Chapter 480 Oregon Laws 2001

AN ACT

HB 2336

Relating to juvenile court appeals; creating new provisions; amending ORS 151.450, 151.465, 169.770, 419A.200, 419A.262, 419B.449, 419B.476, 419C.626 and 419C.656; repealing sections 1 and 2, chapter 342, Oregon Laws 2001 (Enrolled House Bill 2388); and declaring an emergency.

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

SECTION 1. Section 2 of this 2001 Act is added to and made a part of ORS chapter 419A.

SECTION 2. (1) For the purpose of being appealed, the following are judgments:

(a) A judgment finding a child to be within the jurisdiction of the court;

(b) A judgment disposing of a petition including, but not limited to, a disposition under ORS 419B.325;

(c) Any final disposition of a petition; and

(d) A final order adversely affecting the rights or duties of a party and made in a proceeding after judgment including, but not limited to, a final order under ORS 419B.449 or 419B.476.

(2) An appeal from a judgment finding a child to be within the jurisdiction of the court does not deprive the juvenile court of jurisdiction to proceed with a disposition of the matter.

(3) If an appeal is taken from a judgment finding a child to be within the jurisdiction of the court before the juvenile court enters a judgment disposing of the matter under ORS 419B.325, any necessary modification of the appeal must be made according to the rules of the appellate court.

(4) When an appeal is taken from a judgment finding a child to be within the jurisdiction of the court, if the appellate court:

(a) Reverses the judgment, the judgment disposing of the matter is reversed; or

(b) Modifies the judgment, a party may move for relief as otherwise provided by law.

SECTION 3. 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] judgment 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] judgment, 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] judgment 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 trial court administrator or other person serving as 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] judgment. On appeal from the county court, the circuit court shall hear the matter de novo and its [order] judgment shall be appealable to the Court of Appeals in the same manner as if the proceeding had been commenced in the circuit court.

(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:

(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] is not entitled to relief under this subsection for failure to file timely notice of cross-appeal when the state appeals pursuant to [subsection (7) of this section] section 5 of this 2001 Act.

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

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

(5) 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] under ORS chapter 19 except that:

(a) The court shall advance the appeal on the court’s docket in the same manner as appeals in criminal cases; and

(b) The court’s scope of review is de novo on the record.

(6)(a) Except as provided in [subsection (8) of this section] section 5 (2) of this 2001 Act or when otherwise ordered by the appellate court, the filing of an appeal does not suspend [the] an order or judgment 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] juvenile 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 or judgment appealed from. The trial court administrator shall immediately file certified copies of any such order [shall be filed by the clerk of the juvenile court forthwith] or judgment with the Court of Appeals.

(b) Notwithstanding the filing of an appeal from a jurisdictional or dispositional [order entered pursuant to ORS 419B.325] judgment 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] judgment from which the appeal is taken.

(c) The appeal of any [order] judgment 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 or judgment 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) 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) If the state pursuant to subsection (7) 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;]

[(C) The child’s past and present residences;]

[(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.]

[(C) Any other reasonable restriction designed to assure the child’s appearance.]

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

SECTION 3a. If House Bill 2388 becomes law, section 1, chapter 342, Oregon Laws 2001 (Enrolled House Bill 2388) (amending ORS 419A.200), is repealed and ORS 419A.200, as amended by section 3 of this 2001 Act, 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 judgment 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 judgment, 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 judgment 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 trial court administrator or other person serving as 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 judgment. On appeal from the county court, the circuit court shall hear the matter de novo and its judgment 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)] (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 is not entitled to relief under this subsection for failure to file timely notice of cross-appeal when the state appeals pursuant to section 5 of this 2001 Act.

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

(d) The court may 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 under ORS chapter 19 except that:

(a) The court shall advance the appeal on the court’s docket in the same manner as appeals in criminal cases; and

(b) The court’s scope of review is de novo on the record.

[(6)(a)] (7)(a) Except as provided in section 5 (2) of this 2001 Act or when otherwise ordered by the appellate court, the filing of an appeal does not suspend an order or judgment 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 juvenile 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 or judgment appealed from. The trial court administrator shall immediately file certified copies of any such order or judgment with the Court of Appeals.

(b) Notwithstanding the filing of an appeal from a jurisdictional or dispositional judgment 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 judgment from which the appeal is taken.

(c) The appeal of any judgment 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 or judgment 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) The district attorney or Attorney General shall represent the state in the appeal.

SECTION 4. Sections 5 and 6 of this 2001 Act are added to and made a part of ORS chapter 419A.

SECTION 5. (1) In addition to the state’s right to appeal under ORS 419A.200, the state may appeal from any of the following orders of a judge or referee:

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

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

(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.

(2) If the state pursuant to subsection (1) 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 that 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;

(C) The child’s past and present residences;

(D) The names 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 that the child will appear 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 ensure 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 immediately notify the court 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.

(C) Any other reasonable restriction designed to ensure the child’s appearance.

SECTION 6. (1) 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 ORS 419A.200 and section 5 of this 2001 Act, 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 the Supreme Court is the appellate court.

(2)(a) When 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.

(3) When 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 the Supreme Court is the appellate court.

SECTION 7. ORS 419A.262 is amended to read:

419A.262. (1) An expunction proceeding shall be commenced in the county where the subject person resided at the time of the most recent termination.

(2) Upon application of either a person who is the subject of a record or a juvenile department, or upon its own motion, the juvenile court shall order expunction if, after a hearing when the matter is contested, it finds that:

(a) At least five years have elapsed since the date of the person’s most recent termination;

(b) Since the date of the most recent termination, the person has not been convicted of a felony or a Class A misdemeanor;

(d) The person is not within the jurisdiction of any juvenile court on the basis of a petition alleging an act or behavior as defined in ORS 419B.100 (1)(a) to (c) and (f) or 419C.005; and

(e) The juvenile department is not aware of any pending investigation of the conduct of the person by any law enforcement agency.

(3) In the case of an application by the juvenile department or of the court acting upon its own motion, expunction shall not be ordered if actual notice of expunction has not been given to the person in accordance with subsection (10) of this section unless the person has reached 21 years of age.

(4) When a person who is the subject of a record kept by a juvenile court or juvenile department reaches 18 years of age, the juvenile court, after a hearing when the matter is contested, shall order expunction if:

(a) The person never has been found to be within the jurisdiction of the court; or

(b) The conditions of subsection (2) of this section have been met.

(5) Expunction shall not be ordered under this section if actual notice of expunction has not been given to the person in accordance with subsection (10) of this section unless the person has reached 21 years of age.

(6) Subsections (4) and (5) of this section shall apply only to cases which result in termination after September 13, 1975.

(7) Notwithstanding subsections (2) and (4) to (6) of this section, upon application of a person who is the subject of a record kept by a juvenile court or juvenile department, upon application of the juvenile department, or upon its own motion, the juvenile court, after a hearing when the matter is contested, may order expunction of all or any part of the person’s record if it finds that to do so would be in the best interests of the person and the public. In the case of an application by the juvenile department or of the court acting upon its own motion, expunction shall not be ordered if actual notice of expunction has not been given to the person in accordance with subsection (10) of this section unless the person has reached 21 years of age.

(8) When an expunction proceeding is commenced by application of the person whose records are to be expunged, the person shall set forth as part of the application the names of the juvenile courts, juvenile departments, institutions and law enforcement and other agencies which the person has reason to believe possess an expungible record of the person. The juvenile department shall provide the names and addresses of the juvenile courts, juvenile departments, institutions and law enforcement and other agencies which a reasonable search of department files indicates have expungible records.

(9) When an expunction proceeding is commenced by application of the juvenile department or upon the court’s own motion, the application or motion shall set forth the names and addresses of the juvenile courts, juvenile departments, institutions and law enforcement and other agencies which a reasonable search of department files indicates have expungible records and those provided by the subject person.

(10) Notice of an application for expunction under subsections (2) to (7) of this section shall be given to:

(a) The district attorney of the county in which the expunction proceeding is commenced and the district attorney of each county in which the record sought to be expunged is kept; and

(b) The person who is the subject of the record if the person has not initiated the expunction proceeding.

(11) Within 30 days of receiving the notice of application for expunction under subsection (10) of this section, a district attorney shall give written notice of any objection and the grounds therefor to the person whose records are to be expunged and to the juvenile court. If no objection is filed the court may decide the issue of expunction either without a hearing or after full hearing pursuant to subsections (12) to (15) of this section.

(12) When an expunction is pending pursuant to subsections (2) to (7) of this section, the court may proceed with or without a hearing, except that:

(a) The court may not enter an [order of] expunction judgment without a hearing if a timely objection to expunction has been filed pursuant to subsection (11) of this section; and

(b) The court may not deny an expunction without a hearing if the proceeding is based on an application of the subject.

(13) Notice of a hearing on a pending expunction shall be served on the subject and any district attorney filing a timely objection pursuant to subsection (11) of this section.

(14) The court shall conduct a hearing on a pending expunction in accord with the provisions of ORS 419B.195, 419B.198, 419B.201, 419B.205, 419B.208, 419B.310, 419B.317 and 419B.320. Rules of evidence shall be as in a hearing to establish juvenile court jurisdiction and as defined in ORS 419B.310 (4) and 419C.400 (2). The burden of proof shall be with the party contesting expunction.

(15) At the conclusion of a hearing on a pending expunction, the court shall issue [an order] judgment granting or denying expunction. [Such order shall be a final order of the court for purposes of appeal.]

(16) The juvenile court or juvenile department shall send a copy of an expunction [order] judgment to each agency subject to the [order] judgment. Upon receipt of a copy of the [order] judgment, an agency subject thereto shall comply and, within 21 days of the date of receipt, return the copy to the juvenile court or juvenile department with an indorsement indicating compliance.

(17) When all agencies subject to an expunction [order] judgment have indicated their compliance or in any event no later than six weeks following the date the [order] judgment was delivered as required by subsection (16) of this section, the juvenile court shall provide the person who is the subject of the record with a copy of the expunction [order] judgment, a list of complying and noncomplying agencies, and a written notice of rights and effects of expunction. The juvenile court and juvenile department then shall expunge forthwith all records which they possess and which are subject to the [order] judgment, except the original expunction [order] judgment and the list of complying and noncomplying agencies which shall be preserved under seal.

(18) In addition to those agencies identified in ORS 419A.260 (1)(d), the juvenile, circuit, municipal and justice courts, and the district and city attorneys of this state, are bound by an expunction [order] judgment of any juvenile court of appropriate jurisdiction in this state issuing an [order of] expunction judgment.

(19) Upon entry of an expunction [order] judgment, the contact which is the subject of the expunged record shall not be disclosed by any agency. An agency that is subject to an expunction [order] judgment shall respond to any inquiry about the contact by indicating that no record or reference concerning the contact exists.

(20) A person who is the subject of a record which has been expunged under this section may assert that the record never existed and that the contact, which was the subject of the record, never occurred without incurring a penalty for perjury or false swearing under the laws of this state.

(21) Juvenile courts, by court rule or by order related to a particular matter, may direct that records concerning a subject person be destroyed. No such records shall be destroyed until at least three years have elapsed after the date of the subject’s most recent termination. In the event the record has been expunged, the [order of] expunction judgment and list of complying and noncomplying agencies shall not be destroyed, but shall be preserved under seal. The destruction herein defined does not constitute expunction.

(22) An [order of] expunction judgment and list of complying and noncomplying agencies shall be released from confidentiality only on order of the court originating the [order of] expunction judgment, based on a finding that review of a particular case furthers compliance with the expunction provisions of this chapter.

(23) A subject has a right of action against any person who intentionally violates the confidentiality provisions of this section. In any such proceeding, punitive damages up to an amount of $1,000 may be sought in addition to any actual damages. The prevailing party shall be entitled to costs and reasonable attorney fees.

(24) Intentional violation of the confidentiality provisions of this section by a public employee is cause for dismissal.

(25) A person who intentionally releases all or part of an expunged record commits a Class C misdemeanor.

SECTION 8. ORS 419B.449 is amended to read:

419B.449. (1) Upon receiving any report required by ORS 419B.440 and 419B.443, the court may hold a hearing to review the child’s condition and circumstances and to determine if the court should continue jurisdiction over the child or order modifications in the care, placement and supervision of the child. The court shall hold a hearing:

(a) In all cases under ORS 419B.440 (3) where the parents’ rights have been terminated; or

(b) If requested by the child, the attorney for the child, if any, the parents or the public or private agency having guardianship or legal custody of the child within 30 days of receipt of the notice provided in ORS 419B.452.

(2) The hearing provided in subsection (1) of this section shall be conducted in the manner provided in ORS 419B.310, except that the court may receive testimony and reports as provided in ORS 419B.325. At the conclusion of the hearing, the court shall enter findings of fact if the decision is to continue the child in substitute care. Such findings shall specifically state:

(a) Why continued care is necessary as opposed to returning the child to the child’s home or taking prompt action to secure another permanent placement; or

(b) The expected timetable for return or other permanent placement.

(3) In making the findings under subsection (2) of this section, the court shall consider the efforts made to develop the concurrent case plan, including, but not limited to, identification and selection of a suitable adoptive placement for the child when adoption is the concurrent case plan.

(4) In addition to findings of fact required by subsection (2) of this section, the court may order the State Office for Services to Children and Families to consider additional information in developing the case plan or concurrent case plan.

[(5) Any decision of the court made pursuant to the hearing provided in subsection (1) of this section shall be a final order for the purposes of ORS 419A.200.]

SECTION 9. ORS 419B.476 is amended to read:

419B.476. (1) The permanency hearing shall be conducted in the manner provided in ORS 419B.310, 419B.317 and 419B.320, except that the court may receive testimony and reports as provided in ORS 419B.325.

(2)(a) At a permanency hearing conducted under ORS 419B.470 (2), if the case plan is to reunify the family, the court shall determine whether the State Office for Services to Children and Families has made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the child to safely return home and whether the parent has made sufficient progress to make it possible for the child to safely return home. In making its determination, the court shall consider the child’s health and safety the paramount concerns.

(b) If the office has made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the child to safely return home and the parent has not made sufficient progress to allow the child to safely return home, the rebuttable presumption in ORS 419B.343 (2) is created, unless the time period was extended as provided in ORS 419B.350 (2).

(c) A party to a permanency hearing may rebut the presumption by showing by a preponderance of the evidence that further efforts will make it possible for the child to safely return home within a reasonable time.

(d) If the presumption is rebutted, the court shall order an extension for a time certain and specify the services in which the parents are to participate and the progress that is required by the end of the extension.

(3) If, at a permanency hearing conducted under ORS 419B.470 (2), the court finds that the office has not made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the child to safely return home, the court shall so state. The court shall extend the period referred to in ORS 419B.343 (2) by a period of time equal to that between the prior finding that the office had made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the child to safely return home, and the current finding that the office has not made reasonable or active efforts.

(4) At a permanency hearing conducted in cases in which the case plan is something other than to reunify the family, the court shall determine whether the office has made reasonable efforts to place the child in a timely manner in accordance with the plan and to complete the steps necessary to finalize the permanent placement of the child.

(5) The court shall enter an order within 20 days after the permanency hearing. When the child is in substitute care, the order shall include the court’s determination of the permanency plan for the child that includes whether and, if applicable, when:

(a) The child will be returned to the parent;

(b) The child will be placed for adoption, and a petition for termination of parental rights will be filed;

(d) The child will be placed in another planned permanent living arrangement if the State Office for Services to Children and Families has documented a compelling reason that it would not be in the best interests of the child to be:

(A) Returned home;

(B) Placed for adoption, and a petition for termination of parental rights to be filed;

(D) Placed with a legal guardian.

(6) In making the determination under subsection (5)(b) of this section, the court shall determine whether one of the circumstances in ORS 419B.498 (2) is applicable to the case.

(7) The court shall also include the tribal affiliation of the child in the order if the family has indicated there is Indian ancestry.

(8) If the court determines that the child shall be referred for establishment of legal guardianship, placed with a fit and willing relative or placed in another planned permanent living arrangement, the court shall enter written findings specifying why neither placement with parents nor adoption is appropriate. If the current placement is not expected to be permanent, the court shall specify a projected timetable for return home or for placement in another planned permanent living arrangement. If the timetable set forth by the court is not met, the State Office for Services to Children and Families shall promptly notify the court and parties. If an Indian child is involved, the placement preference under the Indian Child Welfare Act shall be followed.

(9) In the course of the permanency hearing, the court may determine the adequacy of and compliance with the case plan and case progress report. In addition to other orders, the court may:

(a) Order the office to develop or expand a case plan, concurrent case plan or case progress report which must be submitted within 10 days after the hearing;

(b) Set a court hearing at a specific later time;

(c) Direct the local citizen review board to review the status of the child prior to its next review under ORS 419A.106, 419A.108, 419A.110, 419A.112, 419A.116 and 419A.118;

(d) Order the office or other agency directly responsible for the child to modify the care, placement and supervision of the child; and

(e) Review efforts made to develop the concurrent case plan including, but not limited to, identification and selection of a suitable adoptive placement for the child.

[(10) Any decision of the court made pursuant to the permanency hearing shall be a final order for the purposes of ORS 419A.200.]

SECTION 10. ORS 419C.626 is amended to read:

419C.626. (1) Upon receiving any report required by ORS 419C.620, the court may hold a hearing to review the youth offender’s condition and circumstances and to determine if the court should continue jurisdiction over the youth offender or order modifications in the care, placement and supervision of the youth offender. The court shall hold a hearing if requested by the youth offender, the attorney for the youth offender, if any, the parents or the public or private agency having guardianship or legal custody of the youth offender within 30 days of receipt of the notice provided in ORS 419C.629.

(2) The hearing provided in subsection (1) of this section shall be conducted in the manner provided in ORS 419C.400 (1), 419C.405 and 419C.408, except that the court may receive testimony and reports as provided in ORS 419C.400 (3). At the conclusion of the hearing, the court shall enter findings of fact if the decision is to continue the youth offender in substitute care. Such findings shall specifically state:

(a) Why continued care is necessary as opposed to returning the youth offender to the youth offender’s home or prompt action to secure another permanent placement; or

(b) The expected timetable for return or other permanent placement.

[(3) Any decision of the court made pursuant to the hearing provided in subsections (1) and (2) of this section shall be a final order for the purposes of ORS 419A.200.]

SECTION 11. ORS 419C.656 is amended to read:

419C.656. (1) The court shall enter an order within 20 days after the review hearing. Where the youth is in substitute care, the order shall include a determination of:

(a) Whether or not the youth should be returned to the parent;

(b) Whether or not the youth should be placed for adoption;

(d) Whether, because of special needs or circumstances, the youth should be placed in the permanent custody or guardianship of a responsible relative or other individual or should continue in substitute care on a permanent or long-term basis.

(2) If the court determines that the youth shall be placed or continued in substitute care or placed in the custody or guardianship of a relative or other responsible individual, the court shall enter written findings specifying why neither placement with parents nor adoption is appropriate. If the current placement is not expected to be permanent, the court shall specify a projected timetable for return home or another permanent placement. If the timetable set forth by the court is not met, the Oregon Youth Authority shall promptly notify the court and parties.

(3) In the course of the dispositional review hearing, the court may determine the adequacy of and compliance with the case plan and case progress report. In addition to other orders, the court may:

(a) Order the youth authority to develop or expand a case plan or case progress report which must be submitted within 10 days after the hearing;

(b) Set a court hearing at a specific later time;

(c) Direct the local citizen review board to review the status of the youth prior to its next review under ORS 419A.106, 419A.108, 419A.110, 419A.112, 419A.116 and 419A.118;

(d) Order the youth authority or other agency directly responsible for the youth to modify the care, placement and supervision of the youth; and

(e) Determine whether the youth authority or other agency directly responsible for the youth has made reasonable efforts to reunify the family.

(4) The dispositional review hearing shall be conducted in the manner provided in ORS 419C.400 (1), 419C.405 and 419C.408, except that the court may receive testimony and reports as provided in ORS 419C.400 (3).

[(5) Any decision of the court made pursuant to the dispositional review hearing shall be a final order for the purposes of ORS 419A.200.]

SECTION 12. ORS 169.770 is amended to read:

169.770. Notwithstanding the procedures set out in ORS 169.080 and 419A.061, the juvenile court in which venue lies pursuant to 419B.100 or 419C.005 shall, upon motion of any party or on its own motion, and after prompt hearing, release any juvenile detained in a facility which violates ORS 169.076 (7) to (11), (13) or (14), 169.740 or 169.750, unless the court finds that such violation is not likely to reoccur. The court may comply with the release provisions of this section by transferring a detained juvenile to an available juvenile detention facility which it finds complies with ORS 169.076 (7) to (11), (13) or (14), 169.740 and 169.750, or by placing the juvenile in shelter care, or by releasing the juvenile to the custody of a responsible adult under terms and conditions specified by the court, or by releasing the juvenile on personal recognizance under terms and conditions specified by the court. [An order under this section is a final order appealable pursuant to ORS 419A.200, but an] The appeal [shall] of a final order under this section does not suspend the jurisdiction of the juvenile court while the appeal is pending. No subsequent order of the juvenile court shall moot the appeal.

SECTION 13. ORS 151.450 is amended to read:

151.450. The State Court Administrator shall:

(1) Pay the compensation for counsel, other than the Public Defender established by ORS 151.280, appointed to represent indigents in the state courts, and other costs and expenses of that representation that are required to be paid by the state under ORS 33.015 to 33.155, 34.355, 135.055, 138.490, 138.500, 138.590, 161.327, 161.365, 161.385, [419A.200,] 419B.195, 419B.201, 419B.205, 419B.518, 419C.200, 419C.206, 426.100, 426.135, 426.275, 426.307, 427.265, 427.295, 436.265 or 436.315, section 6 of this 2001 Act or any other provisions of law that expressly provide for payment of such compensation costs or expenses by the State Court Administrator.

(2) Develop a system for conducting financial and performance audits of indigent defense contracts.

SECTION 14. 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),] 419B.198 (1) and 419C.203 (1) and section 6 of this 2001 Act 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 14a. If House Bill 2388 becomes law, section 2, chapter 342, Oregon Laws 2001 (Enrolled House Bill 2388) (amending ORS 151.465), is repealed.

SECTION 15. 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 20, 2001

Filed in the office of Secretary of State June 20, 2001

Effective date June 20, 2001

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