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
 
                         House Bill 2336
 
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 as
introduced.
 
  Allows delayed appeal from juvenile court order if delay is not
personally attributable to appellant. Eliminates requirement that
appellant may take delayed appeal only when not represented by
counsel in proceeding from which appeal is taken.
  Declares emergency, effective on passage.
 
                        A BILL FOR AN ACT
Relating to juvenile court appeals; amending ORS 419A.200; and
  declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 419A.200 is amended to read:
  419A.200. (1) Except as provided in ORS 419A.190, any person or
entity, including, but not limited to, a party to a juvenile
court proceeding under ORS 419B.115 (1) or 419C.285 (1), whose
rights or duties are adversely affected by a final order of the
juvenile court may appeal therefrom. An appeal from a circuit
court shall be taken to the Court of Appeals, and an appeal from
a county court shall be taken to the circuit court.
  (2) If the proceeding is in the circuit court and no record of
the proceedings was kept, the court, on motion made not later
than 15 days after the entry of the court's order, shall grant a
rehearing and shall direct that a record of the proceedings be
kept. However, the court shall not grant a rehearing in a case
barred by ORS 419A.190 without the consent of the child affected
by such case. If a rehearing is held, the time for taking an
appeal shall run from the date of entry of the court's order
after the rehearing.
  (3)(a) The appeal may be taken by causing a notice of appeal,
in the form prescribed by ORS 19.250, to be served:
  (A) On all parties who have appeared in the proceeding;
  (B) On the clerk of the juvenile court; and
  (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. On appeal from the county court, the
circuit court shall hear the matter de novo and its order shall
be appealable to the Court of Appeals in the same manner as if
the proceeding had been commenced in the circuit court.
  (4)(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 the failure to file a timely
notice of appeal is not personally attributable to the
person + }.
  (b) A person other than the state shall not be entitled to
relief under this subsection for failure to file timely notice of
cross-appeal when the state appeals pursuant to subsection (7) of
this section.
  (c) The request for leave to file a notice of appeal after the
time limits prescribed in subsection (3) of this section shall be
filed no later than 90 days after entry of the order being
appealed and shall be accompanied by the notice of appeal sought
to be filed. A request for leave under this subsection may be
filed by mail and shall be deemed filed on the date of mailing if
the request is mailed as provided in ORS 19.260.
  (d) The court shall not grant relief under this subsection
unless the state has notice and opportunity to respond to the
person's request for relief.
  (5) An appeal to the Court of Appeals shall be conducted in the
same manner as an appeal in an equity suit and shall be advanced
on the court's docket in the same manner as appeals in criminal
cases.
  (6)(a) Except as provided in subsection (8) of this section or
when otherwise ordered by the appellate court, the filing of an
appeal does not suspend the order of the juvenile court nor
discharge the child from the custody of the person, institution
or agency in whose custody the child may have been placed nor
preclude the trial court after notice and hearing from entering
such further orders relating to the child's custody pending final
disposition of the appeal as it finds necessary by reason only of
matters transpiring subsequent to the order appealed from.
Certified copies of any such order shall be filed by the clerk of
the juvenile court forthwith with the Court of Appeals.
  (b) Notwithstanding the filing of an appeal from a
dispositional order entered pursuant to ORS 419B.325 or an order
entered pursuant to ORS 419B.449 or 419B.476, the juvenile court
may proceed with the adjudication of a petition seeking
termination of the parental rights of a parent of the child who
is subject to the order from which the appeal is taken.
  (c) The appeal of any order entered in a termination of
parental rights proceeding under paragraph (b) of this subsection
shall be consolidated, if appropriate, with any pending appeal of
an order entered under ORS 419B.325, 419B.449 or 419B.476. The
consolidated appeal shall be conducted and advanced on the
court's docket in the same manner as termination of parental
rights cases.
  (7) 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) The district attorney or Attorney General shall represent
the state in the appeal.
  SECTION 2.  { + 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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