§ 2.3 Rights of Parents, Guardians, and Putative Fathers

LibraryJuvenile Law: Dependency (OSBar) (2017 Ed.)
§ 2.3 RIGHTS OF PARENTS, GUARDIANS, AND PUTATIVE FATHERS

§ 2.3-1 Overview: Who Are Parents, Guardians, and Putative Fathers?

§ 2.3-1(a) Parents

A child's or ward's parent is a party to the dependency and ter-mination-of-parental-rights (TPR) proceedings. ORS 419B.875(1)(a)(B). The Juvenile Code defines a parent as:

[T]he biological or adoptive mother and the legal parent of the child, ward, youth or youth offender. As used in this subsection, 'legal parent means:
(a) A person who has adopted the child, ward, youth or youth offender or whose parentage has been established or declared under ORS 416.400 to 416.465 [administrative establishment of parentage] or section 2 of this 2017 Act [Or Laws 2017, ch 651] or by a juvenile court [as provided by ORS 419B.395]; and
(b) In cases in which the Indian Child Welfare Act applies, a man who is a father under applicable tribal law.

ORS 419A.004(19), as amended by Or Laws 2017, ch 651, § 41 (effective January 1, 2018). The Indian Child Welfare Act of 1978 (ICWA) defines a parent as:

[A]ny biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.

25 USC § 1903(9). The definition of parent as provided by ICWA includes both Indian and non-Indian biological parents. In Interest of H.D., 11 Kan App 2d 531, 729 P2d 1234, 1236 (1986).

NOTE: The 2017 Oregon Legislature modified the laws regarding the establishment of parentage. Or Laws 2017, ch 651. The attorney should refer to ORS 109.070 (2017) for authority regarding the establishment of paternity and change of designation of paternity in proceedings commenced before January 1, 2018. See ORS 109.070(1) (2017) (various methods of establishing paternity for a child); ORS 109.070(2)-(5) (2017) (various methods of challenging and disestablishing paternity). For authority regarding the establishment of parentage in proceedings commenced on or after January 1, 2018, the attorney should refer to Or Laws 2017, ch 651, § 2. See Or Laws 2017, ch 651, § 54 (specifying what proceedings the new and amended laws apply to).

§ 2.3-1(b) Guardians

A child's guardian is a party to the dependency and TPR proceedings. ORS 419B.875(1)(a)(B). The Juvenile Code defines guardian as "guardian of the person and not guardian of the estate." ORS 419A.004(15). The Juvenile Code contemplates that parents and legal guardians will participate in the proceedings. See ORS 419B.875.

A guardian whose role has not been legally formalized may qualify as a party in the dependency proceeding through intervention if the guardian follows the procedures outlined in ORS 419B.116 and is successfully granted party status as an intervenor. See § 2.5-4.

NOTE: Guardianships can be established by the juvenile court under ORS 419B.365 to 419B.371 (describing permanent and durable guardianships) or by the probate court under ORS chapters 125 and 109. But see Kelley v. Gibson, 184 Or App 343, 349-50, 56 P3d 925 (2002) (a juvenile court is the exclusive means of establishing a guardianship for children who are wards of the juvenile court). For further discussion of guardianships, see § 11.2-3 to § 11.2-3(c).

§ 2.3-1(c) Putative Father

A putative father means an alleged biological father, either self-alleged or alleged by the mother, who has not established paternity. Not all putative fathers have legal standing or rights in dependency and TPR proceedings. For a putative father to have legal standing in the dependency and TPR proceedings, the putative father must have "demonstrated a direct and significant commitment to the child or ward by assuming, or attempting to assume, responsibilities normally associated with parenthood." ORS 419B.875(1)(a)(C). Those responsibilities include, but are not limited to, residing with the child, contributing to the financial support of the child, or establishing psychological ties with the child. ORS 419B.875(1)(a)(C). A putative father as identified under ORS 419B.875(1)(a)(C) has the same legal standing and rights in the dependency and TPR proceedings as a parent. ORS 419B.875(3), as amended by Or Laws 2017, ch 651, § 1 (effective January 1, 2018) ("A putative father who satisfies the criteria set out in subsection (1)(a)(C) of this section shall be treated as a parent, . . . until the court confirms his parentage or finds that he is not the legal or biological parent of the child or ward."). In addition, a putative father who meets the criteria set forth in ORS 419B.875(1)(a)(C) is entitled to receive services from DHS. However, the putative father is not a legal father unless and until paternity or parentage is established under ORS 109.070 (2017) (establishing paternity), Or Laws 2017, ch 651, § 2 (establishing parentage), ORS 416.400-416.465 (administrative establishment of parentage), or ORS 419B.395, as amended by Or Laws 2017, ch 651, § 42 (effective January 1, 2018) (parentage established in juvenile court). A father who meets the statutory requirements is often referred to as a Stanley-type putative father. See generally Stanley v. Illinois, 405 US 645, 92 S Ct 1208, 31 L Ed 2d 551 (1972).

NOTE: When a putative father appears in a juvenile proceeding and a filiation proceeding is not pending, the juvenile court must inquire about (1) the paternity of the child, (2) the putative father's past endeavors to support the child, (3) whether the putative father has lived with the child, (4) whether he is fit to care for and rear the child, and (5) whether he is willing to be declared the father of the child and assume the responsibilities of a father. ORS 109.098(1)(b).

If a filiation proceeding is pending, then a putative father may ask the juvenile court to abate the juvenile proceedings until the outcome of the filiation proceeding is known. ORS 109.098(1)(a). The putative father, upon a showing that he is fit and willing to assume the responsibilities of a father, may request the juvenile court to declare his paternity and award him custody or other parental rights. ORS 109.098(2)(a).

However, a putative father who has had little or no contact with the child and has not attempted to assume parental responsibilities of the child is not a party to the dependency and TPR proceedings and, as such, has no rights. See ORS 419B.875(1)(a)(C); see also Lehr v. Robertson, 463 US 248, 262-65, 267-68, 103 S Ct 2985, 77 L Ed 2d 614 (1983) (the biological father's rights under the Due Process and Equal Protection Clauses were not violated by failure of a New York statute to require notice and an opportunity to be heard before his child was adopted, because the biological father had never had any significant custodial, personal, or financial relationship with the child); P and P v. Children's Servs. Div., 66 Or App 66, 72-73, 673 P2d 864 (1983) (ORS 109.096(2), the statute providing that notice of adoption need not be given to a putative father except under certain circumstances, is not unconstitutional). A putative father who has not assumed or attempted to assume parental responsibilities for the child is also referred to as a Pagan-type putative father. See P and P, 66 Or App at 72. DHS is not required to search for or provide services to a Pagan-type putative father.

PRACTICE TIP: There may be some cases in which an alleged biological father of a newborn may not have had the opportunity to establish a relationship or assume parental responsibility for the child. Accordingly, prudence dictates that such persons should be
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