71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1181
(To Resolve Conflicts)
B-Engrossed
House Bill 2336
Ordered by the Senate May 23
Including House Amendments dated April 12 and Senate Amendments
dated May 23 to resolve conflicts
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee for Judicial Department)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Creates statutory framework for appeals from juvenile court
proceedings.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to juvenile court appeals; creating new provisions;
amending ORS 151.450, 151.465, 169.770, 419A.200, 419A.262,
419B.449, 419B.476, 419C.626 and 419C.656; repealing sections 1
and 2, chapter ___, Oregon Laws 2001 (Enrolled House Bill
2388); and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2001 Act is added to and made
a part of ORS chapter 419A. + }
SECTION 2. { + (1) For the purpose of being appealed, the
following are judgments:
(a) A judgment finding a child to be within the jurisdiction of
the court;
(b) A judgment disposing of a petition including, but not
limited to, a disposition under ORS 419B.325;
(c) Any final disposition of a petition; and
(d) A final order adversely affecting the rights or duties of a
party and made in a proceeding after judgment including, but not
limited to, a final order under ORS 419B.449 or 419B.476.
(2) An appeal from a judgment finding a child to be within the
jurisdiction of the court does not deprive the juvenile court of
jurisdiction to proceed with a disposition of the matter.
(3) If an appeal is taken from a judgment finding a child to be
within the jurisdiction of the court before the juvenile court
enters a judgment disposing of the matter under ORS 419B.325, any
necessary modification of the appeal must be made according to
the rules of the appellate court.
(4) When an appeal is taken from a judgment finding a child to
be within the jurisdiction of the court, if the appellate court:
(a) Reverses the judgment, the judgment disposing of the matter
is reversed; or
(b) Modifies the judgment, a party may move for relief as
otherwise provided by law. + }
SECTION 3. ORS 419A.200 is amended to read:
419A.200. (1) Except as provided in ORS 419A.190, any person or
entity, including, but not limited to, a party to a juvenile
court proceeding under ORS 419B.115 (1) or 419C.285 (1), whose
rights or duties are adversely affected by a { - final
order - } { + judgment + } of the juvenile court may appeal
therefrom. An appeal from a circuit court shall be taken to the
Court of Appeals, and an appeal from a county court shall be
taken to the circuit court.
(2) If the proceeding is in the circuit court and no record of
the proceedings was kept, the court, on motion made not later
than 15 days after the entry of the court's { - order - } { +
judgment + }, shall grant a rehearing and shall direct that a
record of the proceedings be kept. However, the court shall not
grant a rehearing in a case barred by ORS 419A.190 without the
consent of the child affected by such case. If a rehearing is
held, the time for taking an appeal shall run from the date of
entry of the court's { - order - } { + judgment + } after the
rehearing.
(3)(a) The appeal may be taken by causing a notice of appeal,
in the form prescribed by ORS 19.250, to be served:
(A) On all parties who have appeared in the proceeding;
(B) On the { + trial court administrator or other person
serving as + } clerk of the juvenile court; and
(C) On the juvenile court transcript coordinator, if a
transcript is designated in connection with the appeal.
(b) The original of the notice with proof of service shall be
filed with:
(A) The Court of Appeals if the appeal is from a circuit court;
or
(B) The circuit court if the appeal is from a county court.
(c) The notice shall be filed not later than 30 days after the
entry of the court's { - order - } { + judgment + }. On
appeal from the county court, the circuit court shall hear the
matter de novo and its { - order - } { + judgment + } shall
be appealable to the Court of Appeals in the same manner as if
the proceeding had been commenced in the circuit court.
(4)(a) Upon motion of a person, other than the state, entitled
to appeal under subsection (1) of this section, { - if the
person was not represented by counsel in the proceeding from
which the appeal is being taken, - } the appellate court shall
grant the person leave to file a notice of appeal after the time
limits described in subsection (3) of this section if { + :
(A) + } The person shows a colorable claim of error in the
proceeding from which the appeal is taken { + ; and
(B) The person shows that the failure to file a timely notice
of appeal is not personally attributable to the person + }.
(b) A person other than the state { - shall not be - } { +
is not + } entitled to relief under this subsection for failure
to file timely notice of cross-appeal when the state appeals
pursuant to
{ - subsection (7) of this section - } { + section 5 of this
2001 Act + }.
(c) The request for leave to file a notice of appeal after the
time limits prescribed in subsection (3) of this section
{ - shall - } { + must + } be filed no later than 90 days
after entry of the
{ - order - } { + judgment + } being appealed and
{ - shall - } { + must + } be accompanied by the notice of
appeal sought to be filed. A request for leave under this
subsection may be filed by mail and { - shall be - } { +
is + } deemed filed on the date of mailing if the request is
mailed as provided in ORS 19.260.
(d) The court { - shall - } { + may + } not grant relief
under this subsection unless the state has notice and opportunity
to respond to the person's request for relief.
(5) An appeal to the Court of Appeals shall be conducted in the
same manner as an appeal { - in an equity suit and shall be
advanced - } { + under ORS chapter 19 except that:
(a) The court shall advance the appeal + } on the court's
docket in the same manner as appeals in criminal cases { + ; and
(b) The court's scope of review is de novo on the record + }.
(6)(a) Except as provided in { - subsection (8) of this
section - } { + section 5 (2) of this 2001 Act + } or when
otherwise ordered by the appellate court, the filing of an appeal
does not suspend { - the - } { + an + } order { + or
judgment + } of the juvenile court nor discharge the child from
the custody of the person, institution or agency in whose custody
the child may have been placed nor preclude the { - trial - }
{ + juvenile + } court after notice and hearing from entering
such further orders relating to the child's custody pending final
disposition of the appeal as it finds necessary by reason only of
matters transpiring subsequent to the order { + or judgment + }
appealed from. { + The trial court administrator shall
immediately file + } certified copies of any such order
{ - shall be filed by the clerk of the juvenile court
forthwith - } { + or judgment + } with the Court of Appeals.
(b) Notwithstanding the filing of an appeal from a { +
jurisdictional or + } dispositional { - order entered pursuant
to ORS 419B.325 - } { + judgment + } or an order entered
pursuant to ORS 419B.449 or 419B.476, the juvenile court may
proceed with the adjudication of a petition seeking termination
of the parental rights of a parent of the child who is subject to
the { - order - } { + judgment + } from which the appeal is
taken.
(c) The appeal of any { - order - } { + judgment + }
entered in a termination of parental rights proceeding under
paragraph (b) of this subsection shall be consolidated, if
appropriate, with any pending appeal of an order { + or
judgment + } entered under ORS 419B.325, 419B.449 or 419B.476.
The consolidated appeal shall be conducted and advanced on the
court's docket in the same manner as termination of parental
rights cases.
{ - (7) In addition to the state's right to appeal under
subsection (1) of this section, in a juvenile proceeding, the
state may take an appeal from the order of a judge or referee
from: - }
{ - (a) An order made prior to an adjudicatory hearing
dismissing or setting aside a delinquency petition; - }
{ - (b) An order made after an adjudicatory hearing in which
the juvenile is found to be within the jurisdiction of the court,
setting aside the petition for delinquency; - }
{ - (c) An order made prior to an adjudicatory hearing
suppressing or limiting evidence or refusing to suppress or limit
evidence; or - }
{ - (d) An order made prior to an adjudicatory hearing for
the return or restoration of things seized. - }
{ - (8) If the state pursuant to subsection (7) of this
section appeals a preadjudicatory order, and the child is in
detention in the same proceeding pursuant to ORS 419C.109,
419C.136, 419C.139, 419C.170 and 419C.173, the juvenile court
shall consider release of the child from detention during the
pendency of the appeal in accordance with the following
provisions: - }
{ - (a) When the child is charged with an act which would be
murder if committed by an adult, release shall be denied when the
proof is evident or the presumption strong that the child
committed the act. - }
{ - (b) The child shall be released upon the child's personal
recognizance unless release criteria show to the satisfaction of
the juvenile court that the child would not be likely to appear
before the court as ordered upon later appearance dates and that
such a release is therefore unwarranted. Release criteria shall
include the following: - }
{ - (A) The child's education and employment status and
history and financial condition; - }
{ - (B) The nature and extent of the child's family
relationships; - }
{ - (C) The child's past and present residences; - }
{ - (D) Identification of persons who agree to assist the
child in attending court at the proper time; - }
{ - (E) The nature of the current petition; - }
{ - (F) The child's juvenile record, if any, and, if the
child has previously been released pending trial, whether the
child appeared as required; - }
{ - (G) Any facts indicating the possibility of violations of
law if the child is released without restrictions; - }
{ - (H) Any facts tending to indicate that the child has
strong ties to the community; and - }
{ - (I) Any other facts tending to indicate the likelihood of
the child's appearing before the court as ordered upon later
appearance dates. - }
{ - (c) If the court finds that release of the child on the
child's personal recognizance is unwarranted, it shall order
conditional release. The court may impose upon the released child
one or more of the following conditions, but shall impose the
least onerous condition reasonably likely to assure the child's
later appearance: - }
{ - (A) Release of the child into the care of a parent or
other responsible person or organization for supervising the
child and assisting the child in appearing in court. The
supervisor shall notify the court immediately in the event that
the child breaches the terms of the conditional release. - }
{ - (B) Reasonable restrictions on the activities, movements,
associations and residences of the child. - }
{ - (C) Any other reasonable restriction designed to assure
the child's appearance. - }
{ - (9) If the child, parent or guardian is shown to be
without sufficient financial means to employ suitable counsel
possessing skills and experience commensurate with the nature and
complexity of the case to represent the person in an appeal as
provided in subsections (1) to (8) of this section, the court,
upon request of the person or upon its own motion, shall appoint
suitable counsel to represent the person. Counsel appointed by
the court shall be paid compensation determined by the appellate
court as provided in ORS 135.055 if the circuit court is the
appellate court or as provided in ORS 138.500 if the Court of
Appeals or Supreme Court is the appellate court. - }
{ - (10)(a) Where the court appoints counsel to represent the
child, it may require the parent, if able, or guardian of the
estate, if the estate is able, to pay to the State Court Indigent
Defense Account in the General Fund in full or in part the
administrative costs of determining the ability of the parents or
estate to pay for legal services and the costs of the legal and
other services that are related to the provision of appointed
counsel. - }
{ - (b) The test of the parent's or estate's ability to pay
costs under paragraph (a) of this subsection shall be the same
test as applied to appointment of counsel for defendants under
ORS 135.050. If counsel is provided at state expense, the court
shall apply this test in accordance with the rules of the State
Court Administrator adopted under ORS 151.487. - }
{ - (c) If counsel is provided at state expense, the court
shall determine the amount the parents or estate shall be
required to pay for the costs of administrative, legal and other
services related to the provision of appointed counsel in the
same manner as this amount is determined under ORS 151.487. - }
{ - (d) The court's order of payment shall be enforceable in
the same manner as an order of support under ORS 419B.408 and
419C.600. - }
{ - (11) Where the court appoints counsel and the child,
parent or guardian is without sufficient financial means to
employ counsel, the compensation for counsel and costs and
expenses necessary to the appeal shall be allowed and paid as
provided in ORS 135.055 if the circuit court is the appellate
court or as provided in ORS 138.500 if the Court of Appeals or
Supreme Court is the appellate court. - }
{ - (12) - } { + (7) + } The district attorney or Attorney
General shall represent the state in the appeal.
SECTION 3a. { + If House Bill 2388 becomes law, section 1,
chapter ___, Oregon Laws 2001 (Enrolled House Bill 2388)
(amending ORS 419A.200), is repealed and ORS 419A.200, as amended
by section 3 of this 2001 Act, is amended to read: + }
419A.200. (1) Except as provided in ORS 419A.190, any person or
entity, including, but not limited to, a party to a juvenile
court proceeding under ORS 419B.115 (1) or 419C.285 (1), whose
rights or duties are adversely affected by a judgment of the
juvenile court may appeal therefrom. An appeal from a circuit
court shall be taken to the Court of Appeals, and an appeal from
a county court shall be taken to the circuit court.
(2) If the proceeding is in the circuit court and no record of
the proceedings was kept, the court, on motion made not later
than 15 days after the entry of the court's judgment, shall grant
a rehearing and shall direct that a record of the proceedings be
kept. However, the court shall not grant a rehearing in a case
barred by ORS 419A.190 without the consent of the child affected
by such case. If a rehearing is held, the time for taking an
appeal shall run from the date of entry of the court's judgment
after the rehearing.
(3)(a) The appeal may be taken by causing a notice of appeal,
in the form prescribed by ORS 19.250, to be served:
(A) On all parties who have appeared in the proceeding;
(B) On the trial court administrator or other person serving as
clerk of the juvenile court; and
(C) On the juvenile court transcript coordinator, if a
transcript is designated in connection with the appeal.
(b) The original of the notice with proof of service shall be
filed with:
(A) The Court of Appeals if the appeal is from a circuit court;
or
(B) The circuit court if the appeal is from a county court.
(c) The notice shall be filed not later than 30 days after the
entry of the court's judgment. On appeal from the county court,
the circuit court shall hear the matter de novo and its judgment
shall be appealable to the Court of Appeals in the same manner as
if the proceeding had been commenced in the circuit court.
{ + (4) The counsel in the proceeding from which the appeal
is being taken shall file and serve those documents necessary to
commence an appeal if the counsel is requested to do so by the
party the counsel represents. + }
{ - (4)(a) - } { + (5)(a) + } Upon motion of a person,
other than the state, entitled to appeal under subsection (1) of
this section, the appellate court shall grant the person leave to
file a notice of appeal after the time limits described in
subsection (3) of this section if:
(A) The person shows a colorable claim of error in the
proceeding from which the appeal is taken; and
(B) The person shows that the failure to file a timely notice
of appeal is not personally attributable to the person.
(b) A person other than the state is not entitled to relief
under this subsection for failure to file timely notice of
cross-appeal when the state appeals pursuant to section 5 of this
2001 Act.
(c) The request for leave to file a notice of appeal after the
time limits prescribed in subsection (3) of this section must be
filed no later than 90 days after entry of the judgment being
appealed and must be accompanied by the notice of appeal sought
to be filed. A request for leave under this subsection may be
filed by mail and is deemed filed on the date of mailing if the
request is mailed as provided in ORS 19.260.
(d) The court may not grant relief under this subsection unless
the state has notice and opportunity to respond to the person's
request for relief.
{ - (5) - } { + (6) + } An appeal to the Court of Appeals
shall be conducted in the same manner as an appeal under ORS
chapter 19 except that:
(a) The court shall advance the appeal on the court's docket in
the same manner as appeals in criminal cases; and
(b) The court's scope of review is de novo on the record.
{ - (6)(a) - } { + (7)(a) + } Except as provided in section
5 (2) of this 2001 Act or when otherwise ordered by the appellate
court, the filing of an appeal does not suspend an order or
judgment of the juvenile court nor discharge the child from the
custody of the person, institution or agency in whose custody the
child may have been placed nor preclude the juvenile court after
notice and hearing from entering such further orders relating to
the child's custody pending final disposition of the appeal as it
finds necessary by reason only of matters transpiring subsequent
to the order or judgment appealed from. The trial court
administrator shall immediately file certified copies of any such
order or judgment with the Court of Appeals.
(b) Notwithstanding the filing of an appeal from a
jurisdictional or dispositional judgment or an order entered
pursuant to ORS 419B.449 or 419B.476, the juvenile court may
proceed with the adjudication of a petition seeking termination
of the parental rights of a parent of the child who is subject to
the judgment from which the appeal is taken.
(c) The appeal of any judgment entered in a termination of
parental rights proceeding under paragraph (b) of this subsection
shall be consolidated, if appropriate, with any pending appeal of
an order or judgment entered under ORS 419B.325, 419B.449 or
419B.476. The consolidated appeal shall be conducted and advanced
on the court's docket in the same manner as termination of
parental rights cases.
{ - (7) - } { + (8) + } The district attorney or Attorney
General shall represent the state in the appeal.
SECTION 4. { + Sections 5 and 6 of this 2001 Act are added to
and made a part of ORS chapter 419A. + }
SECTION 5. { + (1) In addition to the state's right to appeal
under ORS 419A.200, the state may appeal from any of the
following orders of a judge or referee:
(a) An order made prior to an adjudicatory hearing dismissing
or setting aside a delinquency petition;
(b) An order that sets aside a petition for delinquency if the
order is made after an adjudicatory hearing in which the juvenile
is found to be within the jurisdiction of the court;
(c) An order made prior to an adjudicatory hearing suppressing
or limiting evidence or refusing to suppress or limit evidence;
or
(d) An order made prior to an adjudicatory hearing for the
return or restoration of things seized.
(2) If the state pursuant to subsection (1) of this section
appeals a preadjudicatory order, and the child is in detention in
the same proceeding pursuant to ORS 419C.109, 419C.136, 419C.139,
419C.170 and 419C.173, the juvenile court shall consider release
of the child from detention during the pendency of the appeal in
accordance with the following provisions:
(a) When the child is charged with an act that would be murder
if committed by an adult, release shall be denied when the proof
is evident or the presumption strong that the child committed the
act.
(b) The child shall be released upon the child's personal
recognizance unless release criteria show to the satisfaction of
the juvenile court that the child would not be likely to appear
before the court as ordered upon later appearance dates and that
such a release is therefore unwarranted. Release criteria shall
include the following:
(A) The child's education and employment status and history and
financial condition;
(B) The nature and extent of the child's family relationships;
(C) The child's past and present residences;
(D) The names of persons who agree to assist the child in
attending court at the proper time;
(E) The nature of the current petition;
(F) The child's juvenile record, if any, and, if the child has
previously been released pending trial, whether the child
appeared as required;
(G) Any facts indicating the possibility of violations of law
if the child is released without restrictions;
(H) Any facts tending to indicate that the child has strong
ties to the community; and
(I) Any other facts tending to indicate the likelihood that the
child will appear before the court as ordered upon later
appearance dates.
(c) If the court finds that release of the child on the child's
personal recognizance is unwarranted, it shall order conditional
release. The court may impose upon the released child one or more
of the following conditions, but shall impose the least onerous
condition reasonably likely to ensure the child's later
appearance:
(A) Release of the child into the care of a parent or other
responsible person or organization for supervising the child and
assisting the child in appearing in court. The supervisor shall
immediately notify the court in the event that the child breaches
the terms of the conditional release.
(B) Reasonable restrictions on the activities, movements,
associations and residences of the child.
(C) Any other reasonable restriction designed to ensure the
child's appearance. + }
SECTION 6. { + (1) If the child, parent or guardian is shown
to be without sufficient financial means to employ suitable
counsel possessing skills and experience commensurate with the
nature and complexity of the case to represent the person in an
appeal as provided in ORS 419A.200 and section 5 of this 2001
Act, the court, upon request of the person or upon its own
motion, shall appoint suitable counsel to represent the person.
Counsel appointed by the court shall be paid compensation
determined by the appellate court as provided in ORS 135.055 if
the circuit court is the appellate court or as provided in ORS
138.500 if the Court of Appeals or the Supreme Court is the
appellate court.
(2)(a) When the court appoints counsel to represent the child,
it may require the parent, if able, or guardian of the estate, if
the estate is able, to pay to the State Court Indigent Defense
Account in the General Fund in full or in part the administrative
costs of determining the ability of the parents or estate to pay
for legal services and the costs of the legal and other services
that are related to the provision of appointed counsel.
(b) The test of the parent's or estate's ability to pay costs
under paragraph (a) of this subsection shall be the same test as
applied to appointment of counsel for defendants under ORS
135.050. If counsel is provided at state expense, the court shall
apply this test in accordance with the rules of the State Court
Administrator adopted under ORS 151.487.
(c) If counsel is provided at state expense, the court shall
determine the amount the parents or estate shall be required to
pay for the costs of administrative, legal and other services
related to the provision of appointed counsel in the same manner
as this amount is determined under ORS 151.487.
(d) The court's order of payment shall be enforceable in the
same manner as an order of support under ORS 419B.408 and
419C.600.
(3) When the court appoints counsel and the child, parent or
guardian is without sufficient financial means to employ counsel,
the compensation for counsel and costs and expenses necessary to
the appeal shall be allowed and paid as provided in ORS 135.055
if the circuit court is the appellate court or as provided in ORS
138.500 if the Court of Appeals or the Supreme Court is the
appellate court. + }
SECTION 7. ORS 419A.262 is amended to read:
419A.262. (1) An expunction proceeding shall be commenced in
the county where the subject person resided at the time of the
most recent termination.
(2) Upon application of either a person who is the subject of a
record or a juvenile department, or upon its own motion, the
juvenile court shall order expunction if, after a hearing when
the matter is contested, it finds that:
(a) At least five years have elapsed since the date of the
person's most recent termination;
(b) Since the date of the most recent termination, the person
has not been convicted of a felony or a Class A misdemeanor;
(c) No proceedings seeking a criminal conviction or an
adjudication in a juvenile court are pending against the person;
(d) The person is not within the jurisdiction of any juvenile
court on the basis of a petition alleging an act or behavior as
defined in ORS 419B.100 (1)(a) to (c) and (f) or 419C.005; and
(e) The juvenile department is not aware of any pending
investigation of the conduct of the person by any law enforcement
agency.
(3) In the case of an application by the juvenile department or
of the court acting upon its own motion, expunction shall not be
ordered if actual notice of expunction has not been given to the
person in accordance with subsection (10) of this section unless
the person has reached 21 years of age.
(4) When a person who is the subject of a record kept by a
juvenile court or juvenile department reaches 18 years of age,
the juvenile court, after a hearing when the matter is contested,
shall order expunction if:
(a) The person never has been found to be within the
jurisdiction of the court; or
(b) The conditions of subsection (2) of this section have been
met.
(5) Expunction shall not be ordered under this section if
actual notice of expunction has not been given to the person in
accordance with subsection (10) of this section unless the person
has reached 21 years of age.
(6) Subsections (4) and (5) of this section shall apply only to
cases which result in termination after September 13, 1975.
(7) Notwithstanding subsections (2) and (4) to (6) of this
section, upon application of a person who is the subject of a
record kept by a juvenile court or juvenile department, upon
application of the juvenile department, or upon its own motion,
the juvenile court, after a hearing when the matter is contested,
may order expunction of all or any part of the person's record if
it finds that to do so would be in the best interests of the
person and the public. In the case of an application by the
juvenile department or of the court acting upon its own motion,
expunction shall not be ordered if actual notice of expunction
has not been given to the person in accordance with subsection
(10) of this section unless the person has reached 21 years of
age.
(8) When an expunction proceeding is commenced by application
of the person whose records are to be expunged, the person shall
set forth as part of the application the names of the juvenile
courts, juvenile departments, institutions and law enforcement
and other agencies which the person has reason to believe possess
an expungible record of the person. The juvenile department shall
provide the names and addresses of the juvenile courts, juvenile
departments, institutions and law enforcement and other agencies
which a reasonable search of department files indicates have
expungible records.
(9) When an expunction proceeding is commenced by application
of the juvenile department or upon the court's own motion, the
application or motion shall set forth the names and addresses of
the juvenile courts, juvenile departments, institutions and law
enforcement and other agencies which a reasonable search of
department files indicates have expungible records and those
provided by the subject person.
(10) Notice of an application for expunction under subsections
(2) to (7) of this section shall be given to:
(a) The district attorney of the county in which the expunction
proceeding is commenced and the district attorney of each county
in which the record sought to be expunged is kept; and
(b) The person who is the subject of the record if the person
has not initiated the expunction proceeding.
(11) Within 30 days of receiving the notice of application for
expunction under subsection (10) of this section, a district
attorney shall give written notice of any objection and the
grounds therefor to the person whose records are to be expunged
and to the juvenile court. If no objection is filed the court may
decide the issue of expunction either without a hearing or after
full hearing pursuant to subsections (12) to (15) of this
section.
(12) When an expunction is pending pursuant to subsections (2)
to (7) of this section, the court may proceed with or without a
hearing, except that:
(a) The court may not enter an { - order of - }
expunction { + judgment + } without a hearing if a timely
objection to expunction has been filed pursuant to subsection
(11) of this section; and
(b) The court may not deny an expunction without a hearing if
the proceeding is based on an application of the subject.
(13) Notice of a hearing on a pending expunction shall be
served on the subject and any district attorney filing a timely
objection pursuant to subsection (11) of this section.
(14) The court shall conduct a hearing on a pending expunction
in accord with the provisions of ORS 419B.195, 419B.198,
419B.201, 419B.205, 419B.208, 419B.310, 419B.317 and 419B.320.
Rules of evidence shall be as in a hearing to establish juvenile
court jurisdiction and as defined in ORS 419B.310 (4) and
419C.400 (2). The burden of proof shall be with the party
contesting expunction.
(15) At the conclusion of a hearing on a pending expunction,
the court shall issue { - an order - } { + judgment + }
granting or denying expunction. { - Such order shall be a final
order of the court for purposes of appeal. - }
(16) The juvenile court or juvenile department shall send a
copy of an expunction { - order - } { + judgment + } to each
agency subject to the { - order - } { + judgment + }. Upon
receipt of a copy of the { - order - } { + judgment + }, an
agency subject thereto shall comply and, within 21 days of the
date of receipt, return the copy to the juvenile court or
juvenile department with an indorsement indicating compliance.
(17) When all agencies subject to an expunction { - order - }
{ + judgment + } have indicated their compliance or in any
event no later than six weeks following the date the
{ - order - } { + judgment + } was delivered as required by
subsection (16) of this section, the juvenile court shall provide
the person who is the subject of the record with a copy of the
expunction { - order - } { + judgment + }, a list of
complying and noncomplying agencies, and a written notice of
rights and effects of expunction. The juvenile court and juvenile
department then shall expunge forthwith all records which they
possess and which are subject to the { - order - } { +
judgment + }, except the original expunction { - order - }
{ + judgment + } and the list of complying and noncomplying
agencies which shall be preserved under seal.
(18) In addition to those agencies identified in ORS 419A.260
(1)(d), the juvenile, circuit, municipal and justice courts, and
the district and city attorneys of this state, are bound by an
expunction { - order - } { + judgment + } of any juvenile
court of appropriate jurisdiction in this state issuing an
{ - order of - } expunction { + judgment + }.
(19) Upon entry of an expunction { - order - } { +
judgment + }, the contact which is the subject of the expunged
record shall not be disclosed by any agency. An agency that is
subject to an expunction { - order - } { + judgment + } shall
respond to any inquiry about the contact by indicating that no
record or reference concerning the contact exists.
(20) A person who is the subject of a record which has been
expunged under this section may assert that the record never
existed and that the contact, which was the subject of the
record, never occurred without incurring a penalty for perjury or
false swearing under the laws of this state.
(21) Juvenile courts, by court rule or by order related to a
particular matter, may direct that records concerning a subject
person be destroyed. No such records shall be destroyed until at
least three years have elapsed after the date of the subject's
most recent termination. In the event the record has been
expunged, the { - order of - } expunction { + judgment + }
and list of complying and noncomplying agencies shall not be
destroyed, but shall be preserved under seal. The destruction
herein defined does not constitute expunction.
(22) An { - order of - } expunction { + judgment + } and
list of complying and noncomplying agencies shall be released
from confidentiality only on order of the court originating the
{ - order of - } expunction { + judgment + }, based on a
finding that review of a particular case furthers compliance with
the expunction provisions of this chapter.
(23) A subject has a right of action against any person who
intentionally violates the confidentiality provisions of this
section. In any such proceeding, punitive damages up to an amount
of $1,000 may be sought in addition to any actual damages. The
prevailing party shall be entitled to costs and reasonable
attorney fees.
(24) Intentional violation of the confidentiality provisions of
this section by a public employee is cause for dismissal.
(25) A person who intentionally releases all or part of an
expunged record commits a Class C misdemeanor.
SECTION 8. ORS 419B.449 is amended to read:
419B.449. (1) Upon receiving any report required by ORS
419B.440 and 419B.443, the court may hold a hearing to review the
child's condition and circumstances and to determine if the court
should continue jurisdiction over the child or order
modifications in the care, placement and supervision of the
child. The court shall hold a hearing:
(a) In all cases under ORS 419B.440 (3) where the parents'
rights have been terminated; or
(b) If requested by the child, the attorney for the child, if
any, the parents or the public or private agency having
guardianship or legal custody of the child within 30 days of
receipt of the notice provided in ORS 419B.452.
(2) The hearing provided in subsection (1) of this section
shall be conducted in the manner provided in ORS 419B.310, except
that the court may receive testimony and reports as provided in
ORS 419B.325. At the conclusion of the hearing, the court shall
enter findings of fact if the decision is to continue the child
in substitute care. Such findings shall specifically state:
(a) Why continued care is necessary as opposed to returning the
child to the child's home or taking prompt action to secure
another permanent placement; or
(b) The expected timetable for return or other permanent
placement.
(3) In making the findings under subsection (2) of this
section, the court shall consider the efforts made to develop the
concurrent case plan, including, but not limited to,
identification and selection of a suitable adoptive placement for
the child when adoption is the concurrent case plan.
(4) In addition to findings of fact required by subsection (2)
of this section, the court may order the State Office for
Services to Children and Families to consider additional
information in developing the case plan or concurrent case plan.
{ - (5) Any decision of the court made pursuant to the
hearing provided in subsection (1) of this section shall be a
final order for the purposes of ORS 419A.200. - }
SECTION 9. ORS 419B.476 is amended to read:
419B.476. (1) The permanency hearing shall be conducted in the
manner provided in ORS 419B.310, 419B.317 and 419B.320, except
that the court may receive testimony and reports as provided in
ORS 419B.325.
(2)(a) At a permanency hearing conducted under ORS 419B.470
(2), if the case plan is to reunify the family, the court shall
determine whether the State Office for Services to Children and
Families has made reasonable efforts or, if the Indian Child
Welfare Act applies, active efforts to make it possible for the
child to safely return home and whether the parent has made
sufficient progress to make it possible for the child to safely
return home. In making its determination, the court shall
consider the child's health and safety the paramount concerns.
(b) If the office has made reasonable efforts or, if the Indian
Child Welfare Act applies, active efforts to make it possible for
the child to safely return home and the parent has not made
sufficient progress to allow the child to safely return home, the
rebuttable presumption in ORS 419B.343 (2) is created, unless the
time period was extended as provided in ORS 419B.350 (2).
(c) A party to a permanency hearing may rebut the presumption
by showing by a preponderance of the evidence that further
efforts will make it possible for the child to safely return home
within a reasonable time.
(d) If the presumption is rebutted, the court shall order an
extension for a time certain and specify the services in which
the parents are to participate and the progress that is required
by the end of the extension.
(3) If, at a permanency hearing conducted under ORS 419B.470
(2), the court finds that the office has not made reasonable
efforts or, if the Indian Child Welfare Act applies, active
efforts to make it possible for the child to safely return home,
the court shall so state. The court shall extend the period
referred to in ORS 419B.343 (2) by a period of time equal to that
between the prior finding that the office had made reasonable
efforts or, if the Indian Child Welfare Act applies, active
efforts to make it possible for the child to safely return home,
and the current finding that the office has not made reasonable
or active efforts.
(4) At a permanency hearing conducted in cases in which the
case plan is something other than to reunify the family, the
court shall determine whether the office has made reasonable
efforts to place the child in a timely manner in accordance with
the plan and to complete the steps necessary to finalize the
permanent placement of the child.
(5) The court shall enter an order within 20 days after the
permanency hearing. When the child is in substitute care, the
order shall include the court's determination of the permanency
plan for the child that includes whether and, if applicable,
when:
(a) The child will be returned to the parent;
(b) The child will be placed for adoption, and a petition for
termination of parental rights will be filed;
(c) The child will be referred for establishment of legal
guardianship; or
(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.
(8) If the court determines that the child shall be referred
for establishment of legal guardianship, placed with a fit and
willing relative or placed in another planned permanent living
arrangement, the court shall enter written findings specifying
why neither placement with parents nor adoption is appropriate.
If the current placement is not expected to be permanent, the
court shall specify a projected timetable for return home or for
placement in another planned permanent living arrangement. If the
timetable set forth by the court is not met, the State Office for
Services to Children and Families shall promptly notify the court
and parties. If an Indian child is involved, the placement
preference under the Indian Child Welfare Act shall be followed.
(9) In the course of the permanency hearing, the court may
determine the adequacy of and compliance with the case plan and
case progress report. In addition to other orders, the court may:
(a) Order the office to develop or expand a case plan,
concurrent case plan or case progress report which must be
submitted within 10 days after the hearing;
(b) Set a court hearing at a specific later time;
(c) Direct the local citizen review board to review the status
of the child prior to its next review under ORS 419A.106,
419A.108, 419A.110, 419A.112, 419A.116 and 419A.118;
(d) Order the office or other agency directly responsible for
the child to modify the care, placement and supervision of the
child; and
(e) Review efforts made to develop the concurrent case plan
including, but not limited to, identification and selection of a
suitable adoptive placement for the child.
{ - (10) Any decision of the court made pursuant to the
permanency hearing shall be a final order for the purposes of ORS
419A.200. - }
SECTION 10. ORS 419C.626 is amended to read:
419C.626. (1) Upon receiving any report required by ORS
419C.620, the court may hold a hearing to review the youth
offender's condition and circumstances and to determine if the
court should continue jurisdiction over the youth offender or
order modifications in the care, placement and supervision of the
youth offender. The court shall hold a hearing if requested by
the youth offender, the attorney for the youth offender, if any,
the parents or the public or private agency having guardianship
or legal custody of the youth offender within 30 days of receipt
of the notice provided in ORS 419C.629.
(2) The hearing provided in subsection (1) of this section
shall be conducted in the manner provided in ORS 419C.400 (1),
419C.405 and 419C.408, except that the court may receive
testimony and reports as provided in ORS 419C.400 (3). At the
conclusion of the hearing, the court shall enter findings of fact
if the decision is to continue the youth offender in substitute
care. Such findings shall specifically state:
(a) Why continued care is necessary as opposed to returning the
youth offender to the youth offender's home or prompt action to
secure another permanent placement; or
(b) The expected timetable for return or other permanent
placement.
{ - (3) Any decision of the court made pursuant to the
hearing provided in subsections (1) and (2) of this section shall
be a final order for the purposes of ORS 419A.200. - }
SECTION 11. ORS 419C.656 is amended to read:
419C.656. (1) The court shall enter an order within 20 days
after the review hearing. Where the youth is in substitute care,
the order shall include a determination of:
(a) Whether or not the youth should be returned to the parent;
(b) Whether or not the youth should be placed for adoption;
(c) Whether the youth should continue in substitute care for a
specified period; or
(d) Whether, because of special needs or circumstances, the
youth should be placed in the permanent custody or guardianship
of a responsible relative or other individual or should continue
in substitute care on a permanent or long-term basis.
(2) If the court determines that the youth shall be placed or
continued in substitute care or placed in the custody or
guardianship of a relative or other responsible individual, the
court shall enter written findings specifying why neither
placement with parents nor adoption is appropriate. If the
current placement is not expected to be permanent, the court
shall specify a projected timetable for return home or another
permanent placement. If the timetable set forth by the court is
not met, the Oregon Youth Authority shall promptly notify the
court and parties.
(3) In the course of the dispositional review hearing, the
court may determine the adequacy of and compliance with the case
plan and case progress report. In addition to other orders, the
court may:
(a) Order the youth authority to develop or expand a case plan
or case progress report which must be submitted within 10 days
after the hearing;
(b) Set a court hearing at a specific later time;
(c) Direct the local citizen review board to review the status
of the youth prior to its next review under ORS 419A.106,
419A.108, 419A.110, 419A.112, 419A.116 and 419A.118;
(d) Order the youth authority or other agency directly
responsible for the youth to modify the care, placement and
supervision of the youth; and
(e) Determine whether the youth authority or other agency
directly responsible for the youth has made reasonable efforts to
reunify the family.
(4) The dispositional review hearing shall be conducted in the
manner provided in ORS 419C.400 (1), 419C.405 and 419C.408,
except that the court may receive testimony and reports as
provided in ORS 419C.400 (3).
{ - (5) Any decision of the court made pursuant to the
dispositional review hearing shall be a final order for the
purposes of ORS 419A.200. - }
SECTION 12. ORS 169.770 is amended to read:
169.770. Notwithstanding the procedures set out in ORS 169.080
and 419A.061, the juvenile court in which venue lies pursuant to
419B.100 or 419C.005 shall, upon motion of any party or on its
own motion, and after prompt hearing, release any juvenile
detained in a facility which violates ORS 169.076 (7) to (11),
(13) or (14), 169.740 or 169.750, unless the court finds that
such violation is not likely to reoccur. The court may comply
with the release provisions of this section by transferring a
detained juvenile to an available juvenile detention facility
which it finds complies with ORS 169.076 (7) to (11), (13) or
(14), 169.740 and 169.750, or by placing the juvenile in shelter
care, or by releasing the juvenile to the custody of a
responsible adult under terms and conditions specified by the
court, or by releasing the juvenile on personal recognizance
under terms and conditions specified by the court. { - An order
under this section is a final order appealable pursuant to ORS
419A.200, but an - } { + The + } appeal { - shall - } { +
of a final order under this section does + } not suspend the
jurisdiction of the juvenile court while the appeal is pending.
No subsequent order of the juvenile court shall moot the appeal.
SECTION 13. ORS 151.450 is amended to read:
151.450. The State Court Administrator shall:
(1) Pay the compensation for counsel, other than the Public
Defender established by ORS 151.280, appointed to represent
indigents in the state courts, and other costs and expenses of
that representation that are required to be paid by the state
under ORS 33.015 to 33.155, 34.355, 135.055, 138.490, 138.500,
138.590, 161.327, 161.365, 161.385, { - 419A.200, - }
419B.195, 419B.201, 419B.205, 419B.518, 419C.200, 419C.206,
426.100, 426.135, 426.275, 426.307, 427.265, 427.295, 436.265 or
436.315 { + , section 6 of this 2001 Act + } or any other
provisions of law that expressly provide for payment of such
compensation costs or expenses by the State Court Administrator.
(2) Develop a system for conducting financial and performance
audits of indigent defense contracts.
SECTION 14. ORS 151.465 is amended to read:
151.465. (1) There is created a State Court Indigent Defense
Account in the General Fund which is continuously appropriated to
the State Court Administrator to pay compensation of counsel and
other expenses in connection with the legal representation of
indigent persons, for which the State Court Administrator is
responsible by law. Such expenses shall be paid only from funds
specifically appropriated therefor, and no other moneys
appropriated to the Judicial Department or State Court
Administrator shall be used for these purposes.
(2) All moneys appropriated to the Judicial Department or State
Court Administrator to pay compensation of counsel and other
expenses in connection with the legal representation of indigent
persons for which the State Court Administrator is responsible by
law shall be deposited in the State Court Indigent Defense
Account.
(3) All money received by the Judicial Department under ORS
151.505 (3) or ORS 135.050 (7), 151.487 (1), { - 419A.200
(10), - } 419B.198 (1) and 419C.203 (1) { + and section 6 of
this 2001 Act + } shall be deposited in a separate subaccount
created in the State Court Indigent Defense Account to be used by
the State Court Administrator to reimburse the actual costs and
expenses, including personnel expenses, incurred in
administration and support of the indigent defense program under
ORS 151.430 to 151.495.
SECTION 14a. { + If House Bill 2388 becomes law, section 2,
chapter ___, Oregon Laws 2001 (Enrolled House Bill 2388)
(amending ORS 151.465), is repealed. + }
SECTION 15. { + This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2001 Act takes effect on
its passage. + }
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