OAR 413-110-0240: Decision to File a Petition to Terminate Parental Rights

(1) Unless one of the exceptions outlined in section (2) of this rule applies, and is so documented in the case plan, DHS shall file a petition to terminate the parental rights of the parents to a child in DHS custody. The local DHS staff, in consultation with the Legal Assistance Specialist, shall decide whether to file a petition to terminate the parental rights to a child who: (a) Has been in foster care for 15 of the most recent 22 months as calculated from the date the child entered substitute care; or (b) Has been determined by the court to be an abandoned child; or (c) Has a parent who has been found by a court of competent jurisdiction to have: (A) Committed murder, of another child of the parent; (B) Committed manslaughter, of another child of the parent; (C) Aided, abetted, attempted, conspired or solicited to commit murder or voluntary manslaughter of another child of the parent; or (D) Committed felony assault that results in serious bodily injury to the child or another child of the parent. (2) DHS however, is not required to file a petition to terminate the parental rights to children meeting the criteria of 413-110-0240(1)(a) through (c) if: (a) The child is being cared for by a relative and the permanent plan is for the child to remain with that relative; (b) DHS has not provided to the family of the child, consistent with the time period in the case plan, and the family's unique needs, including those related ot a disability if applicable, the services DHS deemed necessary for the safe return of the child to the child's home, if the plan required reasonable efforts (or active efforts in the case of an Indian child under the Indian Child Welfare Act) to do so; or (c) Local DHS staff have documented in the case plan a compelling reason for determining that filing such a petition would not be in the best interests of the child. Compelling reasons may include, but are not limited to: (A) A court or Citizens Review Board (CRB) has made a finding at a CRB review, permanency hearing or other hearing that DHS has made "no reasonable efforts" (or "active efforts" in the case of an Indian child under the Indian Child Welfare Act) to make it possible for the child to safely return home, as documented by CRB findings or a court order; (B) A court or DHS has determined that: (i) The parent has made significant measurable progress and continues to make diligent efforts to complete the requirements of the case plan and reunification is likely within a reasonable time, but the parent needs more than 15 months to complete the requirements of the plan as documented by narrative recording on the CF 147A, CF 147B, or Service Agreement; (ii) DHS is working with the non-offending parent to establish a permanent placement as documented by the narrative recording on the CF 147A, CF 147B, or Service Agreement; (iii) There is a viable alternative to termination of parental rights that would free the child for adoption within a reasonable time; (iv) If the child is an Indian child under the Indian Child Welfare Act (ICWA), the Indian child’s tribe opposes adoption and has another plan for permanency for the child, in accordance with the provisions of the ICWA. (C) DHS has determined that adoption is not an appropriate plan for the child for reasons that may include, but are not limited to: (i) A child age 12 years or over or a child less than 12 years of age who is capable of making this decision will not consent to be adopted, and another permanency plan has been identified; (ii) The parent and child have a significant bond, but the parent is unable to safely care for the child and another permanent plan has been identified; (iii) The child has a demonstrated inability to be maintained in a family setting as documented by a professional assessment that may include, but is not limited to, a medical, psychiatric or psychological assessment. (d) If the compelling reason that DHS applied in making the determination that it would not be in the best interest of the child to file a petition to terminate parental rights no longer exists, DHS shall review the decision not to file, to determine if there is another compelling reason not to file the petition, or if it would be in the best interest of the child to proceed with filing. [Publications: Publications referenced are available from the agency.]