Chapter 342 Oregon Laws 2001

AN ACT

HB 2388

Relating to juveniles; amending ORS 151.465 and 419A.200; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 419A.200 is amended to read:

419A.200. (1) Except as provided in ORS 419A.190, any person or entity, including, but not limited to, a party to a juvenile court proceeding under ORS 419B.115 (1) or 419C.285 (1), whose rights or duties are adversely affected by a final order of the juvenile court may appeal therefrom. An appeal from a circuit court shall be taken to the Court of Appeals, and an appeal from a county court shall be taken to the circuit court.

(2) If the proceeding is in the circuit court and no record of the proceedings was kept, the court, on motion made not later than 15 days after the entry of the court’s order, shall grant a rehearing and shall direct that a record of the proceedings be kept. However, the court shall not grant a rehearing in a case barred by ORS 419A.190 without the consent of the child affected by such case. If a rehearing is held, the time for taking an appeal shall run from the date of entry of the court’s order after the rehearing.

(3)(a) The appeal may be taken by causing a notice of appeal, in the form prescribed by ORS 19.250, to be served:

(A) On all parties who have appeared in the proceeding;

(B) On the clerk of the juvenile court; and

(b) The original of the notice with proof of service shall be filed with:

(A) The Court of Appeals if the appeal is from a circuit court; or

(B) The circuit court if the appeal is from a county court.

(c) The notice shall be filed not later than 30 days after the entry of the court’s order. On appeal from the county court, the circuit court shall hear the matter de novo and its order shall be appealable to the Court of Appeals in the same manner as if the proceeding had been commenced in the circuit court.

(4) The counsel in the proceeding from which the appeal is being taken shall file and serve those documents necessary to commence an appeal if the counsel is requested to do so by the party the counsel represents.

[(4)(a) Upon motion of a person, other than the state, entitled to appeal under subsection (1) of this section, if the person was not represented by counsel in the proceeding from which the appeal is being taken, the appellate court shall grant the person leave to file a notice of appeal after the time limits described in subsection (3) of this section if the person shows a colorable claim of error in the proceeding from which the appeal is taken.]

(5)(a) Upon motion of a person, other than the state, entitled to appeal under subsection (1) of this section, the appellate court shall grant the person leave to file a notice of appeal after the time limits described in subsection (3) of this section if:

(A) The person shows a colorable claim of error in the proceeding from which the appeal is taken; and

(B) The person shows that the failure to file a timely notice of appeal is not personally attributable to the person.

(b) A person other than the state shall not be entitled to relief under this subsection for failure to file timely notice of cross-appeal when the state appeals pursuant to subsection [(7)] (8) of this section.

(c) The request for leave to file a notice of appeal after the time limits prescribed in subsection (3) of this section shall be filed no later than 90 days after entry of the order being appealed and shall be accompanied by the notice of appeal sought to be filed. A request for leave under this subsection may be filed by mail and shall be deemed filed on the date of mailing if the request is mailed as provided in ORS 19.260.

(d) The court shall not grant relief under this subsection unless the state has notice and opportunity to respond to the person’s request for relief.

[(5)] (6) An appeal to the Court of Appeals shall be conducted in the same manner as an appeal in an equity suit and shall be advanced on the court’s docket in the same manner as appeals in criminal cases.

[(6)(a)] (7)(a) Except as provided in subsection [(8)] (9) of this section or when otherwise ordered by the appellate court, the filing of an appeal does not suspend the order of the juvenile court nor discharge the child from the custody of the person, institution or agency in whose custody the child may have been placed nor preclude the trial court after notice and hearing from entering such further orders relating to the child’s custody pending final disposition of the appeal as it finds necessary by reason only of matters transpiring subsequent to the order appealed from. Certified copies of any such order shall be filed by the clerk of the juvenile court forthwith with the Court of Appeals.

(b) Notwithstanding the filing of an appeal from a dispositional order entered pursuant to ORS 419B.325 or an order entered pursuant to ORS 419B.449 or 419B.476, the juvenile court may proceed with the adjudication of a petition seeking termination of the parental rights of a parent of the child who is subject to the order from which the appeal is taken.

(c) The appeal of any order entered in a termination of parental rights proceeding under paragraph (b) of this subsection shall be consolidated, if appropriate, with any pending appeal of an order entered under ORS 419B.325, 419B.449 or 419B.476. The consolidated appeal shall be conducted and advanced on the court’s docket in the same manner as termination of parental rights cases.

[(7)] (8) In addition to the state’s right to appeal under subsection (1) of this section, in a juvenile proceeding, the state may take an appeal from the order of a judge or referee from:

(a) An order made prior to an adjudicatory hearing dismissing or setting aside a delinquency petition;

(b) An order made after an adjudicatory hearing in which the juvenile is found to be within the jurisdiction of the court, setting aside the petition for delinquency;

(c) An order made prior to an adjudicatory hearing suppressing or limiting evidence or refusing to suppress or limit evidence; or

(d) An order made prior to an adjudicatory hearing for the return or restoration of things seized.

[(8)] (9) If the state pursuant to subsection [(7)] (8) of this section appeals a preadjudicatory order, and the child is in detention in the same proceeding pursuant to ORS 419C.109, 419C.136, 419C.139, 419C.170 and 419C.173, the juvenile court shall consider release of the child from detention during the pendency of the appeal in accordance with the following provisions:

(a) When the child is charged with an act which would be murder if committed by an adult, release shall be denied when the proof is evident or the presumption strong that the child committed the act.

(b) The child shall be released upon the child’s personal recognizance unless release criteria show to the satisfaction of the juvenile court that the child would not be likely to appear before the court as ordered upon later appearance dates and that such a release is therefore unwarranted. Release criteria shall include the following:

(A) The child’s education and employment status and history and financial condition;

(B) The nature and extent of the child’s family relationships;

(D) Identification of persons who agree to assist the child in attending court at the proper time;

(E) The nature of the current petition;

(F) The child’s juvenile record, if any, and, if the child has previously been released pending trial, whether the child appeared as required;

(G) Any facts indicating the possibility of violations of law if the child is released without restrictions;

(H) Any facts tending to indicate that the child has strong ties to the community; and

(I) Any other facts tending to indicate the likelihood of the child’s appearing before the court as ordered upon later appearance dates.

(c) If the court finds that release of the child on the child’s personal recognizance is unwarranted, it shall order conditional release. The court may impose upon the released child one or more of the following conditions, but shall impose the least onerous condition reasonably likely to assure the child’s later appearance:

(A) Release of the child into the care of a parent or other responsible person or organization for supervising the child and assisting the child in appearing in court. The supervisor shall notify the court immediately in the event that the child breaches the terms of the conditional release.

(B) Reasonable restrictions on the activities, movements, associations and residences of the child.

[(9)] (10) If the child, parent or guardian is shown to be without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the case to represent the person in an appeal as provided in subsections (1) to [(8)] (9) of this section, the court, upon request of the person or upon its own motion, shall appoint suitable counsel to represent the person. Counsel appointed by the court shall be paid compensation determined by the appellate court as provided in ORS 135.055 if the circuit court is the appellate court or as provided in ORS 138.500 if the Court of Appeals or Supreme Court is the appellate court.

[(10)(a)] (11)(a) Where the court appoints counsel to represent the child, it may require the parent, if able, or guardian of the estate, if the estate is able, to pay to the State Court Indigent Defense Account in the General Fund in full or in part the administrative costs of determining the ability of the parents or estate to pay for legal services and the costs of the legal and other services that are related to the provision of appointed counsel.

(b) The test of the parent’s or estate’s ability to pay costs under paragraph (a) of this subsection shall be the same test as applied to appointment of counsel for defendants under ORS 135.050. If counsel is provided at state expense, the court shall apply this test in accordance with the rules of the State Court Administrator adopted under ORS 151.487.

(c) If counsel is provided at state expense, the court shall determine the amount the parents or estate shall be required to pay for the costs of administrative, legal and other services related to the provision of appointed counsel in the same manner as this amount is determined under ORS 151.487.

(d) The court’s order of payment shall be enforceable in the same manner as an order of support under ORS 419B.408 and 419C.600.

[(11)] (12) Where the court appoints counsel and the child, parent or guardian is without sufficient financial means to employ counsel, the compensation for counsel and costs and expenses necessary to the appeal shall be allowed and paid as provided in ORS 135.055 if the circuit court is the appellate court or as provided in ORS 138.500 if the Court of Appeals or Supreme Court is the appellate court.

[(12)] (13) The district attorney or Attorney General shall represent the state in the appeal.

SECTION 2. ORS 151.465 is amended to read:

151.465. (1) There is created a State Court Indigent Defense Account in the General Fund which is continuously appropriated to the State Court Administrator to pay compensation of counsel and other expenses in connection with the legal representation of indigent persons, for which the State Court Administrator is responsible by law. Such expenses shall be paid only from funds specifically appropriated therefor, and no other moneys appropriated to the Judicial Department or State Court Administrator shall be used for these purposes.

(2) All moneys appropriated to the Judicial Department or State Court Administrator to pay compensation of counsel and other expenses in connection with the legal representation of indigent persons for which the State Court Administrator is responsible by law shall be deposited in the State Court Indigent Defense Account.

(3) All money received by the Judicial Department under ORS 151.505 (3) or ORS 135.050 (7), 151.487 (1), 419A.200 [(10)] (11), 419B.198 (1) and 419C.203 (1) shall be deposited in a separate subaccount created in the State Court Indigent Defense Account to be used by the State Court Administrator to reimburse the actual costs and expenses, including personnel expenses, incurred in administration and support of the indigent defense program under ORS 151.430 to 151.495.

SECTION 3. This 2001 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2001 Act takes effect on its passage.

Approved by the Governor June 8, 2001

Filed in the office of Secretary of State June 8, 2001

Effective date June 8, 2001

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