Chapter 910 Oregon Laws 2001

AN ACT

HB 3920

Relating to juveniles; creating new provisions; amending ORS 419A.004, 419A.200, 419A.255, 419B.449, 419B.476, 419C.626 and 419C.656; and declaring an emergency.

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

SECTION 1. ORS 419A.255 is amended to read:

419A.255. (1) The clerk of the court shall keep a record of each case, including therein the summons and other process, the petition and all other papers in the nature of pleadings, motions, orders of the court and other papers filed with the court, but excluding reports and other material relating to the child's or youth's history and prognosis. The record of the case shall be withheld from public inspection but shall be open to inspection by the child or youth, parent, guardian, court appointed special advocate, surrogate or a person allowed to intervene in a proceeding involving the child or youth under ORS 109.119 (1), and their attorneys. The attorneys are entitled to copies of the record of the case.

(2) Reports and other material relating to the child's or youth's history and prognosis are privileged and, except at the request of the child or youth, shall not be disclosed directly or indirectly to anyone other than the judge of the juvenile court, those acting under the judge's direction, service providers in the case and the attorneys of record for the child or youth or the child's or youth's parent, guardian, court appointed special advocate, surrogate or person allowed to intervene in a proceeding involving the child or youth under ORS 109.119 (1). Reports and other material relating to a youth offender's history and prognosis in cases under ORS 419C.005 may be disclosed to the superintendent of the school district in which the youth offender resides. The service providers in the case, school superintendents and attorneys are entitled to examine and obtain copies of any reports or other material relating to the child's or youth's history and prognosis. Any service provider in the case, school superintendent or attorney who examines or obtains copies of such reports or materials is responsible for preserving their confidentiality. [and] A service provider or school superintendent who obtains copies of such reports or materials shall return the copies to the court upon the conclusion of the service provider's[,] or superintendent's [or attorney's] involvement in the case.

(3) Except as otherwise provided in subsection (7) of this section, no information appearing in the record of the case or in reports or other material relating to the child's or youth's history or prognosis may be disclosed to any person not described in subsection (2) of this section without the consent of the court, except for purposes of evaluating the child's or youth's eligibility for special education as provided in ORS chapter 343, and no such information may be used in evidence in any proceeding to establish criminal or civil liability against the child or youth, whether such proceeding occurs after the child or youth has reached 18 years of age or otherwise, except for the following purposes:

(a) In connection with a presentence investigation after the guilt of the youth has been admitted or established in a criminal court.

(b) In connection with a proceeding in another juvenile court concerning the child or youth or an appeal from the juvenile court.

(4) If the court finds that the child or youth or parent is without financial means to purchase all or a necessary part of the transcript of the evidence or proceedings, the court shall order upon motion the transcript or part thereof to be furnished. The transcript or part thereof furnished under this subsection shall be paid for in the same manner as furnished transcripts are paid for in criminal cases.

(5) Notwithstanding any other provision of law, the following are not confidential and not exempt from disclosure:

(a) The name and date of birth of the [child or] youth;

(b) The basis for the juvenile court's jurisdiction over the [child or] youth;

(d) The act alleged in the petition that if committed by an adult would constitute a crime if jurisdiction is based on ORS 419C.005;

(e) That portion of the juvenile court order providing for the legal disposition of the [child or] youth [where] when jurisdiction is based on ORS [419B.100 (1)(g) or] 419C.005;

(f) The names and addresses of the youth's parents or guardians; and

(g) The register described in ORS 7.020 when jurisdiction is based on ORS 419C.005.

(6) Notwithstanding any other provision of law, when a youth has been taken into custody under ORS 419C.080, the following information shall be disclosed unless, and only for so long as, there is a clear need to delay disclosure in the course of a specific investigation, including the need to protect the complaining party or the victim:

(a) The youth's name and age and whether the youth is employed or in school;

(b) The youth offense for which the youth was taken into custody;

(c) The name and age of the adult complaining party and the adult victim, unless the disclosure of such information is otherwise prohibited or restricted;

(d) The identity of the investigating and arresting agency; and

(e) The time and place that the youth was taken into custody and whether there was resistance, pursuit or a weapon used in taking the youth into custody.

(7)(a) Information contained in reports and other materials relating to a child's or youth's history and prognosis that, in the professional judgment of the juvenile counselor, caseworker, school superintendent, teacher or detention worker to whom the information for the reports or other materials has been provided, indicates a clear and immediate danger to another person or to society shall be disclosed to the appropriate authority and the person or entity who is in danger from the child or youth.

(b) An agency or a person who discloses information under paragraph (a) of this subsection shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed for making the disclosure.

(c) Nothing in this subsection affects the provisions of ORS 146.750, 146.760, 419B.035, 419B.040 and 419B.045. The disclosure of information under this section does not make the information admissible in any court or administrative proceeding if it is not otherwise admissible.

(8) A county juvenile department is the agency responsible for disclosing youth offender records and records relating to nonadjudicated youths if the records are subject to disclosure.

SECTION 2. ORS 419A.004 is amended to read:

419A.004. As used in this chapter and ORS chapters 419B and 419C, unless the context requires otherwise:

(1) “CASA Volunteer Program” means a program approved or sanctioned by the juvenile court to recruit, train and supervise volunteer persons to serve as court appointed special advocates.

(2) “Child” means a person within the jurisdiction of the juvenile court as provided in ORS 419B.100.

(3) “Child care center” means a residential facility for the care and supervision of children that is licensed under the provisions of ORS 418.240.

(4) “Community service” has the meaning given that term in ORS 137.126.

(5) “Conflict of interest” means a person appointed to a local citizen review board who has a personal or pecuniary interest in a case being reviewed by that board.

(6) “Counselor” means a juvenile department counselor.

(7) “Court” means the juvenile court.

(8) “Court appointed special advocate” or “CASA” means a person appointed by the court pursuant to a CASA Volunteer Program to act as special advocate for a child pursuant to ORS 419A.170.

(9) “Court facility” has the meaning given that term in ORS 166.360.

(10) “Detention” or “detention facility” means a facility established under ORS 419A.010 to 419A.020 and 419A.050 to 419A.063 for the detention of dependent children or delinquent youth pursuant to a judicial commitment or order.

(11) “Director” means the director of a juvenile department established under ORS 419A.010 to 419A.020 and 419A.050 to 419A.063.

(12) “Guardian” means guardian of the person and not guardian of the estate.

(13) “Indian child” means any unmarried person less than 18 years of age who is:

(a) A member of an Indian tribe; or

(b) Eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[; or]

[(c) Covered by the terms of an Indian Child Welfare Act agreement between Oregon and an Indian tribe].

(14) “Juvenile court” means the court having jurisdiction of juvenile matters in the several counties of this state.

(15) “Local citizen review board” means the board specified by ORS 419A.090 and 419A.092.

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

(17) “Parent” means the biological or adoptive mother of the child and the legal or adoptive father of the child. A legal father includes:

(a) A nonimpotent, nonsterile man who was cohabiting with his wife, who is the mother of the child, at the time of conception;

(b) A man married to the mother of the child at the time of birth, where there is no decree of separation and the presumption of paternity has not been disputed;

(d) A biological father who has established or declared paternity through filiation proceedings or under ORS 416.400 to 416.470; and

(e) A biological father who has, with the mother, established paternity through a voluntary acknowledgment of paternity under ORS 109.070.

(18) “Permanent foster care” means an out-of-home placement in which there is a long-term contractual foster care agreement between the foster parents and the State Office for Services to Children and Families that is approved by the juvenile court and in which the foster parents commit to raise a foster child until the age of majority.

(19) “Planned permanent living arrangement” means an out-of-home placement other than by adoption, placement with a relative or placement with a legal guardian that is consistent with the case plan and in the best interests of the child.

(20) “Public building” has the meaning given that term in ORS 166.360.

(21) “Reasonable time” means a period of time that is reasonable given a child's emotional and developmental needs and ability to form and maintain lasting attachments.

(22) “Records” means any information in written form, pictures, photographs, charts, graphs, recordings or documents pertaining to a case.

(23) “Resides” or “residence,” when used in reference to the residence of a child or youth, means the place where the child or youth is actually living or the jurisdiction in which wardship of the child or youth has been established.

(24) “Restitution” has the meaning given that term in ORS 137.103.

(25) “Serious physical injury” means:

(a) A serious physical injury as defined in ORS 161.015; or

(b) A physical injury that:

(A) Has a permanent or protracted significant effect on a child's daily activities;

(B) Results in substantial and recurring pain; or

(26) “Shelter care” means a home or other facility suitable for the safekeeping of a child who is taken into temporary custody pending investigation and disposition where the circumstances are such that the child does not need to be kept in secure custody.

(27) “Short-term detention facility” means a facility established under ORS 419A.050 (3) for holding youths pending further placement.

(28) “Substitute care” means an out-of-home placement directly supervised by the office or other agency, including placement in a foster family home, group home or other child caring institution or facility. “Substitute care” does not include care in:

(a) A detention facility, forestry camp or youth correction facility;

(b) A family home which the court has approved as a child's permanent placement, where a private child caring agency has been appointed guardian of the child and where the child's care is entirely privately financed; or

(29) “Surrogate” means a person appointed by the court to protect the right of the child to receive procedural safeguards with respect to the provision of free appropriate public education.

(30) “Tribal court” means a court with jurisdiction over child custody proceedings and that is either a Court of Indian Offenses, a court established and operated under the code of custom of an Indian tribe or any other administrative body of a tribe that is vested with authority over child custody proceedings.

(31) “Youth” means a person under 18 years of age who is alleged to have committed an act that is a violation, or, if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city.

(32) “Youth care center” has the meaning given that term in ORS 420.855.

(33) “Youth offender” means a person who has been found to be within the jurisdiction of the juvenile court under ORS 419C.005 for an act committed by the person when the person was at least 12 years of age and under 18 years of age.

SECTION 3. ORS 419A.200, as amended by sections 3 and 3a, chapter 480, Oregon Laws 2001 (Enrolled House Bill 2336), 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.

(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] chapter 480, Oregon Laws 2001 (Enrolled House Bill 2336).

(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.

(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.

(7)(a) Except as provided in section 5 (2), [of this 2001 Act] chapter 480, Oregon Laws 2001 (Enrolled House Bill 2336), 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.

(8) On appeal of a judgment or final order, the appellate court may review any interlocutory order that:

(a) Involves the merits or necessarily affects the judgment or final order appealed from; and

(b) Was made after entry of the last appealable judgment or final order preceding entry of the judgment or final order being appealed.

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

SECTION 4. ORS 419B.449, as amended by section 8, chapter 480, Oregon Laws 2001 (Enrolled House Bill 2336), 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 final decision of the court made pursuant to the hearing provided in subsection (1) of this section is appealable under ORS 419A.200.

SECTION 5. ORS 419B.476, as amended by section 9, chapter 480, Oregon Laws 2001 (Enrolled House Bill 2336), and section 16, chapter 686, Oregon Laws 2001 (Enrolled Senate Bill 419), is amended to read:

419B.476. (1) 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) At a permanency hearing the court shall:

(a) If the case plan at the time of the hearing is to reunify the family, 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 case plan at the time of the hearing is something other than to reunify the family, 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.

(4) The court shall enter an order within 20 days after the permanency hearing. 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) 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;

(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;

(e) If the court determines that the permanency plan for the child should be establishment of a legal guardianship or placement with a fit and willing relative, 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'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 office shall promptly notify the court and parties; [or] and

(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.

(6) Any final decision of the court made pursuant to the permanency hearing is appealable under ORS 419A.200. On appeal of a final decision of the court under this subsection, the court's finding, if any, under ORS 419B.340 (5) that the State Office for Services to Children and Families is not required to make reasonable efforts to make it possible for the child to safely return home is an interlocutory order to which a party may assign error.

SECTION 6. ORS 419C.626, as amended by section 10, chapter 480, Oregon Laws 2001 (Enrolled House Bill 2336), 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 final decision of the court made pursuant to the hearing provided in subsection (1) of this section is appealable under ORS 419A.200.

SECTION 7. ORS 419C.656, as amended by section 11, chapter 480, Oregon Laws 2001 (Enrolled House Bill 2336), 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 final decision of the court made pursuant to the dispositional review hearing is appealable under ORS 419A.200.

SECTION 8. The amendments to ORS 419A.004 and 419A.255 by sections 1 and 2 of this 2001 Act become operative on January 1, 2002.

SECTION 9. 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 August 3, 2001

Filed in the office of Secretary of State August 3, 2001

Effective date August 3, 2001

__________