Hruby, 304 Or. at 509. In State ex rel Juv. Dept. v. Lauffenberger, 308 Or. 159, 777 P.2d 954 (1989), the Supreme Court, in an analogous context, reaffirmed its understanding that, in custody disputes between parents and nonparents, the "compelling reason" standard from Hruby is not equivalent to the standard necessary to terminate a parent's parental rights. In Lauffenberger, the child had become a ward of the court due to parental neglect.
This case involves child custody, in which a speedy decision is more important, and grandparents do not suggest that the current record is factually incomplete. In State ex rel Juv. Dept. v. Lauffenberger, 308 Or. 159, 777 P.2d 954 (1989), the Supreme Court expressly noted that the "record of the present proceeding is sparse," consisting largely of previous documents and oral summaries by counsel of what various witnesses would say if called, with no significant oral testimony or cross-examination. Id. at 166-67.
We also held that Hruby and Hruby, 304 Or. 500, 748 P.2d 57 (1987), is not applicable to a statutory guardianship proceeding under ORS chapter 126. In the light of State ex rel Juv. Dept. v. Lauffenberger, 308 Or. 159, 163-65, 777 P.2d 954 (1989), we hold that the statutory preference found in ORS 126.035 requires that there be "compelling" or "cogent" reasons to grant a guardianship to a non-parent, if a parent is "qualified and suitable." ORS 126.070 (2) provides, in relevant part:
The court provided a thoughtful ruling demonstrating its consideration of a number of factors relevant to the disposition, including, but by no means limited to, youth's need for accountability to serve youth's best interests in the long term. See State ex rel Juvenile Dept. v. Lauffenberger, 308 Or. 159, 777 P.2d 954 (1989) (recognizing, in the juvenile dependency context, that "best interests" refers to a child's interests in both the short term and long term); see also, e.g., State v. N. R. L., 249 Or.App. 321, 332, 277 P.3d 564 (2012) (explaining that ordering restitution in juvenile delinquency cases can serve a rehabilitative purpose, "by holding the youth offender accountable for his or her actions" and impressing upon the youth "the seriousness and cost of his offense" (internal quotation marks omitted)). We do not view the court as having conflated punishment with accountability, as youth contends, or as having lost sight of the need to determine what placement was in youth's best interests.
The statute does not grant an intervenor any substantive rights but, rather, only the right to be heard. State ex rel Juv. Dept. v. Lauffenberger, 308 Or. 159, 163, 777 P.2d 954 (1989). Because the statute does not give Fuller the rights of a parent, the procedures required for termination of parental rights are not applicable to the decision to withdraw intervention.
In so doing, the court confused the issues actually in controversy in this proceeding. See State ex rel Juv. Dept. v. Lauffenberger, 308 Or. 159, 163, 777 P.2d 954 (1989) ("ORS 109.119 provides only procedural rights to persons who claim the specified emotional relationship with the child; the statute does not establish or change substantive custodial rights.
However, despite that language, it has been held that, if the custody dispute is between a person coming within the statute and a natural parent, the natural parent must be awarded custody unless there are compelling reasons for giving custody to another party. Hruby and Hruby, 304 Or. 500, 502, 748 P.2d 57 (1987); see also State ex rel Juv. Dept. v. Lauffenberger, 308 Or. 159, 777 P.2d 954 (1989). That standard was applied in the earlier proceeding awarding permanent custody to grandparents.
The court held there that natural parents enjoy a conclusive preference in custody disputes with other persons "unless there are compelling reasons for giving custody to another party." 304 Or at 502; see also State ex rel Juv. Dept. v. Lauffenberger, 308 Or. 159, 777 P.2d 954 (1989). This is not a custody case, and ORS 109.322 recognizes and establishes by statute a compelling and cogent reason for allowing adoption without a parent's consent.