, the selection has been sustained by that review and the review is complete.

(2) "CANS screening" means Child and Adolescent Needs and Strengths screening, a process of gathering information on a child or young adult's needs and strengths used for one or more of the following purposes:

(a) Identifying case planning, service planning, and supervision needs of the child or young adult in substitute care with a certified family;

(b) Determining the level of care payment while in substitute care with a certified family; and

(c) Determining the level of care payment included in an adoption assistance agreement or guardianship assistance agreement.

(3) "Caregiver relationship" means a relationship between a person and a child or young adult that meets the requirements of all of the following subsections:

(a) The relationship has existed for the 12 months immediately preceding the initiation of a dependency proceeding, for at least six months during a dependency proceeding, or for half of the child's life if the child is less than six months of age. A "caregiver relationship" does not include a relationship between a child or young adult and a person who is an unrelated foster parent of the child or young adult unless the relationship continued for a period of at least twelve consecutive months.

(b) The person had physical custody of the child or young adult or resided in the same household as the child and provided the child or young adult on a daily basis with the love, nurturing and other necessities required to meet the psychological and physical needs of the child or young adult.

(c) The child or young adult depended on the relationship to meet the needs of the child or young adult.

(4) "Child" means a person under 18 years of age.

(5) "Department" means the Department of Human Services, Child Welfare.

(6) "Foster parent" means an individual who operates a home that has been approved by the Department to provide care for an unrelated child or young adult placed in the home by the Department.

(7) "Indian child" means any unmarried person who is under 18 years of age and is either:

(a) A member of an Indian tribe; or

(b) Eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

(8) "Parent" means the biological or adoptive mother or the legal father of the child. A legal father is a man who has adopted the child or whose paternity has been established or declared under ORS 109.070, 416.400 to 416.465, or by a juvenile court. In cases involving an Indian child under the Indian Child Welfare Act (ICWA), a legal father includes a man who is a father under applicable tribal law. "Parent" also includes a putative father who has demonstrated a direct and significant commitment to the child by assuming or attempting to assume responsibilities normally associated with parenthood, unless a court finds that the putative father is not the legal father.

(9) "Provider" means an individual approved by a licensed private child-caring agency to provide care for a child or young adult, or an employee of a licensed private child-caring agency approved to provide care for a child or young adult.

(10) "Refugee child" means, as defined under ORS 418.925, a person under 18 years of age who has entered the United States and is unwilling or unable to return to the person's country because of persecution or a well-founded fear of persecution on account of race, religion, sex, sexual orientation, nationality, membership in a particular group, or political opinion, or whose parents entered the United States within the preceding 10 years and are or were unwilling or unable to return to their country because of persecution or a well-founded fear of persecution on account of race, religion, sex, sexual orientation, nationality, membership in a particular group, or political opinion.

(a) As used in this section, "persecution" means that harm or suffering will be inflicted upon the person to punish the person for possessing a particular belief or characteristic. "Persecution" does not include harm and suffering that is inflicted on persons generally by reason of civil or military strife in a country.

(b) As used in this section, "fear of persecution" means an apprehension or awareness, based on external objective facts, that the person will suffer persecution upon return to the person's country.

(11) "Relative" means (each of the following individuals is a "relative"):

(a) An individual with one of the following relationships to the child or young adult through the parent of the child or young adult unless the relationship has been dissolved by adoption of the child, young adult, or parent:

(A) Any blood relative of preceding generations denoted by the prefixes of grand, great, or great-great.

(B) Any half-blood relative of preceding generations denoted by the prefixes of grand, great, or great-great (individuals with one common biological parent are half-blood relatives).

(C) A sibling, also to include an individual with a sibling relationship to the child or young adult through a putative father.

(D) An aunt, uncle, nephew, niece, first cousin, and first cousin once removed.

(E) A spouse of anyone listed in paragraphs (A) to (D) of this subsection, even if a petition for annulment, dissolution, or separation has been filed or the marriage is terminated by divorce or death. To be considered a "relative" under this paragraph, the child or young adult must have had a relationship with the spouse prior to the most recent episode of Department custody.

(b) An individual with one of the following relationships to the child or young adult:

(A) An individual defined as a relative by the law or custom of the tribe of the child or young adult if the child or young adult is an Indian child under the Indian Child Welfare Act or in the legal custody of a tribe.

(B) An individual defined as a relative of a refugee child or young adult under Child Welfare Policy I-E.2.2, "Placement of Refugee Children", OAR 413-070-0300 to 413-070-0380.

(C) A stepparent or former stepparent if the child or young adult had a relationship with the former stepparent prior to the most recent episode of Department custody; a stepbrother; or a stepsister.

(D) The registered domestic partner of the parent of the child or young adult or a former registered domestic partner of the parent of the child or young adult if the child or young adult had a relationship with the former domestic partner prior to the most recent episode of Department custody.

(E) The adoptive parent of a sibling of the child or young adult.

(F) The unrelated legal or biological father or mother of a half-sibling of the child or young adult when the half-sibling of the child or young adult is living with the unrelated legal or biological father or mother.

(c) An individual identified by the child or young adult or the family of the child or young adult, or an individual who self-identifies, as being related to the child or young adult through the parent of the child or young adult by blood, adoption, or marriage to a degree other than an individual specified as a "relative" in paragraphs (A) to (D) of subsection (a) of this section unless the relationship has been dissolved by adoption of the child, young adult, or parent.

(d) An individual meeting the requirements of at least one of the following paragraphs:

(A) Not related to the child, young adult, or parent by blood, adoption, or marriage:

(i) Who is identified as a member of the family by the child or young adult or by the family of the child or young adult; and

(ii) Who had an emotionally significant relationship with the child or young adult or the family of the child or young adult prior to the most recent episode of Department custody.

(B) Who has a blood relationship to the child or young adult as described in paragraphs (a)(A) to (D) of this section through the birth parent of the child or young adult, but the prior legal relationship has been dissolved by adoption of the child, young adult, or parent.

(e) For eligibility for the guardianship assistance program:

(A) A stepparent is considered a parent and is 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 to the adoptive or biological parent of the child has been terminated by divorce or death.

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

(i) There is a compelling reason why adoption is not an achievable permanency plan;

(ii) The foster parent is currently caring for a child, in the care or custody of the Department or a participating tribe, who has a permanency plan or concurrent permanent plan of guardianship;

(iii) The foster parent has cared for the child for at least 12 of the past 24 months; and

(iv) The Department or tribe has approved the foster parent for consideration as a guardian.

(12) "Relative caregiver" means an individual who operates a home that has been approved by the Department to provide care for a related child or young adult who is placed in the home by the Department.

(13) "Sibling" means one of two or more children or young adults related:

(a) By blood or adoption through a common legal parent;

(b) Through the marriage of the legal or biological parents of the children or young adults; or

(c) Through a legal or biological parent who is the registered domestic partner of the legal or biological parent of the children or young adults.

(14) "Substitute care" means an out-of-home placement of a child or young adult who is in the legal or physical custody and care of the Department.

(15) "Substitute caregiver" means a relative caregiver, foster parent, or provider who is authorized to provide care to a child or young adult who is in the legal or physical custody of the Department.

(16) "Young adult" means a person aged 18 through 20 years who remains in the care and custody of the Department, and lives in substitute care or lives independently through the Department's Independent Living Subsidy Program.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005, 419A.004 & 419B.192
Hist.: SOSCF 13-1999, f. 7-8-99, cert. ef. 7-12-99; CWP 4-2007, f. & cert. ef. 3-20-07; CWP 26-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 8-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 29-2010, f. & cert. ef. 12-29-10; CWP 1-2013, f. & cert. ef. 1-15-13; CWP 11-2014, f. & cert. ef. 6-3-14

413-070-0625

Identifying and Assessing the Child or Young Adult's Needs when Placement in Substitute Care is Required

(1) To select a substitute care placement that will meet the safety, permanency, and well-being needs of the child or young adult, the caseworker must:

(a) Involve the parent or guardian of the child or young adult and the child or young adult as developmentally appropriate in identifying substitute care placement resources whenever possible.

(b) Assess the ability of each potential substitute caregiver to provide safety for the child or young adult.

(c) Assess the potential substitute care placements in the order of preference under OAR 413-070-0220 and 413-070-0320, when the child or young adult is an Indian child or refugee child.

(d) Except as provided in subsection (c) of this section, assess the potential substitute care placements in the following order of preference:

(A) A relative of the child or young adult who can be certified by the Department;

(B) A person who has a caregiver relationship with the child or young adult and can be certified by the Department;

(C) A foster parent who is certified by the Department, or a provider who is approved through a licensed child-caring agency.

(e) Consider the use of a family meeting to seek the family's placement preferences if more than one person requests to have the child or young adult placed with them; and

(f) Consider whether the potential substitute care placement:

(A) Has the ability to provide safety for the child or young adult and, when there are one or more siblings, each of the siblings;

(B) Is willing to cooperate with any restrictions placed on contact between the child or young adult, and others;

(C) Has the ability to prevent anyone from influencing the child or young adult in regard to the allegations of the case;

(D) Has the ability to support the efforts of the Department to implement the permanent plan for the child or young adult; and

(E) Has the ability to meet the physical, emotional, and educational needs of the child or young adult, including the need of the child or young adult to continue in the same school or educational placement.

(g) Ensure that the substitute care placement is the most home-like, least restrictive available to meet the needs of the child or young adult.

(h) Assure that the race, color, or national origin of the child, young adult, or substitute care placement is not a consideration when assessing a substitute care placement.

(2) When a child or young adult is placed in substitute care and has a sibling who is currently in or also needs substitute care, the caseworker must make diligent efforts to place siblings together unless placing the siblings together is not in the best interests of the child or young adult, or the sibling of the child or young adult.

(3) Within one month of the placement of the child or young adult in a substitute care setting, the caseworker must reconsider whether the substitute caregiver is able to meet the requirements in subsection (1)(f) of this rule and assess whether the following placement considerations are met:

(a) The placement is in close proximity to the parents or guardians of the child or young adult;

(b) The placement is in close proximity to the community of the child or young adult;

(c) If in the best interests of the child and siblings as set forth in section (2) of this rule, the siblings are together in placement; and

(d) The culture and family identity of the child or young adult are supported by the placement.

(4) After consultation with the supervisor, when the caseworker determines the substitute care placement does not meet one or more of the placement considerations in subsection (1)(f) or section (3) of this rule, the caseworker must:

(a) Determine whether remaining in the substitute care placement is in the best interests of the child or young adult;

(b) Work with Department staff to secure another substitute care placement for the child or young adult when appropriate; and

(c) Document the basis for the determination and subsequent actions in the Department's information system.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005 & 419B.192
Hist.: CWP 4-2007, f. & cert. ef. 3-20-07; CWP 26-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 8-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 29-2010, f. & cert. ef. 12-29-10; CWP 1-2013, f. & cert. ef. 1-15-13

413-070-0630

Monitoring the Ongoing Substitute Care Placement Needs of the Child or Young Adult

(1) The caseworker must monitor the substitute care placement of the child or young adult and determine whether the relative caregiver, foster parent, or provider:

(a) Meets the placement considerations of OAR 413-070-0625; and

(b) Manages the supervision needs of the child or young adult as identified in the CANS screening and other current assessments or evaluations of the child or young adult.

(2) The caseworker must assess the ongoing and permanency needs of the child or young adult:

(a) For physical and emotional safety;

(b) To promote and preserve existing attachments to family;

(c) For continuity and familiarity;

(d) For appropriate educational, developmental, emotional, and physical support;

(e) For stability and permanency; and

(f) For maintaining his or her identity and cultural and religious heritage.

(3) During the required face-to-face contacts with the child or young adult, the caseworker must:

(a) Confirm that the substitute caregiver can maintain the safety and well-being of the child or young adult;

(b) Develop and maintain a good working relationship with the child or young adult;

(c) Observe the child or young adult in an age-appropriate and comfortable setting;

(d) Gather updated information on the physical and mental health as well as educational, behavioral, and developmental progress of the child or young adult;

(e) Share updated information about the case plan and permanency plan for the child or young adult with the substitute caregiver and as permitted by state or federal law; and

(f) Document the date, time, and location of the contact, observations, and updated information in the Department's information system.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005, 419B.192
Hist.: SOSCF 13-1999, f. 7-8-99, cert. ef. 7-12-99; CWP 4-2007, f. & cert. ef. 3-20-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 29-2010, f. & cert. ef. 12-29-10; CWP 1-2013, f. & cert. ef. 1-15-13

413-070-0640

Placement Assessment and Matching

(1) The caseworker must assess the extent to which the ongoing needs of the child or young adult for safety, permanency, and well-being:

(a) Are currently met in substitute care at each 90 day case plan review; and

(b) Will be met with a potential adoptive resource or potential guardian during the permanency planning process.

(2) Physical and emotional safety. To determine the extent to which the placement, potential adoptive resource, or potential guardian meets the needs for physical and emotional safety of the child or young adult, the caseworker must determine whether the following conditions exist in the home.

(a) The substitute caregiver, potential adoptive resource, or potential guardian has the skill level or willingness to acquire the skills necessary to meet the physical, emotional, and supervisory needs for the child or young adult;

(b) The substitute caregiver, potential adoptive resource, or potential guardian has the skill level to care for this child or young adult given the age, number, and gender of all other children or young adults in the home;

(c) The behavioral characteristics of children or young adults currently in the placement are such that the substitute caregiver, potential adoptive resource, or potential guardian can protect the child or young adult from further victimization and from harming self or others;

(d) The substitute caregiver, potential adoptive resource, or potential guardian has the ability to protect the child or young adult from inappropriate contact with those who may harm the child or young adult; and

(e) The physical layout of the home permits the substitute caregiver, potential adoptive resource, or potential guardian to safely supervise the children or young adults in the home.

(3) Attachment to family. To determine the extent to which the placement, potential adoptive resource, or potential guardian meets the need of the child or young adult to promote and preserve attachment to his or her family, the caseworker must consider whether:

(a) The family of the child or young adult has expressed a preference in placement;

(b) The child or young adult has requested a particular placement;

(c) The relative caregiver, foster parent, provider, potential adoptive resource, or potential guardian demonstrates the ability --

(A) To promote and support the attachment of the child or young adult through visitation and other types of contact with the family of the child or young adult;

(B) To accommodate the placement of the siblings of the child or young adult in the home;

(C) To accommodate regular contact between the child or young adult and his or her siblings when the child or young adult is not placed with his or her siblings and regular contact is in the best interests of the child or young adult; and

(D) To provide mutual care when both the child and parent require placement. As used in this rule, "mutual care" means the out-of-home placement of a parent and child together where one or both are in the legal custody of the Department.

(4) Continuity and familiarity. To determine the extent that the placement, potential adoptive resource, or potential guardian meets the need of the child or young adult for continuity and familiarity, the caseworker must consider:

(a) The extent of the pre-existing relationship of the child or young adult with the relative caregiver, foster parent, provider, potential adoptive resource, or potential guardian;

(b) The proximity of the placement to the neighborhood, school, or educational placement of the child or young adult, and parent or guardian; and

(c) Whether the relative caregiver, foster parent, provider, potential adoptive resource, or potential guardian can provide a permanent home or facilitate transition to a permanent home for the child or young adult.

(5) To determine the extent that a particular placement, potential adoptive resource, or potential guardian meets the need of the child or young adult for appropriate educational, developmental, emotional, and physical support, the caseworker must consider:

(a) Whether the relative caregiver, foster parent, provider, potential adoptive resource, or potential guardian demonstrates competency in meeting the specific and unique needs of the child or young adult or is acquiring the skills necessary to meet specific and unique needs of the child or young adult;

(b) Whether the ability of the relative caregiver, foster parent, provider, potential adoptive resource, or potential guardian to meet the specific and unique needs of the child or young adult is influenced by the number and type of children in the home; and

(c) Whether the relative caregiver, foster parent, provider, potential adoptive resource, or potential guardian is willing and able to assist with, participate in, and act as an advocate for the child or young adult in his or her education and treatment plan.

(6) Permanent family relationships. To determine the extent that a potential adoptive resource or potential guardian meets the need of the child or young adult for a current and lifelong family relationship, the caseworker must consider:

(a) Whether the potential adoptive resource or potential guardian can permanently integrate the child into the family during childhood.

(b) Whether potential adoptive resource or potential guardian will be accessible and supportive to the child in adulthood.

(7) Stability. To determine the extent to which the placement, potential adoptive resource, or potential guardian meets the need of the child or young adult for stability, the caseworker must consider:

(a) Whether the relative caregiver, foster parent, provider, potential adoptive resource, or potential guardian has expressed a desire to provide permanency for a particular child or young adult;

(b) Whether the ability of the relative caregiver, foster parent, provider, potential adoptive resource, or potential guardian to provide support and to nurture the child or young adult is influenced by the number of children or young adults in the home; and

(c) Whether the capacity of the relative caregiver, foster parent, provider, potential adoptive resource, or potential guardian to recognize the needs of the child or young adult, and build on the strengths of the child or young adult, is sufficient to meet the long-term or lifelong placement needs of the child or young adult.

(8) Identity, development, cultural, religious, and spiritual background and connections. To determine whether the placement, potential adoptive resource, or potential guardian can support the identity, development, and cultural and religious or spiritual background and connections of the child or young adult, the caseworker must consider:

(a) Whether the relative caregiver, foster parent, provider, potential adoptive resource, or potential guardian has the ability to appreciate, nurture, support, and reinforce the identity, development, cultural, religious and spiritual background and connections of the child or young adult;

(b) Whether the relative caregiver, foster parent, provider, potential adoptive resource, or potential guardian has the ability to support the development of the child or young adult, and help the child or young adult with problems that the child or young adult may encounter;

(c) Whether the relative caregiver, foster parent, provider, potential adoptive resource, or potential guardian has the ability to communicate effectively with the child or young adult; and

(d) Whether the child or young adult has adjusted to the placement or is able to adjust to a guardian's home or an adoptive home.

(9) After making the determinations in sections (2) to (8) of this rule, the caseworker must document the extent to which the need of the child or young adult for safety, permanency, and well-being are or can be met:

(a) In the documentation of the 90-day case plan review when the child is in substitute care; or

(b) In the documentation of the selection of a guardian or adoptive resource.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005 & 419B.192
Hist.: SOSCF 13-1999, f. 7-8-99, cert. ef. 7-12-99; CWP 4-2007, f. & cert. ef. 3-20-07; CWP 26-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 8-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 29-2010, f. & cert. ef. 12-29-10; CWP 1-2013, f. & cert. ef. 1-15-13

413-070-0645

Involving the Substitute Caregiver in the Concurrent Permanency Plan

The caseworker must:

(1) Determine whether the relative caregiver, foster parent, or provider is willing to continue as the placement resource, has the skills and abilities to meet the need of the child or young adult for safety and well-being, and is willing to work with the Department while the concurrent permanent plan for the child or young adult is implemented by the Department; and

(2) Provide the relative caregiver, foster parent, or provider with the opportunity to have input into a permanency plan.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005, 419B.192
Hist.: CWP 4-2007, f. & cert. ef. 3-20-07; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 29-2010, f. & cert. ef. 12-29-10

Guardianship as a Permanency Plan

413-070-0651

Purpose

The purpose of these rules (OAR 413-070-0651 to 413-070-0670) is to describe the responsibilities of the Department to determine the appropriate use of guardianship, as established by the court under ORS 419B, as a permanency plan for a child in the care or custody of the Department.

Stat. Auth.: ORS 418.005 & 419B.369
Stats. Implemented: ORS 418.005, 419B.192 & 419B.369
Hist.: CWP 36-2010(Temp), f. & cert. ef. 12-29-10 thru 6-27-11; CWP 7-2011, f. & cert. ef. 6-28-11

413-070-0655

Definitions

The following definitions apply to OAR 413-070-0651 to 413-070-0670:

(1) "Child" means a person under 18 years of age.

(2) "Concurrent permanent plan" means the alternate permanency plan whenever the child has been placed in substitute care when the goal of the permanency plan is to return the child to the parents. The "concurrent permanent plan" is developed simultaneously with the plan to return the child to the parents or legal guardians.

(3) "Department" means the Department of Human Services, Child Welfare.

(4) "Foster care agency" means a private child-caring agency that offers to place children by taking physical custody of and then placing the children in a home certified by the agency.

(5) "Guardian" means an individual who has been granted guardianship of a child through a judgment of the court.

(6) "Guardianship assistance" means assistance provided by the Department to a guardian on behalf of an eligible child to offset the costs associated with meeting the ongoing needs of the child. "Guardianship assistance" may be in the form of a payment, medical coverage, or reimbursement of nonrecurring expenses.

(7) "Parent" means the biological or adoptive mother or the legal father of the child. A legal father is a man who has adopted the child or whose paternity has been established or declared under ORS 109.070, 416.400 to 416.465, or by a juvenile court. In cases involving an Indian child under the Indian Child Welfare Act (ICWA), a legal father includes a man who is a father under applicable tribal law. "Parent" also includes a putative father who has demonstrated a direct and significant commitment to the child by assuming or attempting to assume responsibilities normally associated with parenthood, unless a court finds that the putative father is not the legal father.

(8) "Participating tribe" means a federally recognized Indian tribe in Oregon with a Title IV E agreement with the Department.

(9) "Permanency committee" means a group of individuals who are responsible for making a recommendation regarding a permanency plan or a potential permanency resource when the child or young adult likely is not returning to his or her parent.

(10) "Permanency plan" means a written course of action for achieving safe and lasting family resources for the child. Although the plan may change as more information becomes available, the goal is to develop safe and permanent family resources with the parents, relatives, or other people who will assume legal responsibility for the child during the remaining years of dependency and be accessible and supportive to the child in adulthood.

(11) "Potential guardian" means an individual who:

(a) Has been approved by the Department or participating tribe to be a child's guardian; and

(b) Is in the process of legalizing the relationship to the child through a judgment of the court.

(12) "Relative" means (each of the following individuals is a "relative"):

(a) An individual with one of the following relationships to the child or young adult through the parent of the child or young adult unless the relationship has been dissolved by adoption of the child, young adult, or parent:

(A) Any blood relative of preceding generations denoted by the prefixes of grand, great, or great-great.

(B) Any half-blood relative of preceding generations denoted by the prefixes of grand, great, or great-great (individuals with one common biological parent are half-blood relatives).

(C) A sibling, also to include an individual with a sibling relationship to the child or young adult through a putative father.

(D) An aunt, uncle, nephew, niece, first cousin, and first cousin once removed.

(E) A spouse of anyone listed in paragraphs (A) to (D) of this subsection, even if a petition for annulment, dissolution, or separation has been filed or the marriage is terminated by divorce or death. To be considered a "relative" under this paragraph, the child or young adult must have had a relationship with the spouse prior to the most recent episode of Department custody.

(b) An individual with one of the following relationships to the child or young adult:

(A) An individual defined as a relative by the law or custom of the tribe of the child or young adult if the child or young adult is an Indian child under the Indian Child Welfare Act or in the legal custody of a tribe.

(B) An individual defined as a relative of a refugee child or young adult under Child Welfare Policy I-E.2.2, "Placement of Refugee Children", OAR 413-070-0300 to 413-070-0380.

(C) A stepparent or former stepparent if the child or young adult had a relationship with the former stepparent prior to the most recent episode of Department custody; a stepbrother; or a stepsister.

(D) The registered domestic partner of the parent of the child or young adult or a former registered domestic partner of the parent of the child or young adult if the child or young adult had a relationship with the former domestic partner prior to the most recent episode of Department custody.

(E) The adoptive parent of a sibling of the child or young adult.

(F) The unrelated legal or biological father or mother of a half-sibling of the child or young adult when the half-sibling of the child or young adult is living with the unrelated legal or biological father or mother.

(c) An individual identified by the child or young adult or the family of the child or young adult, or an individual who self-identifies, as being related to the child or young adult through the parent of the child or young adult by blood, adoption, or marriage to a degree other than an individual specified as a "relative" in paragraphs (A) to (D) of subsection (a) of this section unless the relationship has been dissolved by adoption of the child, young adult, or parent.

(d) An individual meeting the requirements of at least one of the following paragraphs:

(A) Not related to the child, young adult, or parent by blood, adoption, or marriage:

(i) Who is identified as a member of the family by the child or young adult or by the family of the child or young adult; and

(ii) Who had an emotionally significant relationship with the child or young adult or the family of the child or young adult prior to the most recent episode of Department custody.

(B) Who has a blood relationship to the child or young adult as described in paragraphs (a)(A) to (D) of this section through the birth parent of the child or young adult, but the prior legal relationship has been dissolved by adoption of the child, young adult, or parent.

(e) For eligibility for the guardianship assistance program:

(A) A stepparent is considered a parent and is 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 to the adoptive or biological parent of the child has been terminated by divorce or death.

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

(i) There is a compelling reason why adoption is not an achievable permanency plan;

(ii) The foster parent is currently caring for a child, in the care or custody of the Department or a participating tribe, who has a permanency plan or concurrent permanent plan of guardianship;

(iii) The foster parent has cared for the child for at least 12 of the past 24 months; and

(iv) The Department or tribe has approved the foster parent for consideration as a guardian.

(13) "Sibling" means one of two or more children or young adults related:

(a) By blood or adoption through a common legal parent;

(b) Through the marriage of the legal or biological parents of the children or young adults; or

(c) Through a legal or biological parent who is the registered domestic partner of the legal or biological parent of the children or young adults.

(14) "Substitute caregiver" means a relative caregiver, foster parent, or provider authorized to provide care to a child or young adult in the legal or physical custody of the Department.

(15) "Young adult" means a person aged 18 through 20 years.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: CWP 36-2010(Temp), f. & cert. ef. 12-29-10 thru 6-27-11; CWP 7-2011, f. & cert. ef. 6-28-11; CWP 11-2014, f. & cert. ef. 6-3-14

413-070-0660

Consideration of Guardianship as a Permanency Plan

(1) The Department 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:

(a) The child is unable to safely return to the home of a parent; and

(b) Adoption is not an appropriate plan based on the best interest of the child.

(2) When considering guardianship as the permanency plan, the caseworker must:

(a) Consult with the child 14 years of age or older;

(b) Seek input from the child as developmentally appropriate, regardless of the age of the child;

(c) 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; and

(d) Document in the Department's information system how the requirements of subsections (a), (b), and (c) of this section were met.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: CWP 36-2010(Temp), f. & cert. ef. 12-29-10 thru 6-27-11; CWP 7-2011, f. & cert. ef. 6-28-11

413-070-0665

Consideration of a Substitute Caregiver as a Potential Guardian

(1) Prior to considering a substitute caregiver as a potential guardian, the caseworker and the caseworker's supervisor must comply with the requirements of both of the following subsections:

(a) Review the Department's diligent efforts to identify, contact, and place a child with relatives and to place siblings together as required under Child Welfare Policy I-E.1.1, "Search for and Engagement of a Child's Relatives", OAR 413-070-0060 to 413-070-0087; and

(b) Confirm there are no current Department actions to:

(A) Identify a child's relative as defined in OAR 413-070-0655(12)(a)–(d);

(B) Assess an identified relative as defined in OAR 413-070-0655(12)(a)–(d) who has either expressed an interest in and needs to be or currently is being assessed as a permanency resource.

(2) In order to be considered as a potential guardian, the substitute caregiver must:

(a) Have a current Certificate of approval from one of the following entities:

(A) The Department under Child Welfare Policy II-B.1, "Certification Standards for Foster Parents, Relative Caregivers, and Pre-Adoptive Parents", OAR 413-200-0301 to 413-200-0396.

(B) Seniors and People with Disabilities Division, OAR 411-346-0100 to 411-346-0230, "Foster Homes for Children with Developmental Disabilities".

(C) A foster care agency under Child Welfare Policy II-C.1.2, "Licensing Foster Care Agencies", OAR 413-215-0301 to 413-215-0396.

(D) A participating tribe when the potential guardian is currently certified as a foster home by the participating tribe as meeting the tribe's certification and licensing standards.

(E) Another state when the potential guardian is currently certified or otherwise approved by the state in which the potential guardian resides and approved as a placement for the child under the Interstate Compact on Placement of Children (ICPC).

(b) Agree with the Department that the child and any sibling under consideration, and the substitute caregiver can maintain a stable relationship and function effectively without Department supervision.

(c) Have an updated home study describing how the substitute caregiver's skills and abilities meet the best interests and needs for safety and permanency for the child and any sibling under consideration.

(d) Have adequate means of financial support and connections to community resources.

(e) Have a strong commitment to caring permanently for the child and any sibling under consideration for whom the substitute caregiver has provided care.

(3) The caseworker must complete all of the following requirements and present the results to a permanency committee, when scheduled:

(a) Assess the ability of the substitute caregiver to provide safety, permanency, and well-being for the child and any sibling under consideration.

(b) Assess with the certifier of the substitute caregiver the extent to which the ongoing needs for safety, permanency, and well-being of the child and any sibling under consideration are being met pursuant to Child Welfare Policy I-E.3.1, "Placement Matching", OAR 413-070-0640.

(c) Assess the commitment of the substitute caregiver to raise the child and any sibling under consideration.

(d) Provide the substitute caregiver with information regarding the duties and responsibilities of a guardian.

(e) Agree that the child, any sibling under consideration, and the substitute caregiver can maintain a stable relationship and function effectively without Department supervision.

(f) Consult with the substitute caregiver regarding guardianship assistance under Child Welfare Policy I-E.3.6.2, "Guardianship Assistance", OAR 413-070-0900 to 413-070-0974.

(A) When guardianship assistance will be requested, inform the substitute caregiver of the eligibility, application, and ongoing requirements of guardianship assistance as described in Child Welfare Policy I-E.3.6.2, "Guardianship Assistance", OAR 413-070-0900 to 413-070-0974.

(B) When guardianship assistance will not be requested or may not be approved due to eligibility restrictions, ensure that the substitute caregiver has sufficient financial support and connections to community resources to meet the needs of the child and any sibling under consideration without this assistance.

Stat. Auth.: ORS 418.005 & 419B.369
Stats. Implemented: ORS 418.005, 419B.192 & 419B.369
Hist.: CWP 36-2010(Temp), f. & cert. ef. 12-29-10 thru 6-27-11; CWP 7-2011, f. & cert. ef. 6-28-11

413-070-0670

Approval and Implementation of a Guardianship Permanency Plan

(1) When the Department is considering a change in a child's permanency plan, the Department makes the determination pursuant to Child Welfare Policy I-E.3.6, "Legal Permanency, Concurrent Planning, and Use of Permanency Committee", OAR 413-070-0500 to 413-070-0519, and the child's caseworker schedules a permanency committee.

(2) The permanency committee must review all of the information presented to the committee and make recommendations to the Child Welfare Program Manager or designee regarding:

(a) Whether guardianship is an appropriate permanency plan for the child; and

(b) Whether the substitute caregiver can meet the child's needs as described in subsection (3)(c) of this rule and should be considered as a potential guardian.

(3) The Child Welfare Program Manager or designee must decide whether guardianship is the appropriate permanency plan for the child based upon:

(a) How a permanency plan of guardianship meets the child's needs, and the requirements of OAR 413-070-0660(1) and (2) and 413-070-0665(2) and (3);

(b) Whether the Department has provided the child and the child's parents an opportunity to identify available permanency;

(c) Whether the substitute caregiver being considered as the potential guardian is able to meet the child's needs pursuant to Child Welfare Policy I-E.3.1, "Placement Matching", OAR 413-070-0640.

(4) Following the Child Welfare Program Manager or designee decision to approve guardianship as a permanency plan, the caseworker must:

(a) Request a permanency hearing before the court within 30 days of the decision.

(b) Prior to the court hearing, provide the court with supporting written documentation regarding the Department's position that:

(A) Guardianship is in the child's best interest; and

(B) Neither placement with parents nor adoption is an appropriate plan.

(5) At the court hearing, the caseworker must:

(a) Recommend that the court approve changing the child's permanency plan to guardianship;

(b) Inform the court whether or not the potential guardian is applying for guardianship assistance; and

(c) When guardianship assistance is being requested, inform the court that after the Department has negotiated the amount or type of guardianship assistance with the potential guardian, a subsequent court hearing will be requested to allow the order of guardianship to be entered.

Stat. Auth.: ORS 418.005
Stats Implemented: ORS 418.005
Hist.: CWP 36-2010(Temp), f. & cert. ef. 12-29-10 thru 6-27-11; CWP 7-2011, f. & cert. ef. 6-28-11

Visits and Other Types of Child and Family Contact

413-070-0800

Purpose

The purpose of these rules (OAR 413-070-0800 to 413-070-0880) is to describe the Department's responsibilities in arranging frequent contact between the child or young adult in substitute care, the child or young adult's parents or guardians, siblings, and other people with whom the child or young adult has a significant connection. In all cases, the contact is intended to:

(1) Be in the best interest of the child or young adult, develop or enhance attachment with the child or young adult's family, including siblings, and continue the child or young adult's relationships with significant others, including siblings;

(2) Reduce the trauma to the child or young adult associated with separation from primary attachment figures; and

(3) Assure that the safety and well-being of the child or young adult are the paramount concerns in developing a child-family contact plan.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: SOSCF 16-2000, f. & cert. ef. 7-17-00; CWP 4-2007, f. & cert. ef. 3-20-07; CWP 9-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 14-2013, f. 12-31-13, cert. ef. 1-1-14

413-070-0810

Definitions

The following definitions apply to OAR 413-070-0800 to 413-070-0880:

(1) "Child" means a person under 18 years of age.

(2) "Child-family contact" means communication between the child or young adult and family and includes but is not limited to visitation with the child or young adult, participation in the child or young adult's activities, and appointments, phone calls, e-mail, and written correspondence.

(3) "Department" means the Department of Human Services, Child Welfare.

(4) "Family member" means any person related to the child by blood, marriage, or adoption, including, but not limited to the parents, grandparents, stepparents, aunts, uncles, sisters, brothers, cousins, or great-grandparents. Family member also includes the registered domestic partner of a person related to the child, a child 12 years of age or older, and when appropriate, a child younger than 12 years of age. In a case involving an Indian child under the Indian Child Welfare Act (ICWA), a "family member" is defined by the law or custom of the child's tribe.

(5) "Foster parent" means a person who operates a home that has been approved by the Department to provide care for an unrelated child or young adult placed in the home by the Department.

(6) "Grandparent" for purposes of visitation, contact, or communication ordered by the court under ORS 419B.876 means the legal parent of the child or young adult's legal parent, as defined in ORS 109.119.

(7) "Guardian" means an individual who has been granted guardianship of a child through a judgment of the court.

(8) "Parent" means the biological or adoptive mother or the legal father of the child. A legal father is a man who has adopted the child or whose paternity has been established or declared under ORS 109.070, 416.400 to 416.465, or by a juvenile court. In cases involving an Indian child under the Indian Child Welfare Act (ICWA), a legal father includes a man who is a father under applicable tribal law. "Parent" also includes a putative father who has demonstrated a direct and significant commitment to the child by assuming or attempting to assume responsibilities normally associated with parenthood, unless a court finds that the putative father is not the legal father.

(9) "Provider" means a person approved by a licensed private child-caring agency to provide care for a child or young adult, or an employee of a licensed private child-caring agency approved to provide care for a child or young adult.

(10) "Relative caregiver" means an individual who operates a home that has been approved by the Department to provide care for a related child or young adult placed in the home by the Department.

(11) "Sibling" means one of two or more children or young adults related:

(a) By blood or adoption through a common legal parent;

(b) Through the marriage of the legal or biological parents of the children or young adults; or

(c) Through a legal or biological parent who is the registered domestic partner of the legal or biological parent of the children or young adults.

(12) "Substitute care" means the out-of-home placement of a child or young adult who is in the legal or physical custody and care of the Department.

(13) "Substitute caregiver" means a relative caregiver, foster parent, or provider who is authorized to provide care to a child or young adult who is in the legal or physical custody of the Department.

(14) "Supervised visit" means a child-family contact that includes a designated third party to protect the emotional and physical safety of a child or young adult.

(15) "Visit" means planned, in-person contact between the child or young adult and one or more family members.

(16) "Young adult" means a person aged 18 through 20 years.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005, 419B.337, 419B.440, 419B.876
Hist.: SOSCF 16-2000, f. & cert. ef. 7-17-00; CWP 4-2007, f. & cert. ef. 3-20-07; CWP 27-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 9-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 14-2013, f. 12-31-13, cert. ef. 1-1-14

413-070-0830

The Right to Visit

Subject to the limitation of section (4) of this rule:

(1) The child or young adult, a parent or guardian, and each sibling have the right to visit each other while the child or young adult is in substitute care. The child or young adult, the parent or guardian, and each sibling have a right to visit as often as reasonably necessary to develop and enhance their attachment to each other.

(2) The Department will prohibit or cancel visits, unless otherwise ordered by the court, when:

(a) There is reason to believe a parent or guardian's acts or omissions would result in child abuse or neglect during the visit;

(b) The child or young adult's safety cannot be managed by supervision;

(c) The visit does not meet the best interests of the child; or

(d) A court order prohibits visits.

(3) When Department resources alone cannot meet the family contact and visitation needs of the child or young adult, the caseworker must solicit help from family and community resources.

(4) If a parent or guardian objects to the contact and visit requirements and limitations that the Department imposes, the parent or guardian may seek the juvenile court's review of the requirements and limitations.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: SOSCF 16-2000, f. & cert. ef. 7-17-00; CWP 4-2007, f. & cert. ef. 3-20-07; CWP 9-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 14-2013, f. 12-31-13, cert. ef. 1-1-14

413-070-0840

Orientation Activities

Prior to the first contact and after each revision of the Visit and Contact Plan developed under OAR 413-070-0860, the Department must explain to the child or young adult's family and substitute caregiver (and the child or young adult when appropriate) the rights and expectations regarding child-family visitation and contact, including its importance to the child or young adult. The Department must explain the reason for arranging supervised or unsupervised visits to the involved parties.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: SOSCF 16-2000, f. & cert. ef. 7-17-00; CWP 4-2007, f. & cert. ef. 3-20-07; CWP 14-2013, f. 12-31-13, cert. ef. 1-1-14

413-070-0855

Determining Priority in Visit and Contact Plans

(1) Unless the court has entered an order regarding visitation by the child or young adult's parents, guardians, siblings, or grandparents, the caseworker determines a hierarchy of the child or young adult's attachments and prioritizes visits with the child or young adult's parents or guardians, and siblings. The caseworker may consider the preferences expressed by the child or young adult.

(2) When the permanency plan is reunification with a parent or guardian, the first priority of the caseworker will be to provide visits with parents or guardians, siblings, and each intervenor granted visitation by the court.

(3) When the permanency plan is a plan other than return to the parents or guardians, the visitation priority of the caseworker shall be to both preserve the child or young adult's attachment to parents or guardians and siblings and promote the child or young adult's attachment to the permanent placement resource.

(4) When appropriate, the caseworker may consider establishing visits with the child or young adult's family members.

(5) When appropriate, the caseworker may consider establishing visits with the child or young adult and non-related persons with whom the child or young adult has a significant attachment.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005, 419B.876
Hist.: SOSCF 16-2000, f. & cert. ef. 7-17-00; CWP 4-2007, f. & cert. ef. 3-20-07; CWP 9-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 14-2013, f. 12-31-13, cert. ef. 1-1-14

413-070-0860

Types of Visit and Contact Plans

(1) The Temporary Visit and Contact Plan.

(a) The caseworker must jointly develop a written Temporary Visit and Contact Plan with the parents or guardians, and may involve the child, family members, safety service providers and the substitute caregiver to participate in facilitating visitation and supporting the ongoing safety plan when the child first enters substitute care or at the time of the first court hearing required by ORS 419B.183, whichever is first. The visits must be planned to manage child safety.

(b) The court may make an order regarding visitation between the child or young adult's parents, siblings, or grandparents.

(c) The caseworker must arrange a Temporary Visit and Contact Plan that assures child safety.

(d) The plan must include the following:

(A) The names of each person, including the child's siblings, with whom the child may have contact; and

(B) A description of the contact permitted with each person that includes:

(i) The type, time of day, frequency, length, and location of the visits; and

(ii) The reason for supervised visits when supervision is required.

(e) If the first visit with the parent or guardian does not occur within the first week of a child's placement in substitute care, the caseworker must document the reason the visit did not occur in case notes in the Department's electronic information system.

(f) The caseworker must provide a copy of the Temporary Visit and Contact Plan to the parents or guardians and to others participating in the Temporary Visit and Contact Plan.

(2) The Ongoing Visit and Contact Plan.

(a) The caseworker must develop an Ongoing Visit and Contact Plan with the parents or guardians within 30 days from the date that the child enters substitute care. The caseworker may involve the child, family members, safety service or treatment providers, and the substitute caregiver to participate in facilitating visitation in the development of the visit and contact plan. A copy of the written plan is given to each participant. The visits must be in the least restrictive manner in which the child or young adult's safety can be managed.

(b) The caseworker may involve grandparents and other relatives, as identified in Child Welfare Policy I-E.1.1, "Search for and Engagement of Relatives", OAR 413-070-0060 to 413-070-0087, in the development of the Ongoing Visit and Contact Plan.

(c) The caseworker must arrange an Ongoing Visit and Contact Plan that supports child safety, the ongoing safety plan, the best interests of the child, and any orders of the court regarding visitation with a child or young adult's parents, siblings, or grandparents.

(d) When an Ongoing Visit and Contact Plan is revised, the caseworker completes a revised Ongoing Visit and Contact Plan and provides a copy of the revised plan to each participant.

(e) A plan that prohibits a parent, guardian, or sibling's visit must include the reason for each prohibition and state, if applicable, the conditions under which the Department would begin or resume contact.

(f) The caseworker must document the implementation of the Ongoing Visit and Contact Plan in the case plan.

(g) The caseworker must develop the written Ongoing Visit and Contact Plan which must:

(A) Include the purpose and conditions of visits and contacts including type, time of day, frequency, length, and location;

(B) Describe the reason for supervision when supervision is required;

(C) Identify the individual who will supervise the visit or assist a parent or guardian in meeting the needs of the child or young adult during visitation;

(D) Support the ongoing safety plan; and

(E) Use language that parents or guardians can understand.

(h) In developing an Ongoing Visit and Contact Plan, the caseworker must:

(A) Arrange visits so that the type, time of day, frequency, length, and location of visits maximize contact between the parents or guardians and the child or young adult, support the ongoing safety plan and support the child or young adult's permanency plan as described in OAR 413-070-0855(2) and (3);

(B) Meet the unique needs of the child or young adult, especially the child or young adult's chronological or developmental age and sense of time as they affect the child or young adult's attachment to a parent or guardian and other family members;

(C) Arrange visits that do not disrupt the school schedule of the child or young adult whenever possible;

(D) Arrange additional contact such as telephone calls, e-mail, and letters, and other activities the family and child or young adult may do together that support the ongoing safety plan, such as attendance by parents or guardians at doctor appointments, school events, and church;

(E) Address barriers to visitation that must be overcome in order for the parent, guardian, child or young adult to participate in the visits, including transportation, adaptations for those traveling long distances, health care requirements, and arranging child care for a child's sibling;

(F) Work within each parent's or guardian's employment and treatment obligations;

(G) Ensure that the Ongoing Visit and Contact Plan considers the safety needs of any non-offending parent or guardian in cases involving domestic violence, including but not limited to different visiting schedules or arranging safe drop-off and pick-up locations;

(H) Explain to a parent or guardian the consequences of failure to attend a visit;

(I) Explain known or anticipated reasons for ending the visit (such as health or safety);

(J) Take the actions necessary to assure culturally relevant and language appropriate visitation services; and

(K) Discuss alternatives when visits are canceled due to circumstances of the parent or guardian, substitute caregiver, or the Department.

(3) The Ongoing Visit and Contact Plan may be reviewed or revised at any time and must be reviewed every 90 days.

(4) An Ongoing Visit and Contact Plan must comply with the Interstate Compact on the Placement of Children (ORS 417.200, Child Welfare Policy I-B.3.4.2, "Interstate Compact on the Placement of Children", OAR 413-040-0200 to 413-040-0330).

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005, 419B.337, 419B.440, 419B.449, 419B.876
Hist.: SOSCF 16-2000, f. & cert. ef. 7-17-00; CWP 4-2007, f. & cert. ef. 3-20-07; CWP 27-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 9-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 14-2013, f. 12-31-13, cert. ef. 1-1-14

413-070-0870

Supervision of Visits

(1) If supervision of visits is necessary to protect the child from harm, manage child safety, or provide therapeutic intervention, the Ongoing Visit and Contact Plan must state the reason for the supervision.

(2) When delegating supervision to a person who is not an employee of the Department, the Department will ensure that the person supervising the visit receives a copy of the Ongoing Visit and Contact Plan, understands the dynamics of the individual family, the purpose of supervision, the specific circumstances that require the supervision, the documentation requirements, and complies with the ongoing safety plan.

(3) When delegating supervision to other Department staff, the Department will ensure the Department employee who participates in the Ongoing Visit and Contact Plan receives a copy of the Ongoing Visit and Contact plan, understands the dynamics of the individual family, the purpose of supervision, the specific circumstances that require the supervision, and the documentation requirements of OAR 413-070-0880.

(4) The caseworker must inform the parents or guardians of the reason for the supervision of the visits or contact, and, as resources allow, all supervision should be culturally relevant and language appropriate.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: SOSCF 16-2000, f. & cert. ef. 7-17-00; CWP 4-2007, f. & cert. ef. 3-20-07; CWP 9-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 14-2013, f. 12-31-13, cert. ef. 1-1-14

413-070-0880

Documentation of Contact

(1) When Department staff supervise a visit, documentation of the visit must be included in the case file and must document:

(a) The location of the visit, who attended, and the length of the visit;

(b) Activities that occurred during the supervised visit;

(c) The impact of the visit on the child or young adult;

(d) Any missed visit and the reasons for the missed visit; and

(e) Any interrupted or terminated visits and reasons for the interruption or termination.

(2) When the caseworker arranges supervision by a person other than Department staff, the caseworker must require that the person supervising the visit provides complete written documentation of the visit, as required by section (1) of this rule, to the caseworker within seven days of each visit.

(3) When the child or young adult is in the legal custody or guardianship of the Department, the caseworker must report to the court no less frequently than every six months, the place and date of the child's or young adult's visits with his or her parents or siblings since the child or young adult has been in the guardianship or legal custody of the Department, and whether the frequency is in the best interest of the child or young adult. Reports must be filed with the court more frequently if the court so orders.

(4) When other types of contact in addition to face-to-face visits are included in the Ongoing Visit and Contact Plan, the caseworker must request regular feedback from the participants regarding the impact of the contact on the child or young adult.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005, 419B.337, 419B.440 & 419B.449
Hist.: SOSCF 16-2000, f. & cert. ef. 7-17-00; CWP 4-2007, f. & cert. ef. 3-20-07; CWP 27-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 9-2008, f. 6-27-08, cert. ef. 6-28-08; CWP 14-2013, f. 12-31-13, cert. ef. 1-1-14

Guardianship Assistance

413-070-0900

Purpose

(1) The purpose of these rules, OAR 413-070-0900 to 413-070-0974, is to describe Department criteria for eligibility and receipt of guardianship assistance for:

(a) A child in the care or custody of the Department or a participating tribe;

(b) A young adult on whose behalf an initial guardianship assistance agreement was entered into when the young adult was a child of age 16 or 17; or

(c) A young adult who qualifies for disability services and on whose behalf an initial guardianship assistance agreement was entered into when the young adult was a child.

(2) The State of Oregon is not responsible for guardianship assistance for a child or young adult placed for guardianship in Oregon by a public child welfare agency other than the Department.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 411.141 & 418.005
Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14

413-070-0905

Definitions

The following definitions apply to OAR 413-070-0900 to 413-070-0974:

(1) "Base rate payment" means a payment to the foster parent or relative caregiver for the costs of providing the child or young adult with the following:

(a) Food — including the cost to cover a child or young adult's special or unique nutritional needs;

(b) Clothing — including purchase and replacement;

(c) Housing — including maintenance of household utilities, furnishings, and equipment;

(d) Daily supervision — including teaching and directing to ensure safety and well-being at a level which is appropriate based on the child or young adult's chronological age;

(e) Personal incidentals — including personal care items, entertainment, reading materials, and miscellaneous items; and

(f) The cost of providing transportation — including local travel associated with expenditure for gas and oil, and vehicle maintenance and repair associated with transportation to and from extracurricular, child care, recreational, and cultural activities.

(2) "CANS screening" means Child and Adolescent Needs and Strengths screening, a process of gathering information on a child or young adult's needs and strengths used for one or more of the following purposes:

(a) Identifying case planning, service planning, and supervision needs of the child or young adult in substitute care with a certified family;

(b) Determining the level of care payment while in substitute care with a certified family; and

(c) Determining the level of care payment included in an adoption assistance agreement or guardianship assistance agreement.

(3) "Child" means a person under 18 years of age.

(4) "Department" means the Department of Human Services, Child Welfare.

(5) "Enhanced supervision" means the additional support, direction, observation, and guidance necessary to promote and ensure the safety and well-being of the child or young adult when the child or young adult qualifies for a level of care payment.

(6) "Guardian" means an individual who has been granted guardianship of a child through a judgment of the court.

(7) "Guardianship assistance" means assistance on behalf of an eligible child or young adult to offset the costs associated with establishing the guardianship and meeting the ongoing needs of the child or young adult. "Guardianship assistance" may be in the form of a payment, medical coverage, or reimbursement of guardianship expenses.

(8) "Guardianship assistance agreement" means a written agreement, binding on the parties to the agreement, between the Department and the potential guardian or guardian setting forth the assistance the Department is to provide on behalf of the child or young adult, the responsibilities of the guardian and the Department, and the manner in which the agreement and amount of assistance may be modified or terminated.

(9) "Guardianship assistance agreement only" means a written agreement, binding on the parties to the agreement, between the Department and the potential guardian or guardian of an eligible child or young adult, when the potential guardian or guardian is not receiving a guardianship assistance payment or medical coverage at the time of the agreement but may request it at a later date.

(10) "Guardianship assistance base rate" means the portion of the guardianship assistance payment that is negotiated with the potential guardian or guardian and cannot exceed the amount of the Oregon foster care base rate payment for the child or young adult's age.

(11) "Guardianship assistance payment" means a monthly payment made by the Department to the guardian on behalf of the eligible child or young adult.

(12) "Guardianship Assistance Review Committee" means a committee composed of local and central office Department staff who have expertise in the area of guardianship.

(13) "Level of care payment" means the payment provided to an approved or certified family, a guardian, a pre-adoptive family, or an adoptive family based on the child or young adult's need for enhanced supervision as determined by applying the CANS algorithm to the results of the CANS screening.

(14) "Nonrecurring guardianship assistance agreement" means a written agreement, binding on the parties to the agreement, between the Department and the potential guardian of an eligible child for a one-time payment to reimburse the guardian for the reasonable and necessary expenses incurred in legally finalizing the guardianship.

(15) "Nonrecurring guardianship expenses" means a one-time payment of up to $2,000 per child that the Department will make to a guardian to assist with the reasonable and necessary expenses associated with obtaining legal guardianship of an eligible child.

(16) "Parent" means the biological or adoptive mother or the legal father of the child. A legal father is a man who has adopted the child or whose paternity has been established or declared under ORS 109.070, 416.400 to 416.465, or by a juvenile court. In cases involving an Indian child under the Indian Child Welfare Act (ICWA), a legal father includes a man who is a father under applicable tribal law. "Parent" also includes a putative father who has demonstrated a direct and significant commitment to the child by assuming or attempting to assume responsibilities normally associated with parenthood unless a court finds that the putative father is not the legal father.

(17) "Participating tribe" means a federally recognized Indian tribe in Oregon with a Title IV E agreement with the Department.

(18) "Permanency committee" means a group of individuals who are responsible for making a recommendation regarding a permanency plan or potential permanency resource when the child or young adult likely is not returning to his or her parent.

(19) "Potential guardian" means an individual who:

(a) Has been approved by the Department or participating tribe to be a child's guardian; and

(b) Is in the process of legalizing the relationship to the child through the judgment of the court.

(20) "Registered domestic partner" means an individual joined in a domestic partnership that is registered with a county clerk in accordance with ORS 106.300 to 106.340.

(21) "Relative" means (each of the following individuals is a "relative"):

(a) An individual with one of the following relationships to the child or young adult through the parent of the child or young adult unless the relationship has been dissolved by adoption of the child, young adult, or parent:

(A) Any blood relative of preceding generations denoted by the prefixes of grand, great, or great-great.

(B) Any half-blood relative of preceding generations denoted by the prefixes of grand, great, or great-great (individuals with one common biological parent are half-blood relatives).

(C) A sibling, also to include an individual with a sibling relationship to the child or young adult through a putative father.

(D) An aunt, uncle, nephew, niece, first cousin, and first cousin once removed.

(E) A spouse of anyone listed in paragraphs (A) to (D) of this subsection, even if a petition for annulment, dissolution, or separation has been filed or the marriage is terminated by divorce or death. To be considered a "relative" under this paragraph, the child or young adult must have had a relationship with the spouse prior to the most recent episode of Department custody.

(b) An individual with one of the following relationships to the child or young adult:

(A) An individual defined as a relative by the law or custom of the tribe of the child or young adult if the child or young adult is an Indian child under the Indian Child Welfare Act or in the legal custody of a tribe.

(B) An individual defined as a relative of a refugee child or young adult under Child Welfare Policy I-E.2.2, "Placement of Refugee Children", OAR 413-070-0300 to 413-070-0380.

(C) A stepparent or former stepparent if the child or young adult had a relationship with the former stepparent prior to the most recent episode of Department custody; a stepbrother; or a stepsister.

(D) The registered domestic partner of the parent of the child or young adult or a former registered domestic partner of the parent of the child or young adult if the child or young adult had a relationship with the former domestic partner prior to the most recent episode of Department custody.

(E) The adoptive parent of a sibling of the child or young adult.

(F) The unrelated legal or biological father or mother of a half-sibling of the child or young adult when the half-sibling of the child or young adult is living with the unrelated legal or biological father or mother.

(c) An individual identified by the child or young adult or the family of the child or young adult, or an individual who self-identifies, as being related to the child or young adult through the parent of the child or young adult by blood, adoption, or marriage to a degree other than an individual specified as a "relative" in paragraphs (A) to (D) of subsection (a) of this section unless the relationship has been dissolved by adoption of the child, young adult, or parent.

(d) An individual meeting the requirements of at least one of the following paragraphs:

(A) Not related to the child, young adult, or parent by blood, adoption, or marriage:

(i) Who is identified as a member of the family by the child or young adult or by the family of the child or young adult; and

(ii) Who had an emotionally significant relationship with the child or young adult or the family of the child or young adult prior to the most recent episode of Department custody.

(B) Who has a blood relationship to the child or young adult as described in paragraphs (a)(A) to (D) of this section through the birth parent of the child or young adult, but the prior legal relationship has been dissolved by adoption of the child, young adult, or parent.

(e) For eligibility for the guardianship assistance program under these rules, OAR 413-070-0900 to 413-070-0974:

(A) A stepparent is considered a parent and is 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 to the adoptive or biological parent of the child has been terminated by divorce or death.

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

(i) There is a compelling reason why adoption is not an achievable permanency plan;

(ii) The foster parent is currently caring for a child, in the care or custody of the Department or a participating tribe, who has a permanency plan or concurrent permanent plan of guardianship;

(iii) The foster parent has cared for the child for at least 12 of the past 24 months; and

(iv) The Department or tribe has approved the foster parent for consideration as a guardian.

(22) "Sibling" means one of two or more children or young adults related:

(a) By blood or adoption through a common legal parent;

(b) Through the marriage of the legal or biological parents of the children or young adults; or

(c) Through a legal or biological parent who is the registered domestic partner of the legal or biological parent of the children or young adults.

(23) "Substitute care" means the out-of-home placement of a child or young adult who is in the legal or physical custody and care of the Department.

(24) "Substitute caregiver" means a relative caregiver, foster parent, or provider authorized to provide care to a child or young adult in the legal or physical custody of the Department.

(25) "Young adult" means a person aged 18 through 20 years.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 409.010, 411.141, 418.005
Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 14-2003, f. & cert. ef. 1-9-03; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 1-2010(Temp), f. & cert. ef. 2-1-10 thru 6-14-10; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14; CWP 11-2014, f. & cert. ef. 6-3-14

413-070-0909

Funding of Guardianship Assistance

(1) When grandparents or other approved relatives make a permanent commitment to and assume legal guardianship of a child for whom they have cared as a substitute caregiver, the Department provides guardianship assistance as described in these rules (OAR 413-070-0900 to 413-070-0974).

(2) Guardianship assistance for Title IV-E children or young adults is funded in part with Title IV-E funds as authorized by the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Public Law 110-351).

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 409.010, 411.141, 418.005
Hist.: CWP 12-2009, f. & cert. ef. 9-28-09; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14

413-070-0917

Eligibility

(1) Eligibility: Child

(a) Guardianship assistance will not be established for a child placed outside of the United States or a territory or possession thereof.

(b) A guardianship assistance agreement must be signed by the potential guardian and a Department representative before guardianship has been legally established by a state or participating tribal court.

(c) To be eligible for guardianship assistance, a child must meet all of the following:

(A) Be a United States citizen or qualified alien as described in Child Welfare Policy I-E.6.1, "Title IV-E Foster Care, Adoption Assistance, and Guardianship Assistance Eligibility", OAR 413-100-0210(2), and in 8 USC 1641(b) or (c).

(B) 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.

(C) The Department or participating tribe has determined that neither return home nor adoption is an appropriate permanency option for the child.

(D) Be eligible for Title IV-E foster care maintenance payments during a six consecutive month period during which the child resided in the home of the potential guardian who was fully licensed, certified, or approved by the state or a participating tribe as meeting the licensure or certification requirements for a foster family home in the state where the home is located. The Department determines a child's eligibility for a Title IV-E maintenance payment under Child Welfare Policy I-E.6.1, "Title IV-E Foster Care, Adoption Assistance and Guardianship Assistance Eligibility", OAR 413-100-0000 to 413-100-0345.

(E) Be in the Department's or participating tribe's care or custody for a minimum of:

(i) Six months, if the potential guardian is the child's relative as defined by OAR 413-070-0905(21)(a) through (d); or

(ii) Twelve months, if the potential guardian is a substitute caregiver who meets the definition of a relative under OAR 413-070-0905(21)(e)(B).

(F) Demonstrate a strong attachment to the potential guardian.

(G) Be consulted regarding the guardianship arrangement when the child has attained 14 years of age.

(2) In order for a child to be determined eligible for guardianship assistance, the following must be documented in the child's case plan:

(a) How the child meets the eligibility requirements;

(b) The steps the Department or participating tribe has taken to determine that return to the home or adoption is not appropriate;

(c) The efforts the Department or participating tribe has made to discuss adoption with the child's relative caregiver and the reasons why adoption is not an option;

(d) The efforts the Department or participating tribe has made to discuss kinship guardianship with the child's parent or parents or the reasons why efforts were not made;

(e) The reason why a permanent placement with a potential relative guardian and receipt of a kinship guardian assistance payment is in the child's best interests; and

(f) The reasons for any separation of siblings during placement. If the child's placement with the potential relative guardian does not include siblings, the case plan must also include a description of the reasons why the child is separated from siblings during placement.

(3) Siblings. Each sibling of a child or young adult eligible for guardianship assistance is also eligible for guardianship assistance without meeting the eligibility requirements set forth in paragraphs (1)(c)(B) to (F) of this rule when:

(a) The sibling is placed in a guardianship with the same potential guardian or guardian, whether the siblings are placed at the same time or not; and

(b) The potential guardian or guardian and the Department or participating tribe agree that both of the following are appropriate:

(A) Placing the child's sibling in the home of the potential guardian or guardian; and

(B) Guardianship as a permanency plan for the sibling.

(4) Extension of Guardianship Assistance for a Young Adult

(a) The Department may approve an extension of a guardianship assistance agreement for an individual under the age of 21 when the individual meets paragraph (A) or (B) of this subsection.

(A) An initial guardianship assistance agreement was entered into on behalf of the child and at the time of the child's 18th birthday, the child:

(i) Qualifies as an individual with a developmental disability as determined by the Oregon Department of Human Services, Developmental Disabilities Services;

(ii) Qualifies as an individual with a developmental disability as determined by the equivalent developmental disability program if living in a state other than Oregon; or

(iii) Qualifies for Supplemental Security Income (SSI) as determined by the Social Security Administration.

(B) An initial guardianship assistance agreement was entered into on behalf of the child who is age 16 or 17, and upon reaching the age of 18, the child is:

(i) Completing secondary school (or equivalent);

(ii) Enrolled in post-secondary or vocational school;

(iii) Participating in a program or activity that promotes or removes barriers to employment;

(iv) Employed for at least 80 hours a month; or

(v) Determined incapable of any of the above due to a documented medical condition, physical disability, or mental disability.

(b) In order for the extension of guardianship assistance under paragraph (a)(A) of this section to be approved on behalf of a young adult, the guardian must submit to the Department documentation from the agency making the determination described in subparagraphs (a)(A)(i) to (iii) of this section.

(c) In order for the extension of guardianship assistance under paragraph (a)(B) of this section to be approved on behalf of a young adult, the guardian must submit to the Department documentation verifying the circumstances described in subparagraphs (a)(B)(i) through (v) of this section. Documentation of circumstances described in subparagraph (a)(B)(v) of this section must be from a medical or mental health professional.

(d) The Department must receive the request for extension of the guardianship assistance agreement and the documentation described in subsections (b) and (c) of this section:

(A) At least 30 calendar days before the individual's 18th birthday; or

(B) Before a date determined by the Department when the Department approves a request from the guardian to submit the documentation after the individual's 18th birthday. The Department must receive the request before the individual's 18th birthday.

(e) If the Department does not receive the documentation as required by subsections (b) through (d) of this section, the Department may not approve an extension of a guardianship assistance agreement.

(f) When an extension of guardianship assistance has been approved under paragraph (a)(A) of this section, guardianship assistance will continue until the young adult turns 21 years old.

(g) When an extension of guardianship assistance has been approved under paragraph (a)(B) of this section, the Department will review the eligibility of the young adult for continued guardianship assistance:

(A) At least annually; or

(B) When information is received that indicates the young adult may no longer be eligible for guardianship assistance or may be eligible for guardianship assistance in a different amount.

(h) The guardian must notify the Department, orally or in writing, of any changes in circumstances that may make the young adult:

(A) Ineligible for guardianship assistance; or

(B) Eligible for guardianship assistance in a different amount.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 409.010, 411.141, 418.005
Hist.: SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14

413-070-0919

Eligibility and Requirements for a Child or Young Adult in the Care or Custody of a Participating Tribe

(1) In addition to guardianship assistance program criteria under these rules, OAR 413-070-0900 to 413-070-0974, the following requirements apply to a child in the care or custody of a participating tribe:

(a) The child must be placed in a foster home approved by the participating tribe that meets the certification and licensing standards of the participating tribe; and

(b) The participating tribe must document how continued placement with the potential guardian is in the best interests of the child and meets the child's needs for safety and permanency.

(2) The participating tribe must:

(a) Conduct and prepare a written home study of the guardian;

(b) Have a current Title IV-E agreement with the Department which includes participation in the guardianship assistance program;

(c) Notify the Adoption Assistance and Guardianship Assistance Unit within 30 calendar days after reestablishing custody of a child or young adult in a guardianship placement established under these rules, OAR 413-070-0900 to 413-070-0974; and

(d) Provide the Adoption Assistance and Guardianship Assistance Unit with a copy of the court order terminating the guardianship within 30 calendar days of the termination, when applicable.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 409.010, 411.141, 418.005
Hist.: CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14

413-070-0925

Eligibility: Prospective Guardian

The Department may approve a potential guardian for guardianship assistance when the potential guardian:

(1) Meets the requirements of Child Welfare Policy I-E.3.6.1, "Guardianship as a Permanency Plan", OAR 413-070-0665(2); and

(2) Agrees to ensure that, if the child has attained the minimum age for compulsory attendance under the law of the state of residence but has not completed secondary school, the child is:

(a) Enrolled in an elementary or secondary school as determined by the law of the state of residence;

(b) Home schooled in accordance with the law of the state of residence;

(c) Enrolled in an independent study program in accordance with the law of the state of residence; or

(d) Incapable of attending school due to a documented medical condition.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 409.010, 411.141, 418.005
Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 1-2010(Temp), f. & cert. ef. 2-1-10 thru 6-14-10; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14

413-070-0930 [Renumbered to 413-070-0939]

413-070-0934

Application Requirements

(1) Except as described in subsections (a) and (b) of this section, the Adoption Assistance and Guardianship Assistance Unit must begin negotiation of the guardianship assistance agreement no later than 60 calendar days after receipt of the completed guardianship assistance application.

(a) The Adoption Assistance and Guardianship Assistance Unit may delay negotiation of the guardianship assistance base rate when the child is due for an updated CANS screening, a new CANS screening is warranted, or a CANS screening is in process or completed but a decision is pending regarding the level of care payment under Child Welfare Policy I-B.1.6, "CANS Screening and Enhanced Supervision", OAR 413-020-0230. The unit must begin negotiation no later than 30 calendar days from receipt of the final decision regarding the level of care payment.

(b) The Adoption Assistance and Guardianship Assistance Unit may delay negotiation following a request by the caseworker, guardian, or potential guardian when there are extenuating circumstances regarding the child or family. The unit must begin negotiation no later than 30 calendar days from notification that the extenuating circumstance causing the delay has been resolved.

(2) A guardianship assistance application is considered complete when the Adoption Assistance and Guardianship Assistance Unit has received a signed application and all supporting documentation.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 409.010, 411.141, 418.005
Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; Suspended by CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0965, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14

413-070-0939

Guardianship Assistance Payments, Medical Assistance, and Nonrecurring Guardianship Expenses

(1) When a guardianship assistance payment or medical assistance is not being provided, a potential guardian or guardian may enter into a guardianship assistance agreement only.

(2) The monthly guardianship assistance payment may not exceed the total of:

(a) The guardianship assistance base rate; and

(b) When applicable, the level of care payment determined by the CANS screening conducted under Child Welfare Policy I-B.1.6, "CANS Screening and Enhanced Supervision", OAR 413-020-0230.

(3) The monthly guardianship assistance base rate:

(a) Is determined through discussion and negotiation between the Department and the potential guardian or guardian.

(b) May not exceed the current foster care base rate payment the child or young adult would be eligible to receive in foster care as determined under Child Welfare Policy I-E.5.1, "Foster Care Payments for a Child or Young Adult Living With a Certified Family or Living Independently", OAR 413-090-0010(1)(b).

(c) Is negotiated between the potential guardian of a child or guardian of a child or young adult and the Department, taking into consideration relevant factors which include, but are not limited to:

(A) The ordinary and special needs of the child or young adult.

(B) The services and goods required to meet the needs of the child or young adult.

(C) The cost of the services and goods required to meet the needs of the child or young adult.

(D) The circumstances of the potential guardian or guardian and their ability to provide the required services and goods for the child or young adult.

(E) The resources available to the potential guardian or guardian such as medical coverage, private health insurance, public education, other income sources, and community resources.

(F) A guardianship assistance payment may be reduced when other sources of income are received by the potential guardian or guardian or the child or young adult.

(d) Is intended to combine with the resources of the potential guardian or guardian to provide for the needs of the child or young adult.

(4) When, during negotiation of the guardianship assistance base rate payment, the Adoption Assistance and Guardianship Assistance Coordinator and the potential guardian or the guardian are unable to reach agreement, the Adoption Assistance and Guardianship Assistance Coordinator, the potential guardian, or the guardian may request a review by the Guardianship Assistance Review Committee. When a review is requested:

(a) An Adoption Assistance and Guardianship Assistance Coordinator must:

(A) Prepare documentation for the scheduled Guardianship Assistance Review Committee;

(B) Notify the potential guardian or guardian and the assigned caseworkers of the date of the committee; and

(C) Attend and participate in the Guardianship Assistance Review Committee.

(b) The potential guardian or guardian may provide written documentation to the Adoption Assistance and Guardianship Assistance Coordinator for review and consideration by the Guardianship Assistance Review Committee.

(c) The certification worker for the potential guardian and the caseworker for the child may participate in a Guardianship Assistance Review Committee meeting and may present information and respond to questions. The workers may not participate in the deliberations of the Guardianship Assistance Review Committee.

(d) The Guardianship Assistance Review Committee members must:

(A) Consider written documentation provided by the potential guardian or guardian, caseworkers, and the Adoption Assistance and Guardianship Assistance Coordinator.

(B) Review materials submitted to the Guardianship Assistance Review Committee, deliberate, and make one or more recommendations regarding the guardianship assistance base rate.

(e) At the conclusion of the Guardianship Assistance Review Committee, the Adoption Assistance and Guardianship Assistance Coordinator must:

(A) Document the recommendations of the Guardianship Assistance Review Committee; and

(B) Submit the documentation to the Post Adoption Services Program Manager or designee within one business day of the Guardianship Assistance Review Committee meeting.

(f) The Post Adoption Services Program Manager or designee must complete each of the following actions:

(A) Attend the Guardianship Assistance Review Committee and ask any clarifying questions, but not participate in the deliberation or recommendation of the Guardianship Assistance Review Committee;

(B) Review and consider:

(i) The materials submitted to the Guardianship Assistance Review Committee;

(ii) The recommendations of the committee; and

(iii) The information presented by the potential guardian or guardian under subsection (4)(b) of this rule.

(C) Make a decision within 30 calendar days of the date of the request for review; and

(D) Provide written notification to the potential guardian or guardian and the Adoption Assistance and Guardianship Assistance Coordinator within ten business days of the decision.

(5) The monthly level of care payment:

(a) Is determined based on the results of a CANS screening conducted under Child Welfare Policy I-B.1.6, "CANS Screening and Enhanced Supervision", OAR 413-020-0230.

(b) Cannot exceed the amount of the level of care payment set forth in Child Welfare Policy I-E.5.1, "Foster Care Payments for a Child or Young Adult Living with a Certified Family or Living Independently", OAR 413-090-0010(2)(g).

(c) Is included in the guardianship assistance payment when the child or young adult qualifies for a level of care payment and when requested by the potential guardian or guardian.

(6) When a potential guardian or guardian is not satisfied with the final guardianship assistance offer from the Department, consisting of the guardianship assistance base rate and, when applicable, a level of care payment, the potential guardian or guardian has the right to a contested case hearing under Child Welfare Policy I-A.5.2, "Contested Case Hearings", OAR 413-010-0500 to 413-010-0535.

(7) An initial guardianship assistance payment begins on the date the state or tribal court legally establishes the guardianship provided there is a written guardianship assistance agreement signed by all parties.

(8) A guardianship assistance payment to a guardian for the child or young adult is inalienable, not assignable or transferable, and exempt from execution, levy, attachment, garnishment, and other legal process under the laws of Oregon, as long as the payment can be identified as a guardianship assistance payment and is kept separate from other money in the guardian's possession.

(9) The guardian may apply to be the designated payee for any benefit the child or young adult receives if the benefit program allows such application.

(10) Medical assistance and social services.

(a) A child or young adult who is the subject of a guardianship assistance agreement funded by Title IV-E funds as authorized by the Fostering Connection to Success and Increasing Adoptions Act of 2008 (Public Law 110-351) is categorically eligible for medical assistance through Title XIX and social services under Title XX when:

(A) The guardianship is in effect; and

(B) A guardianship assistance payment is being made to the guardian.

(b) A child or young adult who is not eligible for Title XIX medical assistance is eligible for medical assistance under Child Welfare Policy I-E.6.2, "Title XIX and General Assistance Medical Eligibility", OAR 413-100-0400 to 413-100-0610, when:

(A) The child or young adult resides in Oregon; or

(B) The child or young adult resides outside of Oregon but in the United States or a territory or possession thereof and is not able to obtain medical assistance in his or her place of residence.

(c) Medical assistance is not provided for a child or young adult who resides outside of the United States or a territory or possession thereof.

(11) Nonrecurring guardianship expenses.

(a) The Department will reimburse a guardian up to $2,000 per eligible child for approved nonrecurring guardianship expenses, including but not limited to:

(A) The cost of a home study;

(B) Court costs;

(C) Attorney fees;

(D) Physical and psychological examinations required for the guardianship; and

(E) Travel to visit with the child prior to placement.

(b) Payment for nonrecurring guardianship expenses may not duplicate expenses covered by the Interstate Compact on Placement of Children (ORS 417.200-417.260) or another resource available to the potential guardian.

(c) Documentation of nonrecurring guardianship expenses is required and must be submitted prior to execution of the nonrecurring guardianship assistance agreement. The nonrecurring guardianship assistance agreement, indicating the nature and amount of the nonrecurring guardianship expenses, must be signed by the potential guardian and a Department representative prior to the establishment of the guardianship.

(d) Payment for nonrecurring guardianship expenses is made when the Department receives the court order establishing the guardianship.

(12) Overpayment.

(a) If the Department issues a guardianship assistance payment on behalf of a child or young adult after the date the guardianship assistance agreement automatically expires, the Department may seek reimbursement of the overpayment and the guardian must repay the Department.

(b) If the guardian fails to comply with any provisions of the guardianship assistance agreement, including failing to notify the Department of any of the events or circumstances described in OAR 413-070-0964 and 413-070-0974(6) and (8), the Department may collect any guardianship assistance payment or medical assistance which the Department would not have provided had the guardian complied with the provisions of the guardianship assistance agreement.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 409.010, 411.141, 418.005
Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 14-2003, f. & cert. ef. 1-9-03; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0930, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 1-2010(Temp), f. & cert. ef. 2-1-10 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14

413-070-0944

Legal Expenses of a Guardian

The Department may not authorize payment for legal services provided:

(1) For the potential guardian or guardian in connection with a contested case hearing; or

(2) To defend or retain a guardianship upon challenge by another party once a guardianship is established.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 411.141 & 418.005
Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0960, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0949

Guardianship Assistance Agreement Requirements

(1) Before a guardian may receive guardianship assistance, there must be a negotiated written guardianship assistance agreement between the Department and the potential guardian or guardian signed by all parties prior to the court order establishing the legal guardianship.

(2) The guardianship assistance agreement must include each of the following:

(a) A statement indicating that a guardianship assistance agreement remains in effect without regard to the state of residency of the guardian.

(b) The effective date of the initial guardianship assistance agreement is the date of the court order of guardianship.

(c) That the Department will pay the nonrecurring guardianship expenses associated with obtaining legal guardianship of the child, to the extent the nonrecurring guardianship expenses do not exceed $2,000 per child.

(d) That the child or young adult for whom the Department is providing a guardianship assistance payment remains eligible for medical assistance provided:

(A) The guardianship remains in effect;

(B) A payment is being made; and

(C) The child or young adult is placed in the United States, a territory or possession thereof.

(e) Information regarding garnishment of guardianship assistance payments as set forth in OAR 413-070-0939(8).

(f) That the guardian agrees to comply with the reporting requirements under OAR 413-070-0964.

(g) That the guardian understands that a guardianship assistance agreement may be reviewed and the guardianship assistance may be adjusted, suspended, or terminated under OAR 413-070-0974.

(h) A statement indicating that the guardian understands that the provisions of ORS 192.558 allow the Oregon Health Plan (OHP) and the OHP managed care plans without the authorization of the guardian, child, or young adult to exchange the following protected health information for the purpose of treatment activities related to the behavioral or physical health of the child or young adult when the child or young adult is the recipient of OHP services:

(A) The name and Medicaid recipient number of the child or young adult;

(B) The name of the hospital or medical provider of the child or young adult;

(C) The Medicaid number of the hospital or medical provider;

(D) Each diagnosis for the child or young adult;

(E) Each treatment activity's date of service;

(F) Each treatment activity's procedure or revenue code;

(G) The quantity of units or services provided; and

(H) Information about medication prescription and monitoring.

(i) The amount of the guardianship assistance and the manner in which it is to be provided.

(j) The basis and requirements for periodic changes in the guardianship assistance payment, in consultation with the guardian, based on the circumstances of the guardian and the needs of the child or young adult.

(k) The additional services and assistance for which the child or young adult and guardian are eligible under the agreement and the procedure by which the guardian may apply for such services.

(l) When the Department has agreed to include such language, that the Department may continue to provide guardianship assistance for a child or young adult when child or young adult moves out of the home of the guardian to attend college or live independently.

(3) The Department must provide the guardian with a copy of the guardianship assistance agreement.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 409.010, 411.141, 418.005
Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 49-2003(Temp), f. 12-31-03, cert. ef. 1-1-04 thru 4-28-04; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0935, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 1-2010(Temp), f. & cert. ef. 2-1-10 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14

413-070-0959

Court Order of Guardianship

(1) Guardianship assistance may only be provided for a legal guardianship established under ORS 419B.365 or ORS 419B.366, as provided under ORS 419B.367 to 419B.369, or as provided by the statutory code or laws of a participating tribe.

(2) The Department or participating tribe may not pursue a court order establishing an assisted guardianship until a guardianship assistance agreement between the Department and the potential guardian has been signed by all parties.

(3) The Department or participating tribe, through counsel if the child is in the care or custody of the Department, must move the court for an order establishing the guardianship and, when the child is in the care or custody of the Department or participating tribe, directing one of the following:

(a) Termination of Department or participating tribe’s care or custody and dismissal of the Department or participating tribe as a party to the case; or

(b) If the child has been committed permanently to the Department, an order setting aside the order of permanent commitment and relieving the Department of responsibility for the care, placement, and supervision of the child.

(4) The Department may not provide guardianship assistance if the court establishes guardianship but orders the Department or participating tribe to continue supervision of the child or guardian.

(5) The guardian is not eligible for payments provided under Child Welfare Policies I-E.5.1, “Foster Care Payments for a Child or Young Adult Living with a Certified Family or Living Independently”, OAR 413-090-0000 to 413-090-0050 and I-E.5.1.2, “Personal Care Services”, OAR 413-090-0100 to 413-090-0210 once the guardianship is effective and the Department’s or participating tribe’s custody of the child is dismissed by court order.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 409.010, 411.141, 418.005
Hist.: SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 49-2003(Temp), f. 12-31-03, cert. ef. 1-1-04 thru 4-28-04; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0937, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14

413-070-0964

Changes That Must be Reported and Annual Report

(1) A guardian receiving guardianship assistance must immediately report, orally or in writing, to the Adoption Assistance and Guardianship Assistance Unit any changes in circumstances of the child, young adult, or guardian that makes the child or young adult ineligible for guardianship assistance including when:

(a) The child or young adult:

(A) Is emancipated;

(B) Dies;

(C) Marries; or

(D) Is adopted.

(b) The court:

(A) Vacates the guardianship; or

(B) Terminates wardship over the child or young adult, unless the guardianship is a tribal court guardianship and the guardianship remains in effect under tribal law.

(2) A guardian receiving guardianship assistance must immediately report, orally or in writing, to the Department's Adoption Assistance and Guardianship Assistance Unit any changes in circumstances of the child, young adult, or guardian that may make the child or young adult ineligible for guardianship assistance including when:

(a) The child or young adult:

(A) Is out of the home of a guardian for more than a thirty-day period or, if more than one guardian, is out of the home of both guardians for more than a thirty-day period;

(B) Has a change in needs including but not limited to eligibility for a change in the level of care payment based on a new CANS screening;

(C) Is placed in substitute care;

(D) Is no longer receiving financial support from a guardian or, if there is more than one guardian, both guardians;

(E) Is incarcerated for more than three consecutive months; or

(F) Has a change in any benefit received other than tribal dividend payments.

(b) A guardian is, or if more than one guardian, both guardians are:

(A) No longer legally responsible for the financial support of the child or young adult;

(B) No longer responsible for the child or young adult; or

(C) No longer providing support to the child or young adult.

(c) A guardian seeks to terminate or modify the guardianship.

(d) The court:

(A) Modifies the guardianship, or

(B) Awards child custody or guardianship to another individual.

(3) A guardian receiving a guardianship assistance payment must immediately report, orally or in writing, to the Adoption Assistance and Guardianship Assistance Unit the following:

(a) When there are two guardians and one guardian dies, the surviving guardian must notify the Department.

(b) When there is a change in address.

(c) When a guardian, child, or young adult is planning to move from his or her state of residency.

(4) Guardians appointed under ORS 419B.367 are required to file an annual report with the court within 30 calendar days after each annual anniversary of the court appointment of guardianship. Guardianships established under a Tribal Court may also have a requirement to send written reports to the court.

(5) The Department may:

(a) Send notification to a guardian of any court reports required under section (4) of this rule;

(b) Request a guardian to submit a copy of the court report to the Department;

(c) Notify the court or participating tribe of circumstances that may affect a child's eligibility for guardianship assistance; and

(d) Send inquiries to a guardian to ensure the child continues to be eligible for guardianship assistance.

(6) Guardians must respond to inquiries from the Adoption Assistance and Guardianship Assistance Unit within 30 calendar days or as required by the unit.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 409.010, 411.141, 418.005
Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 14-2003, f. & cert. ef. 1-9-03; CWP 19-2003(Temp), f. & cert. ef. 1-23-03 thru 6-20-03; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0945 & 413-070-0955, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 1-2010(Temp), f. & cert. ef. 2-1-10 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14

413-070-0969

Renegotiation of a Guardianship Assistance Agreement

(1) A guardian receiving guardianship assistance must immediately report, orally or in writing, to the Adoption Assistance and Guardianship Assistance Unit any changes in circumstances of the child, young adult, or guardian that makes the child or young adult ineligible for guardianship assistance including when:

(a) The child or young adult:

(A) Is emancipated;

(B) Dies;

(C) Marries; or

(D) Is adopted.

(b) The court:

(A) Vacates the guardianship; or

(B) Terminates wardship over the child or young adult, unless the guardianship is a tribal court guardianship and the guardianship remains in effect under tribal law.

(2) A guardian receiving guardianship assistance must immediately report, orally or in writing, to the Department's Adoption Assistance and Guardianship Assistance Unit any changes in circumstances of the child, young adult, or guardian that may make the child or young adult ineligible for guardianship assistance including when:

(a) The child or young adult:

(A) Is out of the home of a guardian for more than a thirty-day period or, if more than one guardian, is out of the home of both guardians for more than a thirty-day period;

(B) Has a change in needs including but not limited to eligibility for a change in the level of care payment based on a new CANS screening;

(C) Is placed in substitute care;

(D) Is no longer receiving financial support from a guardian or, if there is more than one guardian, both guardians;

(E) Is incarcerated for more than three consecutive months; or

(F) Has a change in any benefit received other than tribal dividend payments.

(b) A guardian is, or if more than one guardian, both guardians are:

(A) No longer legally responsible for the financial support of the child or young adult;

(B) No longer responsible for the child or young adult; or

(C) No longer providing support to the child or young adult.

(c) A guardian seeks to terminate or modify the guardianship.

(d) The court:

(A) Modifies the guardianship, or

(B) Awards child custody or guardianship to another individual.

(3) A guardian receiving a guardianship assistance payment must immediately report, orally or in writing, to the Adoption Assistance and Guardianship Assistance Unit the following:

(a) When there are two guardians and one guardian dies, the surviving guardian must notify the Department.

(b) When there is a change in address.

(c) When a guardian, child, or young adult is planning to move from his or her state of residency.

(4) Guardians appointed under ORS 419B.367 are required to file an annual report with the court within 30 calendar days after each annual anniversary of the court appointment of guardianship. Guardianships established under a Tribal Court may also have a requirement to send written reports to the court.

(5) The Department may:

(a) Send notification to a guardian of any court reports required under section (4) of this rule;

(b) Request a guardian to submit a copy of the court report to the Department;

(c) Notify the court or participating tribe of circumstances that may affect a child's eligibility for guardianship assistance; and

(d) Send inquiries to a guardian to ensure the child continues to be eligible for guardianship assistance.

(6) Guardians must respond to inquiries from the Adoption Assistance and Guardianship Assistance Unit within 30 calendar days or as required by the unit.

Stat. Auth.: ORS 411.141 & 418.005 Stats. Implemented: ORS 409.010, 411.141, 418.005
Hist.: CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14

413-070-0970

Guardianship Social Support Services

The guardian or child in an assisted guardianship may request family support services as described in Child Welfare Policy I-B.2.3.1, "Family Support Services", OAR 413-030-0000 to 413-030-0030 from the Department.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 411.141 & 418.005
Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; Suspended by CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11

413-070-0974

Review, Adjustment, Suspension, Expiration, and Termination of Guardianship Assistance

(1) The Department may review a guardianship assistance agreement when the Department:

(a) Receives information indicating that the child or young adult may no longer be eligible for guardianship assistance or may be eligible for guardianship assistance in a different amount, including when the Department receives information regarding any of the circumstances described in OAR 413-070-0964;

(b) Determines, when the child or young adult is not residing in the home of the guardian, that a periodic review of the guardianship assistance agreement is required;

(c) Receives information that indicates a review is necessary based on a change in the needs of the child or young adult or circumstances of the family;

(d) Receives information that the young adult no longer meets the requirements for continued assistance, if the Department has agreed to extend guardianship assistance under OAR 413-070-0917(4); or

(e) Determines that the guardian has not complied with the requirements of the guardianship assistance agreement.

(2) Department review of a guardianship assistance agreement may result in a renegotiation, suspension, adjustment, or termination of the guardianship assistance agreement or guardianship assistance payments.

(3) Guardianship assistance may be adjusted at any time by mutual agreement between the guardian and the Department.

(4) When there is an across-the-board reduction or increase in the base rate payment or level of care payment that the child or young adult would be eligible to receive if the child or young adult were in foster care, the Department may, after a case-by-case review and without concurrence of the guardian, adjust the monthly guardianship assistance payment to an amount that does not exceed the new foster care payment the child or young adult would be eligible to receive if currently in foster care, as follows:

(a) In the case of a reduction, only those payments that exceed the amount the child or young adult would be eligible for if currently in foster care would be reduced, and the reduction would only be to the amount that the child or young adult would be eligible to receive if currently in foster care.

(b) In the case of an increase, the Department, considering the needs of the child or young adult and the circumstances of the guardian, may increase the guardianship assistance payment to an amount that does not exceed the new foster care payment the child or young adult would receive if currently in foster care.

(5) If, upon review under section (1) of this rule or an adjustment under section (4) of this rule, the Department intends to adjust guardianship assistance without the concurrence of the guardian, the Department will provide the guardian and the child or young adult with written notice as described in Child Welfare Policy I-A.5.2, "Contested Case Hearings", OAR 413-010-0500 to 413-010-0535.

(6) Unless terminated under sections (7) or (8) of this rule, the guardianship assistance agreement and the Department's obligation to provide guardianship assistance expires automatically on the date any of the following events occur:

(a) When the child:

(A) Reaches the age of 18 or, when an extension has been granted under OAR 413-070-0917(4), no later than the date identified in the guardianship assistance agreement;

(B) Is emancipated;

(C) Dies;

(D) Marries;

(E) Is adopted; or

(F) No longer meets the requirements for continued guardianship assistance if the Department has agreed to continue guardianship assistance under OAR 413-070-0917(4).

(b) A guardian dies, or if more than one guardian, both die.

(c) The court:

(A) Vacates the guardianship order or otherwise terminates the guardianship;

(B) Terminates wardship over the child or young adult, unless the guardianship is a tribal court guardianship and the guardianship remains in effect under tribal law; or

(C) Appoints another individual as guardian of the child or young adult.

(7) Guardianship assistance may be suspended at any time by mutual agreement between the Department and the guardian.

(8) After a review and on a case-by-case basis, the Department may terminate a guardianship assistance agreement upon ten calendar days written notice to the potential guardian or guardian when the Department determines that:

(a) The potential guardian or guardian is no longer responsible for the child or young adult;

(b) The potential guardian or guardian is no longer providing support to the child or young adult; or

(c) The child or young adult is no longer eligible for guardianship assistance or is eligible for guardianship assistance in a different amount.

(9) If a child receiving guardianship assistance is subsequently adopted by the guardian, the child may be eligible for adoption assistance under Child Welfare Policy I-G.3.1, "Adoption Assistance", OAR 413-130-0000 to 413-010-0130.

Stat. Auth.: ORS 411.141 & 418.005
Stats. Implemented: ORS 409.010, 411.141, 418.005
Hist.: SOSCF 18-1999(Temp), f. & cert. ef. 9-14-99 thru 3-12-00; SOSCF 7-2000, f. & cert. ef. 2-10-00; SOSCF 43-2001, f. 12-31-01, cert. ef. 1-1-02; CWP 14-2003, f. & cert. ef. 1-9-03; CWP 26-2003, f. & cert. ef. 7-31-03; CWP 8-2004, f. & cert. ef. 4-1-04; CWP 5-2009(Temp), f. & cert. ef. 3-31-09 thru 9-27-09; CWP 7-2009(Temp), f. & cert. ef. 7-1-09 thru 9-27-09; CWP 12-2009, f. & cert. ef. 9-28-09; Renumbered from 413-070-0940, CWP 18-2009(Temp), f. & cert. ef. 12-16-09 thru 6-14-10; CWP 1-2010(Temp), f. & cert. ef. 2-1-10 thru 6-14-10; CWP 6-2010, f. & cert. ef. 6-15-10; CWP 11-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 24-2011(Temp), f. 9-30-11, cert. ef. 10-1-11 thru 12-27-11; CWP 30-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2014, f. 1-31-14, cert. ef. 2-1-14

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