Chapter 686 Oregon Laws 2001

AN ACT

SB 419

Relating to implementation of federal Adoption and Safe Families Act; creating new provisions; amending ORS 417.375, 418.312, 418.625, 418.635, 419A.106, 419A.116, 419B.090, 419B.150, 419B.185, 419B.340, 419B.343, 419B.443, 419B.470, 419B.476, 419B.498, 419B.502, 419B.504, 419C.080, 419C.133, 419C.145, 419C.156, 419C.306 and 419C.478; repealing ORS 419B.350 and section 1, chapter 360, Oregon Laws 2001 (Enrolled House Bill 2391); and declaring an emergency.

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

SECTION 1. ORS 419B.150 is amended to read:

419B.150. (1) A child may be taken into protective custody by a peace officer, counselor, employee of the State Office for Services to Children and Families or any other person authorized by the juvenile court of the county in which the child is found, in the following circumstances:

(a) Where the child’s condition or surroundings reasonably appear to be such as to jeopardize the child’s welfare;

(b) Where the juvenile court, by order indorsed on the summons as provided in ORS 419B.271 or otherwise, has ordered that the child be taken into protective custody; or

(2)(a) Before issuing an order under subsection (1)(b) of this section, the court shall review an affidavit sworn on information and belief provided by a peace officer, counselor or employee of the State Office for Services to Children and Families or other person authorized by the juvenile court that sets forth with particularity the facts and circumstances on which the request for protective custody is based, why protective custody is in the best interests of the child and the reasonable efforts or, if the Indian Child Welfare Act applies, active efforts made by the office to eliminate the need for protective custody of the child.

(b) Except as provided in paragraph (c) of this subsection, [the court may not issue an order unless the court determines that the office has made] an order directing that a child be taken into protective custody under subsection (1) of this section shall contain written findings, including a brief description of the reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to eliminate the need for protective custody of the child that the office has made and why protective custody is in the best interests of the child.

(c) The court may issue an order even though no services have been provided if the court [finds] makes written findings that no existing services could eliminate the need for protective custody of the child and that protective custody is in the best interests of the child.

(3) When a child is taken into protective custody as a runaway under subsection (1) of this section, the peace officer or other person who takes the child into custody:

(a)(A) Shall release the child without unnecessary delay to the custody of the child’s parent or guardian or to a shelter facility that has agreed to provide care and services to children who have run away from home and that has been designated by the juvenile court to provide such care and services; or

(B) Shall follow the procedures described in ORS 419B.160, 419B.165, 419B.168 and 419B.171;

(b) Shall, if possible, determine the preferences of the child and the child’s parent or guardian as to whether the best interests of the child are better served by placement in a shelter facility that has agreed to provide care and services to children who have run away from home and that has been designated by the juvenile court to provide such care and services or by release to the child’s parent or guardian; and

(c) Notwithstanding ORS 419B.165 and subsection (1) of this section, shall release the child to a shelter facility that has agreed to provide care and services to children who have run away from home and that has been designated by the juvenile court to provide such care and services if it reasonably appears that the child would not willingly remain at home if released to the child’s parent or guardian.

SECTION 2. ORS 419B.150, as amended by section 2, chapter 691, Oregon Laws 1999, is amended to read:

(a) Where the child’s condition or surroundings reasonably appear to be such as to jeopardize the child’s welfare; or

(b) Where the juvenile court, by order indorsed on the summons as provided in ORS 419B.271 or otherwise, has ordered that the child be taken into protective custody.

SECTION 3. ORS 419B.185 is amended to read:

419B.185. (1) When the child is taken, or is about to be taken, into protective custody pursuant to ORS 419B.160, 419B.165, 419B.168 and 419B.171 and placed in detention or shelter care, a parent or child shall be given the opportunity to present evidence to the court at the hearings specified in ORS 419B.183, and at any subsequent review hearing, that the child can be returned home without further danger of suffering physical injury or emotional harm, endangering or harming others, or not remaining within the reach of the court process prior to adjudication. At the hearing:

(a) The court shall make written findings as to 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 prevent or eliminate the need for removal of the child from the home and to make it possible for the child to safely return home. When the court finds that no services were provided but that reasonable services would not have eliminated the need for protective custody, the court shall consider the office to have made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to prevent or eliminate the need for protective custody. The court shall include in the written findings a brief description of what preventive and reunification efforts were made by the office.

(b) In determining whether a child shall be removed or continued out of home, the court shall consider whether the provision of reasonable services can prevent or eliminate the need to separate the family.

(c) In determining whether the office has made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to prevent or eliminate the need for removal of the child from the home [or] and to make it possible for the child to safely return home, the court shall consider the child’s health and safety the paramount concerns.

(d) The court shall make a written finding in every order of removal that describes why it is in the best [interest and for the welfare] interests of the child that the child be removed from the home or continued in care.

(e) The court shall determine whether the child is an Indian child as defined in ORS 419A.004 or in the applicable State-Tribal Indian Child Welfare Agreement.

(2) To aid the court in making the written findings required by subsection (1)(a) and (d) of this section, the office shall present written documentation to the court outlining the reasonable or active efforts made to prevent taking the child into protective custody and to provide services to make it possible for the child to safely return home and why protective custody is in the best interests of the child.

SECTION 4. ORS 418.625 is amended to read:

418.625. As used in ORS 418.625 to 418.645:

[(1) Certificate includes:]

[(a) A “provisional” certificate issued for 90 days; or]

[(b) A “regular” certificate, which is effective for one year.]

(1) “Certificate” means a written approval to operate a foster home issued by the State Office for Services to Children and Families on a form prescribed by the office that states the name of the foster parent, the address of the premises to which the certificate applies and the maximum number of children to be maintained or boarded in the foster home at any one time.

(2) “Foster home” means any home maintained by a person who has under the care of the person in such home any child under the age of 18 years not related to the person by blood or marriage and unattended by its parent or guardian, for the purpose of providing such child with care, food and lodging, but does not include:

(a) Any boarding school that is essentially and primarily engaged in educational work;

(b) Any home in which a child is provided board and room by a school board;

(c) Any foster home under the direct supervision of a private child-caring agency or institution certified by the State Office for Services to Children and Families; or

(d) Any home under the direct supervision of a custodial parent for the purpose of providing respite care as defined by rule.

(3) “Office” means the State Office for Services to Children and Families.

SECTION 5. ORS 418.635 is amended to read:

418.635. Application for a certificate to operate a foster home shall be made to the State Office for Services to Children and Families upon a form to be furnished by the office. Upon receipt of such application, the office shall cause an investigation of the qualifications of the foster home to be made to determine which type of certificate should be issued in accordance with the rules of the office pertinent to the certification of foster homes, and shall issue an appropriate certificate to any person maintaining a foster home which complies with ORS 418.625 to 418.645. Such certificate may be revoked by the office following notice and opportunity for hearing as provided in ORS 183.310 to 183.550 because of violation of any of the provisions of ORS 418.625 to 418.645 or of the rules provided for in ORS 418.640. [Such certificate shall be in the form prescribed by the office and shall state the name of the foster parent, the address of the premises to which the certificate applies and the maximum number of children to be maintained or boarded in such foster home at any one time.] Such certificate shall apply only to the premises designated on the certificate at the time of issue and a change of residence shall automatically terminate the certificate. [A provisional certificate may be renewed for an additional 90-day period.]

SECTION 6. ORS 418.312 is amended to read:

418.312. (1) The State Office for Services to Children and Families [shall] may not require any parent or legal guardian to transfer legal custody of a child in order to have the child placed under ORS 418.205 to 418.310, 418.480 to 418.500 and 418.992 to 418.998 in a foster home, group home or institutional child care setting, when the sole reason for the placement is the need to obtain services for the child’s emotional, behavioral or mental disorder or developmental or physical disability. In all such cases, the child shall be placed pursuant to a voluntary placement agreement. When a child is placed pursuant to a voluntary placement agreement, the State Office for Services to Children and Families shall have responsibility for the child’s placement and care. When a child remains in voluntary placement for more than 180 days, the juvenile court shall make a judicial determination, within the first 180 days of the placement, that the placement is in the best interests of the child. In addition, the juvenile court shall hold a [dispositional hearing] permanency hearing as provided in ORS 419B.476 no later than [18] 14 months after the child’s original voluntary placement, and [every two years] not less frequently than once every 12 months thereafter during the continuation of the child’s original voluntary placement, to determine the future status of the child.

(2) As used in this section, “voluntary placement agreement” means a binding, written agreement between the State Office for Services to Children and Families and the parent or legal guardian of a minor child that does not transfer legal custody to the State Office for Services to Children and Families but that specifies, at a minimum, the legal status of the child and the rights and obligations of the parent or legal guardian, the child and the State Office for Services to Children and Families while the child is in placement.

SECTION 7. ORS 419B.470 is amended to read:

419B.470. (1) The court shall conduct a permanency hearing within 30 days after a judicial finding is made under ORS 419B.340 (5) if, based upon that judicial finding, the State Office for Services to Children and Families determines that it will not make reasonable efforts to reunify the family.

(2) In all other cases when the child is in substitute care, the court shall conduct a permanency hearing no later than 12 months after the child was found within the jurisdiction of the court under ORS 419B.100 or 14 months after the child was placed in substitute care, whichever is the earlier.

[(3) Except as otherwise provided in subsection (4) of this section, after the initial permanency hearing conducted under subsection (1) or (2) of this section, the court shall conduct subsequent permanency hearings not less frequently than every 12 months for as long as the child remains in substitute care.]

[(4)] (3) [The court is not required to conduct subsequent permanency hearings if the child is placed in permanent foster care sanctioned by the court. However, if the] If a child is removed from court sanctioned permanent foster care, the State Office for Services to Children and Families shall request and the court shall conduct a permanency hearing within three months after the date of the change in placement [and not less frequently than every 12 months thereafter for as long as the child remains in substitute care].

[(5)] (4) Unless good cause otherwise is shown, the court shall also conduct a permanency hearing at any time upon the request of the State Office for Services to Children and Families, an agency directly responsible for care or placement of the child, parents whose parental rights have not been terminated, an attorney for the child, a court appointed special advocate, a citizen review board, a tribal court or upon its own motion. The court shall schedule the hearing as soon as possible after receiving a request.

(5) After the initial permanency hearing conducted under subsection (1) or (2) of this section or any permanency hearing conducted under subsection (3) or (4) of this section, the court shall conduct subsequent permanency hearings not less frequently than once every 12 months for as long as the child remains in substitute care.

(6) If a child returns to substitute care after a court’s previously established jurisdiction over the child has been dismissed or terminated, a permanency hearing shall be conducted no later than 12 months after the child is found within the jurisdiction of the court on a newly filed petition or 14 months after the child’s most recent placement in substitute care, whichever is the earlier.

SECTION 8. ORS 419C.080 is amended to read:

419C.080. (1) A peace officer, or any other person authorized by the juvenile court of the county in which the youth is found, may take a youth into custody in the following circumstances:

(a) When, if the youth were an adult, the youth could be arrested without a warrant; or

(b) When the juvenile court, by order indorsed on the summons as provided in ORS 419C.306 or otherwise, has ordered that the youth be taken into custody.

(2) In any order issued under subsection (1)(b) of this section that may result in a substitute care placement or detention, the court shall include a written finding describing why it is in the best interests of the youth to be taken into custody.

[(2)] (3) A peace officer or person authorized by the juvenile court shall take a youth into custody if the peace officer or person authorized by the juvenile court has probable cause to believe that the youth, while in or on a public building or court facility within the last 120 days, possessed a firearm or destructive device in violation of ORS 166.250, 166.370 or 166.382.

SECTION 9. ORS 419C.133 is amended to read:

419C.133. No youth under 12 years of age shall be placed in detention except pursuant to judicial review and written findings describing why it is in the best interests of the youth to be placed in detention. Such review may be ex parte, and the youth does not need to be present. However, a juvenile court judge or referee must determine that the youth is eligible for detention under ORS 419C.145 or 419C.156 and that appropriate alternative methods of controlling the youth’s behavior are unavailable. A youth detained under this section shall have the right to a hearing as provided in ORS 419C.153.

SECTION 10. ORS 419C.145 is amended to read:

419C.145. (1) A youth may be held or placed in detention before adjudication on the merits if one or more of the following circumstances exists:

(a) The youth is a fugitive from another jurisdiction;

(b) The youth is alleged to be within the jurisdiction of the court under ORS 419C.005, by having committed or attempted to commit an offense which, if committed by an adult, would be chargeable as:

(A) A crime involving infliction of physical injury to another person; or

(B) Any felony crime;

(c) The youth has willfully failed to appear at one or more juvenile court proceedings by having disobeyed a proper summons, citation or subpoena;

(d) The youth is currently on probation imposed as a consequence of the youth previously having been found to be within the jurisdiction of the court under ORS 419C.005, and there is probable cause to believe the youth has violated one or more of the conditions of that probation;

(e) The youth is subject to conditions of release pending or following adjudication of a petition alleging that the youth is within the jurisdiction of the court pursuant to ORS 419C.005 and there is probable cause to believe the youth has violated a condition of release; or

(f) The youth is alleged to be in possession of a firearm in violation of ORS 166.250.

(2) A youth detained under subsection (1) of this section must be released to the custody of a parent or other responsible person, released upon the youth’s own recognizance or placed in shelter care unless the court or its authorized representative [finds] makes written findings that there is probable cause to believe that the youth may be detained under subsection (1) of this section, that describe why it is in the best interests of the youth to be placed in detention and that one or more of the following circumstances are present:

(a) No means less restrictive of the youth’s liberty gives reasonable assurance that the youth will attend the adjudicative hearing; or

(b) The youth’s behavior endangers the physical welfare of the youth or another person, or endangers the community.

(3) When a youth is ordered held or placed in detention, the court or its authorized representative shall state in writing the basis for its detention decision and a finding [that] describing why it is [contrary to the welfare of the youth and community for the youth to be released to the custody of the youth’s parent or some other responsible adult] in the best interests of the youth to be placed in detention. The youth shall have the opportunity to rebut evidence received by the court and to present evidence at the hearing.

(4) In determining whether release is appropriate under subsection (2) of this section, the court or its authorized representative shall consider the following:

(a) The nature and extent of the youth’s family relationships and the youth’s relationships with other responsible adults in the community;

(b) The youth’s previous record of referrals to juvenile court and recent demonstrable conduct;

(d) The youth’s education status and school attendance record;

(e) The youth’s past and present employment;

(f) The youth’s previous record regarding appearance in court;

(g) The nature of the charges against the youth and any mitigating or aggravating factors;

(h) The youth’s mental health; and

(i) Any other facts relevant to the likelihood of the youth’s appearance in court or likelihood that the youth will comply with the law and other conditions of release.

SECTION 11. ORS 419C.156 is amended to read:

419C.156. Notwithstanding ORS 419C.145 (1) and (2), the court may order the detention of a youth who resides in another state if the court [finds] makes written findings that there is probable cause to believe that the youth has run away from home or from a placement and that describe why it is in the best interests of the youth to be placed in detention. If a youth is ordered detained under this section, the court shall make such orders as are necessary to cause the youth to be immediately returned to the youth’s state of residence.

SECTION 12. ORS 419C.306 is amended to read:

419C.306. (1) The summons shall require the person or persons who have physical custody of the youth to appear personally and bring the youth before the court at the time and place stated in the summons. The time for the hearing on the petition shall be fixed at a reasonable time, not less than 24 hours, after the issuance of the summons. If it appears to the court that the welfare of the youth or of the public requires that the youth immediately be taken into custody, the court may indorse an order on the summons as provided in ORS 419C.080 (2) directing the officer serving it to take the youth into custody.

(2)(a) Summons shall be issued to the legal parents of the youth, without regard to who has legal or physical custody of the youth, and to the legal guardians, if any, of the youth.

(b) Parents or guardians summoned pursuant to paragraph (a) of this subsection shall appear personally pursuant to the summons. Following the initial appearance, parents or guardians shall appear as directed by the court.

(c) An employer may not discharge, threaten to discharge, intimidate or coerce any employee by reason of the employee’s attendance at a juvenile court hearing as required under paragraph (a) of this subsection.

(d) This subsection shall not be construed to alter or affect an employer’s policies or agreements with employees concerning employees’ wages during times when an employee attends a juvenile court hearing under paragraph (a) of this subsection.

(3) If the youth is 12 years of age or older, a certified copy of the summons shall be served upon the youth.

(4) Summons may be issued requiring the appearance of any person whose presence the court deems necessary. When a summons is issued to a youth pursuant to a petition alleging jurisdiction under ORS 419C.005, a copy of the summons shall be mailed to all victims whose names appear on the petition pursuant to ORS 419C.255 (2). The copy of the summons shall be accompanied by a notice that the victim may be present for the youth’s appearance before the court and is entitled to request and receive notification of future hearings before the court in regard to the particular case. The copy of the summons shall also be accompanied by a notice informing the victim of the provisions of ORS 30.765.

SECTION 13. ORS 419C.478 is amended to read:

419C.478. (1) When a youth has been found to be within the court’s jurisdiction under ORS 419C.005, the court may, in addition to probation or any other dispositional order, place the youth offender in the legal custody of the Oregon Youth Authority for care, placement and supervision or, when authorized under subsection (3) of this section, place the youth offender in the legal custody of the State Office for Services to Children and Families for care, placement and supervision. In any order issued under this section, the court shall include written findings describing why it is in the best interests of the youth offender to be placed with the youth authority or the State Office for Services to Children and Families.

(2) If the court places a youth offender under subsection (1) of this section, the court may specify the type of care, supervision or services to be provided by the youth authority or the State Office for Services to Children and Families to youth offenders placed in the youth authority’s or office’s custody and to the parents or guardians of the youth offenders, but the actual planning and provision of such care, supervision, security or services shall be the responsibility of the youth authority or the State Office for Services to Children and Families. The youth authority or the office may place the youth offender in a youth care center or other facility authorized to accept the youth offender.

(3) The court may place a youth offender in the legal custody of the State Office for Services to Children and Families under subsection (1) of this section if:

(a) The court has determined that a period of out-of-home placement and supervision should be part of the disposition in the case;

(b) The court finds that, because of the youth offender’s mental or emotional condition, the youth offender:

(A) Is not amenable to reform and rehabilitation through participation in the programs provided and administered by the youth authority; and

(B) Is amenable to reform and rehabilitation through participation in the programs provided and administered by the State Office for Services to Children and Families;

(c) The court finds that the State Office for Services to Children and Families can provide adequate security to protect the community and the youth offender;

(d) The court provides for periodic review of the placement; and

(e) The court, in making the findings and determinations required by this subsection, has considered the relevant facts and circumstances of the case, as provided in ORS 419C.411.

(4) Uniform commitment blanks, in a form approved by the director of the youth authority, or by the Assistant Director for Services to Children and Families for placements under subsection (3) of this section, shall be used by all courts for placing youth offenders in the legal custody of the youth authority or the State Office for Services to Children and Families.

(5) If the youth offender has been placed in the custody of the youth authority or the State Office for Services to Children and Families, the court shall make no commitment directly to any residential facility, but shall cause the youth offender to be delivered into the custody of the youth authority or the State Office for Services to Children and Families at the time and place fixed by rules of the youth authority or the office. No youth offender so committed shall be placed in a Department of Corrections institution.

SECTION 14. ORS 419B.340 is amended to read:

419B.340. (1) If the court awards custody to the State Office for Services to Children and Families, the disposition order shall include a determination whether the office has made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to prevent or eliminate the need for removal of the child from the home. If the child has been removed prior to the entry of the order, the order shall also include a determination whether the office has made reasonable or active efforts to make it possible for the child to safely return home. In making the determination under this subsection, the court shall consider the child’s health and safety the paramount concerns.

(2) In support of its determination whether reasonable or active efforts have been made by the office, the court shall enter a brief description of what preventive and reunification efforts were made and why further efforts could or could not have prevented or shortened the separation of the family.

(3) Where the first contact with the family has occurred during an emergency in which the child could not remain without jeopardy at home even with reasonable services being provided, the office shall be considered to have made reasonable or active efforts to prevent or eliminate the need for removal.

(4) Where the court finds that preventive or reunification efforts have not been reasonable or active, but further preventive or reunification efforts could not permit the child to remain without jeopardy at home, the court may authorize or continue the removal of the child.

(5) If a court determines that one of the following circumstances exist, the juvenile court may make a finding that the office is not required to make reasonable efforts to make it possible for the child to safely return home:

(a) Aggravated circumstances including, but not limited to, the following:

(A) The parent by abuse or neglect has caused the death of any child;

(B) The parent has attempted, solicited or conspired, as described in ORS 161.405, 161.435 or 161.450 or under comparable laws of any jurisdiction, to cause the death of any child;

(D) The parent has subjected any child to rape, sodomy or sexual abuse;

(E) The parent has subjected any child to intentional starvation or torture;

(F) The parent has abandoned the child as described in ORS 419B.100 (1)(e); or

(G) The parent has unlawfully caused the death of the other parent of the child;

(b) The parent has been convicted in any jurisdiction of one of the following crimes:

(A) Murder of another child of the parent, which murder would have been an offense under 18 U.S.C. 1111(a);

(B) Manslaughter in any degree of another child of the parent, which manslaughter would have been an offense under 18 U.S.C. [1111(a)] 1112(a);

(C) Aiding, abetting, attempting, conspiring or soliciting to commit an offense described in subparagraph (A) or (B) of this paragraph; or

(D) Felony assault that results in serious physical injury to the child or another child of the parent; or

(6) If, pursuant to a determination under subsection (5) of this section, the juvenile court makes a finding that the office is not required to make reasonable efforts to prevent or eliminate the need for removal of the child from the home or to make it possible for the child to safely return home, and the office determines that it will not make such efforts, the court shall conduct a permanency hearing as provided in ORS 419B.470 no later than 30 days after the judicial finding under subsection (5) of this section.

(7) Where an Indian child is involved, the office must satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proven unsuccessful. No foster care placement may be ordered in a proceeding in the absence of a determination, supported by clear and convincing evidence, including the testimony of expert witnesses, that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical injury to the Indian child.

SECTION 15. ORS 419B.343 is amended to read:

419B.343. (1) To ensure effective planning for children, the State Office for Services to Children and Families shall take into consideration recommendations and information provided by the committing court before placement in any facility. The State Office for Services to Children and Families shall ensure that the case planning in any case:

(a) For the reunification of the family bears a rational relationship to the jurisdictional findings that brought the child within the court’s jurisdiction under ORS 419B.100;

(b) Incorporates the perspective of the child and the family and, whenever possible, allows the family to assist in designing its own service programs, based on an assessment of the family’s needs and the family’s solutions and resources for change; and

(2) Except in cases when the plan is something other than to reunify the family, the State Office for Services to Children and Families shall include in the case plan:

(a) Appropriate services to allow the parent the opportunity to adjust the parent’s circumstances, conduct or conditions to make [return of the child possible] it possible for the child to safely return home within [the] a reasonable time [described in paragraph (b) of this subsection]; and

(b) [An alternate,] A concurrent permanent plan to be implemented if the parent is unable or unwilling to adjust the parent’s circumstances, conduct or conditions in such a way as to [allow the return of] make it possible for the child to safely return home within a reasonable time. [A rebuttable presumption is created that it is in the best interest of the child to implement the alternate, permanent plan if:]

[(A) The State Office for Services to Children and Families has made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to provide services that would make return of the child possible; and]

[(B) Twelve months after the date the child was found to be within the jurisdiction of the court under ORS 419B.100 or 14 months after the child was placed in substitute care, whichever is the earlier, the child could not be returned to the parent.]

SECTION 16. ORS 419B.476 is amended to read:

419B.476. (1) [The] A permanency hearing shall be conducted in the manner provided in ORS 418.312, 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 court shall:

(a) If the case plan at the time of the hearing 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)] (b) [At a permanency] If the case plan at the time of the 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.

(3) At a permanency hearing the court may:

(a) If the case plan changed during the period since the last review by a local citizen review board or court hearing and a plan to reunify the family was in effect for any part of that period, determine whether 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. In making its determination, the court shall consider the child’s health and safety the paramount concerns;

(b) If the case plan changed during the period since the last review by a local citizen review board or court hearing and a plan other than to reunify the family was in effect for any part of that period, 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;

(c) If the court determines that further efforts will make it possible for the child to safely return home within a reasonable time, order that the parents participate in specific services for a specific period of time and make specific progress within that period of time;

(d) Determine the adequacy and compliance with the case plan and the case progress report;

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

(f) Order the office to develop or expand the case plan or concurrent permanent plan and provide a case progress report to the court and other parties within 10 days after the permanency hearing;

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

(h) Order the local citizen review board to review the status of the child prior to the next court hearing; or

(i) Set another court hearing at a later date.

[(5)] (4) The court shall enter an order within 20 days after the permanency hearing. [When the child is in substitute care,] In addition to any determinations or orders the court may make under subsection (3) of this section, the order shall include:

(a) The court’s determination required under subsection (2) of this section, including a brief description of the efforts the office has made with regard to the case plan in effect at the time of the permanency hearing;

(b) The court’s determination of the permanency plan for the child that includes whether and, if applicable, when:

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

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

[(c)] (C) The child will be referred for establishment of legal guardianship; or

[(d)] (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;]

[(C) Placed with a fit and willing relative; or]

[(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.]

(c) If the court determines that the permanency plan for the child should be to return home because further efforts will make it possible for the child to safely return home within a reasonable time, the court’s determination of the services in which the parents are required to participate, the progress the parents are required to make and the period of time within which the specified progress must be made;

(d) If the court determines that the permanency plan for the child should be adoption, the court’s determination of whether one of the circumstances in ORS 419B.498 (2) is applicable;

[(8)] (e) If the court determines that the permanency plan for the child [shall be referred for] should be establishment of a legal guardianship[, placed] or placement with a fit and willing relative [or placed in another planned permanent living arrangement, the court shall enter written findings specifying], the court’s determination of why neither placement with parents nor adoption is appropriate[.];

(f) If the court determines that the permanency plan for the child should be a planned permanent living arrangement, the court’s determination of a compelling reason, which must be documented by the office, why it would not be in the best interests of the child to be returned home, placed for adoption, placed with a legal guardian or placed with a fit and willing relative;

(g) If the current placement is not expected to be permanent, the [court shall specify a] court’s 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] office 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.]; or

(h) If an Indian child is involved, the tribal affiliation of the child.

(5) If an Indian child is involved, the court shall follow the placement preference established by the Indian Child Welfare Act.

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

SECTION 17. ORS 419B.498 is amended to read:

419B.498. (1) Except as provided in subsection (2) of this section, the State Office for Services to Children and Families shall simultaneously file a petition to terminate the parental rights of a child’s parents [or, if such a petition has been filed by another party, seek to be joined as a party to the petition and, concurrently, to] and identify, recruit, process and approve a qualified family for adoption if the child is in the custody of the office and:

(a) The child has been in substitute care under the responsibility of the office for 15 months of the most recent 22 months;

(b) [A court of competent jurisdiction has determined that the parent has committed] A parent has been convicted of murder of another child of the parent, [committed] voluntary manslaughter of another child of the parent, [aided or abetted, attempted, conspired or solicited] aiding, abetting, attempting, conspiring or soliciting to commit murder or voluntary manslaughter of the child or of another child of the parent or [committed] felony assault that has resulted in serious [bodily] physical injury to the child or to another child of the parent; or

(2) The office shall file a petition to terminate the parental rights of a parent [or seek to be joined as a party to such a petition filed by another party] in the circumstances described in subsection (1) of this section unless:

(a) [At the option of the office,] The child is being cared for by a relative and that placement is intended to be permanent;

(b) [The office has documented in the case plan, which shall be available for court review,] There is a compelling reason, which is documented in the case plan, for determining that filing such a petition would not be in the best interests of the child. Such compelling reasons include, but are not limited to:

(A) The parent is successfully [working to complete a plan under ORS 419B.476 (2)(d)] participating in services that will make it possible for the child to safely return home within a reasonable time as provided in ORS 419B.476 (4)(c); [or]

(B) Another permanent plan is better suited to meet the health and safety needs of the child; or

(C) The court or local citizen review board in a prior hearing or review determined that while the case plan was to reunify the family the office did not make reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the child to safely return home; or

(c) The office has not provided to the family of the child, consistent with the time period in the [office] case plan, such services as the office deems necessary for the [safe return of the child to the child’s home] child to safely return home, if reasonable efforts to make it possible for the child to safely return home are required to be made with respect to the child.

SECTION 18. ORS 417.375 is amended to read:

417.375. (1) If the State Office for Services to Children and Families conducts a family decision-making meeting under ORS 417.365 to 417.375, the meeting shall result in the development of a written family plan that may include a primary permanent plan, concurrent permanent plan, placement recommendations and service recommendations. The family plan or service agreement shall also include:

(a) The expectations of the parents of the child and other family members;

(b) Services the office will provide;

(d) The benefits of compliance with the plan;

(e) The consequences of noncompliance with the plan; and

(f) A schedule of subsequent meetings, if appropriate.

(2) Any family member participating in a family decision-making meeting shall sign a written acknowledgment of the content of the family plan developed at the family decision-making meeting and their attendance at the meeting.

(3) The office shall incorporate the family plan developed at the family decision-making meeting into the office’s service plan for the child to the extent that the family plan protects the child, builds on family strengths and is focused on achieving permanency for the child within a reasonable time.

(4) If the family plan is not incorporated in the office’s service plan for the child, the office shall document the reasons in the service plan.

(5) The office shall send a copy of the family plan to the family participants, including those family members who participated in writing pursuant to ORS 417.371 (3), no later than 21 days after the conclusion of the family decision-making meeting.

SECTION 19. ORS 419A.106 is amended to read:

419A.106. (1) Except for cases removed from review under procedures established under ORS 419A.098, the local citizen review board shall review the case of each child in substitute care which is assigned by the court. The following provisions apply:

(a) The review shall take place at times set by the board, the first review to be no more than six months after the child is placed in substitute care and subsequent reviews to take place no less frequently than once every six months thereafter until the child is no longer within the jurisdiction of the court, no longer in substitute care or until an adoption proceeding becomes final.

(b) The court, by rule of the court or on an individual case basis, may relieve the local citizen review board of its responsibility to review a case if a complete judicial review has taken place within 60 days prior to the next scheduled board review. A complete judicial review is a hearing that results in a written order that contains the findings required under ORS 419B.476 or includes substantially the same findings as are required under ORS 419A.116.

(c) The court shall notify the local citizen review board of a denial of a petition to terminate parental rights within 10 days of the denial. As soon as practical but no later than 45 days after the denial, the board shall review any case where a petition to terminate parental rights has been denied.

(2) The local citizen review board may hold joint or separate reviews for groups of siblings.

SECTION 19a. If House Bill 2391 becomes law, ORS 419A.106, as amended by section 19 of this 2001 Act, is amended to read:

(2) The local citizen review board may hold joint or separate reviews for groups of siblings.

(3) At any review conducted under this section or at a court hearing conducted in lieu of that review, the court or local citizen review board shall inquire of those present as to the parent’s current address and telephone numbers and, if the parent has a contact person, the name, current address and telephone number of the contact person. When appropriate, the court may enter a protective order limiting disclosure of information obtained under this subsection.

SECTION 20. ORS 419A.116 is amended to read:

419A.116. (1) After reviewing each case, the local citizen review board shall [prepare] make written findings and recommendations with respect to:

[(1)] (a) Whether reasonable efforts were made prior to the placement, to prevent or eliminate the need for removal of the child from the [home, and to make it possible for the child to be returned] home;

(b) If the case plan at the time of the review is to reunify the family, 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;

(c) If the case plan at the time of the review is something other than to reunify the family, whether the office has made reasonable efforts to place the child in a timely manner in accordance with the case plan and to complete the steps necessary to finalize the permanent placement of the child;

[(2)] (d) The continuing need for and appropriateness of the placement;

[(3)] (e) Compliance with the case plan;

[(4)] (f) The progress which has been made toward alleviating the need for placement;

[(5)] (g) A likely date by which the child may be returned home or placed for adoption;

[(6)] (h) Other problems, solutions or alternatives the board determines should be explored; and

[(7)] (i) Whether the court should appoint an attorney or other person as special advocate to represent or appear on behalf of the child under ORS 419B.195.

(2) The local citizen review board may, if the case plan has changed during the period since the last review by a local citizen review board or court hearing, make written findings and recommendations with respect to:

(a) 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, if a plan to reunify the family was in effect for any part of the period since the last review or hearing; or

(b) Whether the office has made reasonable efforts to place the child in a timely manner in accordance with the case plan and complete the steps necessary to finalize the permanent placement of the child, if a case plan other than to reunify the family was in effect for any part of the period since the last review or hearing.

(3) In determining 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, the local citizen review board shall consider the child’s health and safety the paramount concerns.

(4) No later than 10 days after receiving the findings and recommendations of the local citizen review board, a party adversely affected by the findings and recommendations may request judicial review.

SECTION 21. ORS 419B.090 is amended to read:

419B.090. (1) The juvenile court is a court of record and exercises jurisdiction as a court of general and equitable jurisdiction and not as a court of limited or inferior jurisdiction. The juvenile court is called “The _________ Court of ___________ County, Juvenile Department.”

(2)(a) It is the policy of the State of Oregon to recognize that children are individuals who have legal rights. Among those rights are the right to:

(A) Permanency with a safe family;

(B) Freedom from physical, sexual or emotional abuse or exploitation; and

(b) Parents and guardians have a duty to afford their children the rights listed in paragraph (a) of this subsection. Parents and guardians have a duty to remove any impediment to their ability to perform parental duties that afford these rights to their children. When a parent or guardian fails to fulfill these duties, the juvenile court may determine that it is in the best interests of the child to remove the child from the parent or guardian either temporarily or permanently.

(c) The provisions of this chapter shall be liberally construed to the end that a child coming within the jurisdiction of the court may receive such care, guidance, treatment and control as will lead to the child’s welfare and the protection of the community.

(3) It is the policy of the State of Oregon to guard the liberty interest of parents protected by the Fourteenth Amendment to the United States Constitution and to protect the rights and interests of children, as provided in subsection (2) of this section. The provisions of this chapter shall be construed and applied in compliance with federal constitutional limitations on state action established by the United States Supreme Court with respect to interference with the rights of parents to direct the upbringing of their children, including, but not limited to:

(a) Guide the secular and religious education of their children;

(b) Make health care decisions for their children; and

(4) It is the policy of the State of Oregon, in those cases not described as extreme conduct under ORS 419B.502, to offer appropriate reunification services to parents and guardians to allow them the opportunity to adjust their circumstances, conduct or conditions to make [return of the child possible] it possible for the child to safely return home within a reasonable time. Although there is a strong preference that children live in their own homes with their own families, the state recognizes that it is not always possible or in the best interests of the child or the public for children who have been abused or neglected to be reunited with their parents or guardians. In those cases, the State of Oregon has the obligation to create or provide an alternative, safe and permanent home for the child.

(5) The State of Oregon recognizes the value of the Indian Child Welfare Act, 25 U.S.C. 1901 to 1923, and hereby incorporates the policies of that Act.

SECTION 22. ORS 419B.443 is amended to read:

419B.443. (1) The reports required by ORS 419B.440 (2) and (3) shall be filed by the agency at the end of the initial six-month period and no less frequently than each six months thereafter. The agency shall file reports more frequently if the court so orders. The reports shall include, but not be limited to:

(a) A description of the problems or offenses which necessitated the placement of the child with the agency;

(b) A description of the type and an analysis of the effectiveness of the care, treatment and supervision that the agency has provided for the child, together with a list of all placements made since the child has been in the guardianship or legal custody of an agency and the length of time the child has spent in each placement;

(c) A description of agency efforts to return the child to the parental home or find permanent placement for the child, including, where applicable, efforts to assist the parents in remedying factors which contributed to the removal of the child from the home;

(d) A proposed treatment plan or proposed continuation or modification of an existing treatment plan, including, where applicable, terms of visitation to be allowed and expected of parents and a description of efforts expected of the child and the parents to remedy factors which have prevented the [return of the child to the parental home] child to safely return home within a reasonable time; and

(e) If continued substitute care is recommended, a proposed timetable for the child’s return home or other permanent placement or a justification of why extended substitute care is necessary.

(2) Notwithstanding the requirements of subsection (1) of this section, reports following the initial report need not contain information contained in prior reports.

SECTION 23. ORS 419B.502 is amended to read:

419B.502. The rights of the parent or parents may be terminated as provided in ORS 419B.500 if the court finds that the parent or parents are unfit by reason of a single or recurrent incident of extreme conduct toward the child or another child. In such case, no efforts need to be made by available social agencies to help the parent adjust the conduct in order to make [the return of the child possible] it possible for the child to safely return home within a reasonable amount of time. In determining extreme conduct, the court shall consider the following:

(1) Rape, sodomy or sex abuse of any child by the parent.

(2) Intentional starvation or torture of any child by the parent.

(3) Abuse or neglect by the parent of any child resulting in death or serious physical injury.

(4) Conduct by the parent to aid or abet another person who, by abuse or neglect, caused the death of any child.

(5) Conduct by the parent to attempt, solicit or conspire, as described in ORS 161.405, 161.435 or 161.450 or under comparable laws of any jurisdiction, to cause the death of any child.

(6) Previous involuntary terminations of the parent’s rights to another child if the conditions giving rise to the previous action have not been ameliorated.

SECTION 24. ORS 419B.504 is amended to read:

419B.504. The rights of the parent or parents may be terminated as provided in ORS 419B.500 if the court finds that the parent or parents are unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the home of the parent or parents is improbable within a reasonable time due to conduct or conditions not likely to change. In determining such conduct and conditions, the court shall consider but is not limited to the following:

(1) Emotional illness, mental illness or mental deficiency of the parent of such nature and duration as to render the parent incapable of providing proper care for the child for extended periods of time.

(2) Conduct toward any child of an abusive, cruel or sexual nature.

(3) Addictive or habitual use of intoxicating liquors or controlled substances to the extent that parental ability has been substantially impaired.

(4) Physical neglect of the child.

(5) Lack of effort of the parent to adjust the circumstances of the parent, conduct, or conditions to make [the return of the child possible] it possible for the child to safely return home within a reasonable time or failure of the parent to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected.

(6) Criminal conduct that impairs the parent’s ability to provide adequate care for the child.

SECTION 25. ORS 419B.350 is repealed.

SECTION 25a. If House Bill 2391 becomes law, section 1, chapter 360, Oregon Laws 2001 (Enrolled House Bill 2391) (amending ORS 419B.350), is repealed.

SECTION 26. (1) To protect the health and safety of children who are in the custody of the State Office for Services to Children and Families and who may be placed in a foster home or adoptive home or with a relative caregiver, the office shall adopt rules pursuant to ORS 181.537 and ORS chapter 418 to require that criminal records checks be conducted on:

(a) All persons who seek to be foster parents, adoptive parents or relative caregivers; and

(b) Other individuals over 18 years of age who will be in the household of the foster parent, adoptive parent or relative caregiver.

(2) Rules adopted under subsection (1) of this section shall include:

(a) A list of crimes for which a conviction disqualifies a person from becoming a foster parent, adoptive parent or relative caregiver;

(b) A requirement that persons who have been convicted of crimes listed in the rules are disqualified from becoming a foster parent, adoptive parent or relative caregiver; and

(c) A provision that the office may approve a person who has been convicted of certain crimes listed in the rules if the person demonstrates to the office that:

(A) The person possesses the qualifications to be a foster parent or adoptive parent regardless of having been convicted of a listed crime; or

(B) The disqualification would create emotional harm to the child for whom the person is seeking to become a foster parent, adoptive parent or relative caregiver and placement of the child with the person would be a safe placement that is in the best interests of the child.

(3) In accordance with 42 U.S.C. 671(a)(20)(B), the Legislative Assembly elects to make the provisions related to criminal records checks set forth in 42 U.S.C. 671(a)(20)(A) inapplicable to this state.

SECTION 27. 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 28, 2001

Filed in the office of Secretary of State June 29, 2001

Effective date June 28, 2001

__________