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 1361
House Bill 2388
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee for Oregon Law Commission)
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.
Provides that, if so requested, counsel in proceeding from
which appeal is being taken is responsible for filing and serving
all documents necessary to commence appeal in juvenile court
cases.
A BILL FOR AN ACT
Relating to juveniles; amending ORS 151.465 and 419A.200.
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) 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, 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 the person shows a colorable claim of error in the proceeding
from which the appeal is taken.
(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) - } { + (8) + } 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) - } { + (6) + } 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) - } { + (7)(a) + } Except as provided in
subsection { - (8) - } { + (9) + } 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) - } { + (8) + } 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) - } { + (9) + } If the state pursuant to subsection
{ - (7) - } { + (8) + } 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) - } { + (10) + } 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) - } { + (9) + } 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) - } { + (11)(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) - } { + (12) + } 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) - } { + (13) + } The district attorney or Attorney
General shall represent the state in the appeal.
SECTION 2. 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) - } { + (11) + }, 419B.198 (1) and 419C.203 (1) 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.
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