71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
HA to HB 2611
LC 1665/HB 2611-2
HOUSE AMENDMENTS TO
HOUSE BILL 2611
By COMMITTEE ON JUDICIARY
April 12
On page 1 of the printed bill, line 4, after '419B.310, '
insert '419B.315,'.
Delete lines 8 through 31 and delete pages 2 through 31 and
insert:
' { + SECTION 1. + } { + Sections 2 to 35 of this 2001 Act
are added to and made a part of ORS chapter 419B. + }
' { + SECTION 2. + } { + (1) Sections 2 to 35 of this 2001
Act govern procedure and practice in all juvenile court
proceedings under ORS chapter 419B. The Oregon Rules of Civil
Procedure do not apply in these proceedings.
' (2) Sections 2 to 35 of this 2001 Act apply to all
proceedings under ORS chapter 419B pending on or filed on or
after the effective date of this 2001 Act, except when, in the
opinion of the court, application in a case pending on the
effective date of this 2001 Act would not be feasible or would
work an injustice.
' (3) Sections 2 to 35 of this 2001 Act do not preclude a court
in which they apply from regulating pleading, practice and
procedure in any manner not inconsistent with sections 2 to 35 of
this 2001 Act. + }
' { + SECTION 3. + } { + (1) A juvenile court having subject
matter jurisdiction has jurisdiction over:
' (a) A party, who has been served in the matter as provided in
sections 5 to 13 of this 2001 Act to the extent that prosecution
of the action is not inconsistent with the Constitution of this
state and the Constitution of the United States;
' (b) A child under 12 years of age who is the subject of a
petition filed pursuant to ORS 419B.100; and
' (c) Any other party specified in ORS 419B.115 (1).
' (2) Juvenile court jurisdiction is subject to ORS 109.701 to
109.834. + }
' { + SECTION 4. + } { + (1) Any person may file a petition
in the juvenile court alleging that a child named therein is
within the jurisdiction of the court under ORS 419B.100.
' (2) The petition and all subsequent court documents in the
proceeding must be entitled 'In the matter of ___, a child. '
The petition must be in writing, signed by the petitioner or the
petitioner's attorney and verified.
' (3) When the petition is filed by a peace officer, district
attorney, attorney general, juvenile department counselor,
employee of the State Office for Services to Children and
Families or employee of the Oregon Youth Authority, the petition
may be verified upon the information and belief of the
petitioner. In all other cases, the petition must be based on the
personal knowledge of the petitioner.
' (4) The petition alleging jurisdiction must set forth in
ordinary and concise language such of the following facts as are
known and indicate any that are not known. The petition shall:
' (a) Contain the name, age and residence of the child.
' (b) Contain the facts that bring the child within the
jurisdiction of the court, including sufficient information to
put the parties on notice of the issues in the proceeding.
' (c) Contain the name and residence of the child's parent and,
in cases under ORS 419B.100, the names of persons with whom, and
the places where, the child has resided for the previous five
years.
' (d) Indicate whether there is a proceeding involving the
custody of the child pending in any court.
' (e) Indicate whether a person other than a parent has or
claims to have physical custody of the child and, if so, the name
and residence of the person having physical custody of the child.
' (f) Indicate whether the petitioner has participated in any
capacity in any other proceeding concerning the custody of or
parenting time or visitation with the child and, if so, the
court, case number and date of any child custody determination.
' (g) Indicate whether the petitioner knows of any proceeding
that could affect the current proceeding and, if so, the court,
case number and date of the proceeding.
' (5) At any time after a petition is filed, the court may make
an order providing for temporary custody of the child.
' (6) The court, on motion of an interested party or on its own
motion, may at any time direct that the petition be amended. If
the amendment results in a substantial departure from the facts
originally alleged, the court shall grant such continuance as the
interests of justice may require.
' (7) Prior to an adjudicatory hearing on the petition, the
court may dismiss the petition provided that every party has had
an opportunity to investigate and present a case supporting the
petition or has waived the opportunity to investigate and the
right to present a case. At or after an adjudicatory hearing, the
court may dismiss the petition at any other stage of the
proceedings.
' (8) The petition for jurisdiction must be in substantially
the following form. + }
] _______________________________________________________________
{ +
IN THE CIRCUIT COURT OF THE STATE OF OREGON + }
{ +
FOR ________ COUNTY + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
In the Matter of )
) No.
) Petition No.
)
A Child. ) PETITION + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
TO THE ABOVE-ENTITLED COURT: + }
{ + Petitioner, whose name appears below, respectfully
represents to the Court as follows: + }
{ +The.name, age and residence of the above-named child are as
follows: (name); (age); (DOB); (resides at), __________,
Oregon. (Alternative: The name and age of the above-named
child are as follows: _____. The child's residence is
provided in a sealed document because providing that
information would jeopardize the health, safety or liberty of
the child or of a party to the case. ORS 109.767.) + }
{ +The.child is within the jurisdiction of the Court by reason
of the following facts: + }
{ +_A.______
_ __
B. __________
+ }
{ +Uniform Child Custody Jurisdiction and Enforcement Act
information: + }
{ Child(ren)'s present address: __________ (Alternative: The
child's present address is provided in a sealed document
because providing that information would jeopardize the
health, safety or liberty of the child or of a party to
the case. ORS 109.767.)
B. Places the child(ren) has lived during the previous five
years:
__________
__________
+ }
{ Names and present addresses of persons with whom
child(ren) has lived during that period:
__________
__________
+ }
{ The.petitioner has/has not participated as a party or
witness or in any other capacity in any other proceeding
concerning the custody of or parenting time or visitation
with the child. Court, case number and date of any child
custody determination:
__________
+ }
{ Petitioner knows/does not know of any proceeding that
could affect the current proceeding. Court, case number
and date of the proceeding:
__________
+ }
{ Petitioner knows/does not know of any person who has
physical custody of the child(ren) or claims rights of
legal custody, physical custody, parenting time or
visitation with the child(ren). Names and addresses of
such persons:
__________
+ }
{ +The.child resides in __________ County.
+ }
{ +The.name and present address of each parent is as follows:
__________
+ }
{ +The.petition is not filed pursuant to the direction of this
Court.
+ }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + WHEREFORE, petitioner prays this Court to have an
investigation made of the circumstances concerning the
above-named child and to make such order or orders as are
appropriate in the circumstances. + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
DATED: ________
, 2__
.
+ }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
____________
{ + Petitioner + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
STATE OF OREGON)
)ss.
County of _____
) + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + I, ________, being first duly sworn, on oath or upon
affirmation, depose and say that I am the petitioner in the
above-entitled proceeding, that I have read the foregoing
petition, know the contents thereof, and the same is true as I am
informed and believe. + }
____________
{ + Petitioner
SIGNED AND SWORN to before me on ________, 2__.
+ }
______________
{ +
SEAL (Alternate Verification) + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
STATE OF OREGON)
)ss.
County of _____
) + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + I, ________, being first duly sworn, on oath or upon
affirmation, depose and say that I am the petitioner in the
above-entitled proceeding, that I have read the foregoing
petition, know the contents thereof, and the same is true based
on my personal knowledge of this matter. + }
____________
{ + Petitioner
SIGNED AND SWORN to before me on ________, 2__.
+ }
______________
{ +
SEAL + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
] _______________________________________________________________
' { + SECTION 5. + } { + (1) As used in sections 6 and 9 of
this 2001 Act, a 'true copy' of a summons or petition means an
exact and complete copy of the original summons or petition with
a certificate upon the copy signed by an attorney of record or a
party that indicates that the copy is exact and complete.
' (2) As soon as practicable and no more than 30 days after a
petition is filed under section 4 of this 2001 Act, the
petitioner, the petitioner's attorney, the juvenile department,
the district attorney, the attorney general or the State Office
for Services to Children and Families may issue as many original
summonses as they may elect and deliver such summonses to a
person authorized to serve summons under subsection (3) of this
section. A summons may require appearance on a specific date or
may require the filing of an admission or denial by a specific
date.
' (3) A summons may be served by any competent person 18 years
of age or older who is a resident of the state where service is
made or of this state.
' (4) A summons and petition may be transmitted by telegraph or
facsimile as provided in section 14 (3) of this 2001 Act. + }
' { + SECTION 6. + } { + (1) A summons under section 5 of
this 2001 Act shall be entitled 'In the matter of ___, a child'
and must contain:
' (a) The name of the person to be served, the address at which
the summons and petition may be served and the post office
address at which the papers may be served by mail.
' (b) The date and time for the hearing on the petition, which
must be fixed at a reasonable time, not less than 24 hours for a
jurisdictional adjudication and not less than 10 days for a
termination adjudication after the service or final publication
of the summons. If the summons is posted, the purpose of the
proceeding must be stated in the summons.
' (c) A direction to the served person to personally appear
before the court and, if the person has physical custody of the
child, to bring the child before the court as directed in the
summons.
' (d) A notice that if the person named in the summons fails to
appear at the time and place specified therein the court may
proceed without the person and:
' (A) If the petition seeks to establish jurisdiction over the
child, that the court may take jurisdiction, and make such
further orders and take such action as may be authorized by law.
' (B) If the petition seeks termination of parental rights, a
statement that the rights of the parent are proposed to be
terminated in the proceeding, that the court may immediately
terminate parental rights and make such further orders and take
any other action that is authorized by law. The summons must
contain a statement that the termination of parental rights
hearing may not be held less than 10 days after service of the
summons.
' (C) If the petition seeks guardianship or any other
disposition of the child, that the court may grant such
disposition and make such further orders and take such action as
may be authorized by law.
' (e) A notice that the served person has a right to be
represented by an attorney and, if the person is an indigent
child in any proceeding or if the person is an indigent parent in
a termination of parental rights proceeding, that the person has
a right to have an attorney appointed at state expense or, if the
person is an indigent parent or indigent guardian in any
proceeding, the person may be entitled to have an attorney
appointed at state expense.
' (f) A notice that no later than 30 days after the petition is
filed each person about whom allegations have been made shall
admit or deny the allegations. The admission or denial may be
made orally at the hearing or filed with the court in writing.
' (g) If the petition alleges that the child has been
physically or sexually abused, a notice that the court, at the
hearing, may enter an order requiring the alleged perpetrator of
the abuse to move from the household in which the child resides.
' (h) A notice that the parent or other person legally
obligated to support the child may be required to pay at some
future date for all or a portion of the support of the child,
including the cost of out-of-home placement, depending upon the
ability of the parent or other person to pay support.
' (2) The summons must be signed by the petitioner,
petitioner's attorney or a representative of the juvenile
department, the district attorney's office, the attorney
general's office or the State Office for Services to Children and
Families and must be served with a true copy of the petition. + }
' { + SECTION 7. + } { + The summons for appearance must be
in substantially the following form: + }
] _______________________________________________________________
{ +
IN THE CIRCUIT COURT OF THE STATE OF OREGON + }
{ +
FOR ________ COUNTY + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
In the Matter of )
) No.
) Petition No.
)
A Child. ) SUMMONS + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + TO: Name and address + }
{ + IN THE NAME OF THE STATE OF OREGON:
You are directed to appear before this Court at __________
(address), Courtroom #___, __________, Oregon, on: the ___ day of
___, 2__ at __ o'clock _.m. and at any subsequent court-ordered
hearing. + }
{ +
NOTICE: + }
{ +
READ THESE PAPERS CAREFULLY! + }
{ + A petition has been filed, a copy of which is attached. + }
{ + If you do not appear in Court, the Court may proceed
without you. No later than 30 days from the date the petition is
filed, each person about whom allegations have been made in the
petition must admit or deny the allegations. + }
{ + If the petition seeks to establish jurisdiction over the
above-named child(ren), and you do not appear as directed above,
or at any subsequent court-ordered hearing, the Court may
immediately take jurisdiction of the child(ren), and make such
orders and take such action as authorized by law including, but
not limited to, establishing wardship over the child, entering an
order restraining a person from having contact with the
child(ren) and ordering the removal of the child(ren) from the
legal and physical custody of the parent(s) or guardian(s). + }
{ + If the petition seeks termination of your parental rights
and you do not appear as directed above, the Court may
immediately terminate your parental rights to the above-named
child(ren) at the time of the above hearing and may make such
further orders and take any other action that is authorized by
law. + }
{ +
RIGHTS AND OBLIGATIONS + }
{ + You have a right to be represented by an attorney. If you
wish to be represented by an attorney, please retain one and have
the attorney present at this hearing. If you cannot afford to
hire an attorney and you meet the state's financial guidelines,
you will be entitled to have an attorney appointed for you at
state expense if you are the child or if you are the parent in a
termination of parental rights case. If you are a parent or
guardian in a nontermination case, you may also be entitled to
have an attorney appointed for you at state expense in many
cases. You must immediately contact the juvenile court to request
an attorney. Phone ___ between the hours of 8 a.m. and 5 p.m.
for further information. It is your responsibility to maintain
contact with your attorney. + }
{ + If you are a parent or legal guardian, you have the
obligation to support your child(ren) or ward(s). You may be
required to pay for compensation and reasonable expenses for the
child(ren)'s attorney. You may be required to pay support for the
child(ren) while the child(ren) is in state financed or state
supported custody. You may be required to provide health
insurance coverage for your child(ren) while the child(ren) is in
state financed or state supported custody. You may be required to
pay other costs that arise from the child(ren) being in the
jurisdiction of the Court. If you are ordered to pay for the
child(ren)'s support or there is an existing order of support
from a divorce or other proceeding, that support order may be
assigned to the State Office for Services to Children and
Families to apply to the costs of the child(ren)'s care. + }
{ + By: (Name and Title)
Date Issued: ________
+ }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
] _______________________________________________________________
' { + SECTION 8. + } { + The summons must be served, either
inside or outside of the state, in a manner reasonably calculated
under all the circumstances to apprise the person served of the
existence and pendency of the juvenile proceeding and to afford
the person a reasonable opportunity to appear. Service of summons
may be made, subject to the restrictions and requirements of
section 9 of this 2001 Act, by the following methods:
' (1) Personal service of the summons and petition upon the
person to be served;
' (2) Substituted service by leaving a copy of the summons and
petition at a person's dwelling house or usual place of abode;
' (3) Office service by leaving the summons and petition with a
person who is apparently in charge of an office; or
' (4) Alternative service as ordered by the court under section
9 (4) of this 2001 Act. + }
' { + SECTION 9. + } { + (1) Personal service may be made by
delivery of a true copy of the summons and a true copy of the
petition to the person to be served.
' (2) Substituted service may be made by delivering a true copy
of the summons and a true copy of the petition at the dwelling
house or usual place of abode of the person to be served to any
person 14 years of age or older residing in the dwelling house or
usual place of abode. When substituted service is used, the
person effecting service shall cause to be mailed a true copy of
the summons and a true copy of the petition and a statement of
the date, time, and place at which substituted service was made.
The summons, petition and statement must be mailed by first class
mail to the dwelling house or usual place of abode of the person
who has been served as soon as is practicable after the
substituted service was made. When the computation of a period of
time is based on service of summons, substituted service is
complete upon such mailing.
' (3) If the person to be served maintains an office for
conducting business, office service may be made by leaving a true
copy of the summons and a true copy of the petition at the office
during normal working hours with the person who is apparently in
charge. When office service is used, the person effecting service
shall cause to be mailed a true copy of the summons and a true
copy of the petition and a statement of the date, time, and place
at which office service was made. The summons, petition and
statement must be mailed by first class mail to the person who
has been served at the person's dwelling house or usual place of
abode, place of business or such other place under the
circumstances that is most reasonably calculated to apprise the
person of the existence and pendency of the juvenile proceeding.
The summons, petition and statement must be mailed as soon as is
practicable after the office service was made. When the
computation of a period of time is based on service of summons,
office service is complete upon such mailing.
' (4)(a) If any parent or guardian required to be summoned as
provided in sections 5 to 13 of this 2001 Act cannot be found
within the state, the court may order alternative service of
summons on the parent or guardian in any of the following methods
or combination of methods that under the circumstances is most
reasonably calculated to notify the parent or guardian of the
existence and pendency of the action:
' (A) If the address of the parent or guardian is known, by
sending the parent or guardian a copy of the summons by
registered or certified mail with a return receipt to be signed
by the addressee only;
' (B) By posting at specified locations; or
' (C) By publication of summons pursuant to subsection (5) of
this section.
' (b) If alternative service is ordered the court shall specify
a time for response.
' (5)(a) On written motion and affidavit that service cannot be
made by any method otherwise specified in this section, the court
may order service by publication.
' (b) In addition to the contents of a summons as described in
section 6 of this 2001 Act, a published summons must also contain
the date of first publication of the summons. If the names of one
or both parents or the guardian are unknown, they may be summoned
as 'The parent(s) or guardian of (naming or describing the
child), found (stating the address or place where the child was
found)'.
' (c) An order for publication must direct that publication be
made in a newspaper of general circulation in the county where
the action is commenced or, if there is no such newspaper, in a
newspaper to be designated as most likely to give notice to the
person to be served. The summons must be published three times in
successive calendar weeks. If the person effecting service knows
of a specific location other than the county where the action is
commenced where publication might reasonably result in actual
notice to the person to be served, the person effecting service
shall so state in the affidavit required by paragraph (a) of this
subsection, and the court may order publication in a comparable
manner at such location in addition to, or in lieu of,
publication in the county where the action is commenced.
' (d) If the court orders service by publication and the person
effecting service knows or with reasonable diligence can
ascertain the current address of the person to be served, the
person effecting service shall mail a copy of the summons and the
petition to the person being served at the address either by
first class certified or registered mail with a return receipt
requested or by express mail. If the person effecting service
does not know and cannot upon diligent inquiry ascertain the
current address of a person being served, a copy of the summons
and the petition must be mailed by the methods specified in this
paragraph to the person being served at that person's last known
address. If the person effecting service does not know, and
cannot ascertain upon diligent inquiry, the current or last known
address of the person being served, mailing of a copy of the
summons and the petition is not required. + }
' { + SECTION 10. + } { + The summons must be promptly
returned to the clerk with whom the petition is filed with proof
of service or mailing or with proof that the person to be served
cannot be found. The summons may be returned by first class
mail. + }
' { + SECTION 11. + } { + (1) Except for service by
publication, proof of service of summons or mailing must be made
by:
' (a) The certificate of the server if the summons is not
served by a sheriff or a sheriff's deputy. The certificate must
indicate the time, place and manner of service, that the server
is a competent person of at least 18 years of age and is a
resident of the state of service or of this state and that the
server reasonably believes that the person served is the
identical one named in the summons. If the person served was not
personally served, the server shall state in the certificate
when, where and with whom a copy of the summons and petition was
left or describe in detail the manner and circumstances of
service. If the summons and petition were mailed, the certificate
may be made by the person completing the mailing or the attorney
for any party and must state the circumstances of mailing and
have the return receipt attached.
' (b) The sheriff's or sheriff's deputy's certificate of
service if the summons is served by a sheriff or a sheriff's
deputy. The certificate must indicate the time, place and manner
of service and, if the person served was not personally served,
when, where and with whom a copy of the summons and petition was
left or describe in detail the manner and circumstances of
service. If the summons and petition were mailed, the certificate
must state the circumstances of mailing and have the return
receipt attached.
' (2) Service by publication must be proved by an affidavit in
substantially the following form: + }
] _______________________________________________________________
{ +
AFFIDAVIT OF PUBLICATION + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
STATE OF OREGON)
)ss.
County of _____
) + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + I, _____, being first duly sworn, depose and say that I am
the _____ (here set forth the title or job description of the
person making the affidavit), of the _____, a newspaper of
general circulation published at _____ in the aforesaid county
and state; that I know from my personal knowledge that the _____,
a printed copy of which is hereto annexed, was published in the
entire issue of said newspaper three times in the following
issues: (here set forth dates of issues in which the same was
published).
Subscribed and sworn to before me this ___ day of ________,
2__. + }
____________
{ + Notary Public for Oregon + }
{ + My commission expires: ________. + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
] _______________________________________________________________
{ + ' (3) The affidavit of service may be made and certified
before a notary public or other official authorized to administer
oaths by the United States, any state or territory of the United
States or the District of Columbia. The notary public or official
shall affix the notary's or official's official seal, if any, to
the affidavit. The signature of the notary or other official,
when attested by the affixing of the official seal of the person,
is prima facie evidence of authority to make and certify the
affidavit.
' (4) A certificate or affidavit containing proof of service
may be made upon the summons or as a separate document attached
to the summons.
' (5) In addition to the other ways specified in this section,
proof of service may be made by a written acceptance of service
by the person who was served.
' (6) If summons has been properly served, failure to make or
file a proper proof of service does not affect the validity of
the service. + }
' { + SECTION 12. + } { + Failure to comply with provisions
of sections 5, 6, 7 and 13 of this 2001 Act relating to the form
of summons, issuance of summons or who may serve summons does not
affect the validity of service of summons or the existence of
jurisdiction over the person if the court determines that the
served person received actual notice of the substance and
pendency of the action. The court may allow amendment to a
summons or affidavit or certificate of service of summons. The
court shall disregard any error in the content of summons that
does not materially prejudice the substantive rights of the party
to whom summons was issued. If service is made in any manner
complying with sections 5 to 13 of this 2001 Act, the court shall
also disregard any error in the service of summons that does not
violate the due process rights of the party against whom summons
was issued. + }
' { + SECTION 13. + } { + (1) Summons must be issued to be
served on:
' (a) The legal parents of the child without regard to who has
legal or physical custody of the child;
' (b) The legal guardian of the child; and
' (c) A putative father of the child if he has provided or
offered to provide for the physical, emotional, custodial or
financial needs of the child in the previous six months or was
prevented from doing so by the mother of the child.
' (2) If the child is 12 years of age or older, summons must be
issued to be served on the child.
' (3) Summons must be issued to be served on the person who has
physical custody of the child. The summons may require the person
who has physical custody of the child to bring the child before
the court at the time and place stated in the summons. If it
appears to the court that the welfare of the child or of the
public requires that the child immediately be taken into custody,
the court may indorse an order on the summons directing the
officer serving it to take the child into custody.
' (4) Summons may be issued requiring the appearance of any
person whose presence the court deems necessary. + }
' { + SECTION 14. + } { + (1) All process authorized to be
issued by any court or officer of the court runs in the name of
the State of Oregon and must be signed by the officer issuing the
process, and if the process is issued by a clerk of the court,
the seal of office of the clerk must be affixed to the process.
Summonses and subpoenas are not process.
' (2) A civil process may be served or executed on Sunday or
any legal holiday. No limitation or prohibition stated in ORS
1.060 applies to the service or execution of a civil process on a
Sunday or legal holiday.
' (3) An order in any case, and all other papers requiring
service, may be transmitted by telegraph or facsimile for service
in any place. The facsimile or telegraphic copy, as defined in
ORS 165.840, of the order or paper transmitted may be served or
executed by the officer or person to whom it is sent for that
purpose and returned by the officer or person if any return is
required in the same manner and with the same force and effect in
all respects as if the copy were the original. The officer or
person serving or executing the order or paper has the same
authority and is subject to the same liabilities as if the copy
were the original. The original, if an order, must be filed in
the court from which it was issued and a certified copy of the
order must be preserved in the office from which it was sent. The
operator may use either the original or certified copy to
transmit the order or paper.
' (4) Proof of service or execution of process must be made as
provided in section 11 of this 2001 Act. + }
' { + SECTION 15. + } { + (1) Except as otherwise provided
in sections 2 to 35 of this 2001 Act, every order, every petition
and answer subsequent to the original petition, every written
motion other than one that may be heard ex parte and every
written request and similar paper must be served upon each of the
parties.
' (2)(a) Whenever under sections 2 to 35 of this 2001 Act
service is required or permitted to be made upon a party, and
that party is represented by an attorney, the service must be
made upon the attorney unless otherwise ordered by the court.
Service upon the attorney or upon a party must be made by
delivering a copy to the attorney or party, by mailing it to the
attorney's or party's last known address or, if the party is
represented by an attorney, by facsimile communication device as
provided in subsection (5) of this section. As used in this
paragraph, 'delivery of a copy ' means:
' (A) Handing it to the person to be served;
' (B) Leaving it at the person's office with the person's clerk
or a person apparently in charge of the office or, if there is no
one in charge, leaving it in a conspicuous place in the office;
or
' (C) If the office is closed or the person to be served has no
office, leaving it at the person's dwelling house or usual place
of abode with a person who is over 14 years of age and who
resides at the dwelling house or usual place of abode.
' (b) A party who has appeared without providing an appropriate
address for service may be served by placing a copy of the paper
required to be served in the court file. Service by mail is
complete upon mailing. Service of any notice or other paper to
bring a party into contempt may only be upon such party
personally.
' (3) All papers required to be served upon a party under
subsection (1) of this section must be filed with the court
within a reasonable time after service. Except as otherwise
provided in ORS 419B.190 and sections 5 to 13 of this 2001 Act,
proof of service of all papers required or permitted to be served
may be by written acknowledgment of service, by an affidavit of
the person making service or by a certificate of an attorney.
Proof of service may be made upon the papers served or as a
separate document attached to the papers. When service is made by
facsimile communication device, proof of service must be made by
an affidavit of the person making service or by a certificate of
an attorney. The printed confirmation of receipt of the message
generated by the facsimile machine must be attached to the
affidavit or certificate.
' (4) The filing of any papers with the court must be made by
filing them with the clerk of the court or the person exercising
the duties of that office. The clerk or the person exercising the
duties of that office shall indorse the time of day, day of the
month, month and year upon the paper. The clerk or person
exercising the duties of that office is not required to receive
any paper for filing unless:
' (a) The contents of the paper are legible; and
' (b) All of the following are legibly indorsed on the front of
the paper:
' (A) The name of the court;
' (B) The title of the cause and the paper;
' (C) The names of the parties; and
' (D) If there is one, the name of the attorney for the parties
requesting filing.
' (5) Whenever under sections 2 to 35 of this 2001 Act service
is required or permitted to be made upon a party and that party
is represented by an attorney, the service may be made upon the
attorney by means of a facsimile if the attorney maintains such a
device at the attorney's office and the device is operating at
the time service is made. + }
' { + SECTION 16. + } { + (1) In computing any period of
time prescribed or allowed by any applicable statute, by the
local rules of any court or by order of court, the day of the act
or event from which the designated period of time begins to run
is not included. The last day of the period so computed is
included, unless it is a Saturday or legal holiday, in which
event the period runs until the end of the next day that is not a
Saturday or a legal holiday. If the period of time relates to
serving a public officer or filing a document at a public office
and if the last day falls on a day when that particular office is
closed before the end of or for all of the normal work day, the
last day is excluded in computing the period of time, in which
event the period runs until the close of office hours on the next
day the office is open for business. When the period of time
prescribed or allowed, without including the extra time allowed
by subsection (2) of this section, is less than seven days,
intermediate Saturdays and legal holidays are excluded in the
computation. As used in this subsection, a 'legal holiday' means
a day described in ORS 187.010 or 187.020.
' (2) Except for service of summons, whenever a party has the
right or is required to do some act within a prescribed period
after the service of a notice or other paper upon the party and
the notice or paper is served by mail, three days are added to
the prescribed period. + }
' { + SECTION 17. + } { + (1) All petitions, answers,
motions and other papers must be liberally construed with a view
of substantial justice between the parties.
' (2) In every stage of an action, the court shall disregard an
error or defect in a petition, answer, motion, other paper or
proceeding that does not affect the substantial rights of the
adverse party. + }
' { + SECTION 18. + } { + (1) An application for an order is
a motion. Unless a motion is made in court, the motion must be
in writing, state with particularity the factual and legal
grounds for the motion and set forth the relief or order sought.
' (2) Sections 19 and 20 of this 2001 Act and any local rules
of any court applicable to captions, signing and other matters of
form of petitions and answers apply to all motions and other
papers provided for by sections 2 to 35 of this 2001 Act. + }
' { + SECTION 19. + } { + (1) Every petition, answer, motion
or other paper must contain a caption setting forth the name of
the court, the title of the action and the register number of the
case.
' (2) When a party does not know the name of another party and
alleges that lack of knowledge in a petition, answer, motion or
other paper, the other party may be designated by any name. When
the other party's true name is discovered, the process and all
petitions, answers, motions, other papers and proceedings in the
case may be amended by substituting the true name. + }
' { + SECTION 20. + } { + (1) If a party is represented by
an attorney, every answer, motion and other paper of the party
must be signed by an attorney of record who is an active member
of the Oregon State Bar. If a party is not represented by an
attorney, the party shall sign the petition, answer, motion or
other paper and state the address of the party. Only petitions
need be verified. Motions must be accompanied by an affidavit
unless the parties agree otherwise.
' (2) If a petition, answer, motion or other paper is not
signed, it must be stricken unless it is signed promptly after
the omission is called to the attention of the pleader or movant.
' (3)(a) Except as otherwise provided in paragraph (d) of this
subsection, by signing, filing or otherwise submitting an
argument in support of a petition, answer, motion or other paper,
an attorney or party makes the certifications to the court
identified in paragraphs (b), (c) and (d) of this subsection and
further certifies that the certifications are based on the
person's reasonable knowledge, information and belief formed
after the making of any inquiry that is reasonable under the
circumstances.
' (b) A party or attorney certifies that the petition, answer,
motion or other paper is not being presented for any improper
purpose including, but not limited to, harassing or causing
unnecessary delay or needless increase in the cost of litigation.
' (c) An attorney certifies that the claims and other legal
positions taken in the petition, answer, motion or other paper
are warranted by existing law or by a nonfrivolous argument for
the extension, modification or reversal of existing law or the
establishment of new law.
' (d) A party or attorney certifies that the allegations and
other factual assertions in the petition, answer, motion or other
paper are supported by evidence. An allegation or other factual
assertion that the party or attorney does not wish to certify is
supported by evidence must be specifically identified. The party
or attorney certifies that the party or attorney reasonably
believes that an allegation or other factual assertion so
identified will be supported by evidence after further
investigation and discovery. + }
' { + SECTION 21. + } { + (1) No later than 30 days after a
petition alleging jurisdiction under ORS 419B.100 is filed, each
party about whom allegations have been made shall admit or deny
the allegations. Unless the court specifies how admissions or
denials are to be made pursuant to section 2 of this 2001 Act,
admissions and denials may be made orally in court or in writing.
' (2) Allegations in a petition that are not admitted or denied
are denied. + }
' { + SECTION 22. + } { + When a court conducts a hearing,
the court shall inquire whether a child is an Indian child
subject to the Indian Child Welfare Act. If the court knows or
has reason to know that an Indian child is involved, the court
shall enter an order requiring the State Office for Services to
Children and Families to notify the Indian child's tribe of the
pending proceedings and of the tribe's right to intervene and
shall enter an order that the case be treated as an Indian Child
Welfare Act case until such time as the court determines that the
case is not an Indian Child Welfare Act case. + }
' { + SECTION 23. + } { + (1) As used in this section,
'deposition' means a deposition taken under ORS 419B.315.
' (2) Objections to the competency of a witness or to the
competency, relevancy, or materiality of testimony are not waived
by failure to make them before or during the taking of a
deposition unless the ground for the objection is one that might
have been obviated or removed if presented before or during the
taking of the deposition.
' (3) Unless seasonable objection is made at the time the
deposition is taken, the following are waived:
' (a) Errors and irregularities occurring at the oral
examination in the manner of taking the deposition, in the form
of the questions or answers, in the oath or affirmation or in the
conduct of the parties; and
' (b) Errors of any kind that might be obviated, removed or
cured if promptly presented.
' (4) Unless a motion to suppress the deposition or some part
of the deposition is made with reasonable promptness after the
error or irregularity is, or with due diligence might have been,
ascertained, errors and irregularities in the manner in which the
testimony is transcribed or the deposition is prepared, signed,
certified, sealed, indorsed, transmitted and filed are
waived. + }
' { + SECTION 24. + } { + (1) After the proponent of the
petition has completed the presentation of evidence, any other
party, without waiving the right to offer evidence in the event
the motion is not granted, may move for dismissal of any or all
of the allegations of the petition on the ground that upon the
facts and the law the proponent of the petition has failed to
prove the allegations or, if proven, the allegations do not
constitute a legal basis for the relief sought by the petition.
The court may order dismissal of the petition or one or more of
the allegations of the petition, or the court may decline to
render any order until the close of all the evidence.
' (2) Unless the court in its judgment of dismissal otherwise
specifies, a dismissal under this section operates as an
adjudication without prejudice.
' (3) At any time at the request of a party or upon the court's
own motion, the court may order a settlement conference or, if
funds are available for a mediator, mediation. + }
' { + SECTION 25. + } { + (1) A subpoena is a writ or an
order directed to a person and may require the attendance of the
person at a particular time and place to testify as a witness on
behalf of a particular party mentioned in the subpoena or may
require the person to produce books, papers, documents or
tangible things and permit inspection of them at a particular
time and place. A subpoena may be for a trial, a hearing of any
kind or a deposition under ORS 419B.315. A subpoena requiring
attendance to testify as a witness requires that the witness
remain until the testimony is closed unless sooner discharged,
but at the end of each day's attendance a witness may demand of
the party, or the party's attorney, the payment of legal witness
fees for the next following day and if not then paid, the witness
is not obliged to remain longer in attendance. Every subpoena
must state the name of the court and the title of the action.
' (2) Any party may have compulsory attendance of witnesses or
the compulsory production of records. + }
' { + SECTION 26. + } { + A subpoena may command the person
to whom it is directed to produce and permit inspection and
copying, at the time and place specified in the subpoena, of
designated books, papers, documents or tangible things in the
possession, custody or control of the person. A command to
produce books, papers, documents or tangible things and permit
inspection of them may be joined with a command to appear at
trial or hearing or, if the books, papers, documents or tangible
things are to be produced before trial, the command may be issued
separately. A person commanded to produce and permit inspection
and copying of designated books, papers, documents or tangible
things but not commanded to also appear for deposition under ORS
419B.315, hearing or trial may, within 14 days after service of
the subpoena or before the time specified for compliance if such
time is less than 14 days after service, serve upon the party or
attorney designated in the subpoena written objection to
inspection or copying of any or all of the designated materials.
If objection is made, the party serving the subpoena may not
inspect and copy the materials except pursuant to an order of the
court in whose name the subpoena was issued. If objection has
been made, the party serving the subpoena, upon notice to the
person commanded to produce, may move for an order to compel
production. When a subpoena commands production of books, papers,
documents or tangible things, the court, upon motion made
promptly and in any event at or before the time specified in the
subpoena for compliance with the subpoena, may:
' (1) Quash or modify the subpoena if it is unreasonable and
oppressive; or
' (2) Condition denial of the motion upon the advancement by
the person in whose behalf the subpoena is issued of the
reasonable cost of producing the books, papers, documents or
tangible things. + }
' { + SECTION 27. + } { + (1) A subpoena may be issued:
' (a) To require attendance before a court, at the trial of an
issue in a court or, if separate from a subpoena commanding the
attendance of a person, to produce and permit inspection of
books, papers, documents or tangible things. A subpoena may be
issued under this paragraph:
' (A) In blank by the clerk of the court in which the action is
pending or, if there is no clerk, by a judge or justice of the
court; or
' (B) By an attorney of record of the party to the action in
whose behalf the witness is required to appear, subscribed by the
signature of the attorney.
' (b) To require attendance at a deposition authorized under
ORS 419B.315.
' (c) To require attendance out of court in cases not provided
for in paragraph (a) of this subsection, before a judge, justice
or other officer authorized to administer oaths or take testimony
in any matter under the laws of this state. A subpoena may be
issued under this paragraph by the judge, justice or other
officer before whom the attendance is required.
' (2) Upon the request of a party or attorney, any subpoena
issued by a clerk of court may be issued in blank and delivered
to the party or attorney requesting it, who must fill it in
before service.
' (3) A subpoena to produce and permit inspection of records of
a person who is not a party to the action must be served on the
person and, if the person is represented, the person's attorney
at least 10 days before the subpoena is served on the keeper or
custodian of the records. + }
' { + SECTION 28. + } { + (1) Except as provided in
subsection (2) of this section, a subpoena may be served by the
party or any other person 18 years of age or older. Except as
provided in subsections (3) and (4) of this section, the service
must be made by delivering a copy to the witness personally. The
service must be made so as to allow the witness a reasonable time
for preparation and travel to the place of attendance. If the
subpoena is not accompanied by a command to appear at trial,
hearing or deposition under ORS 419B.315, whether the subpoena is
served personally or by mail, copies of a subpoena commanding
production and inspection of books, papers, documents or tangible
things before trial must be served on each party at least seven
days before the subpoena is served on the person required to
produce and permit inspection, unless the court orders a shorter
period.
' (2)(a) A law enforcement agency shall designate an individual
upon whom service of a subpoena may be made. A designated
individual must be available during normal business hours. In the
absence of a designated individual, service of a subpoena under
paragraph (b) of this subsection may be made upon the officer in
charge of the law enforcement agency.
' (b) If a peace officer's attendance at trial is required as a
result of employment as a peace officer, a subpoena may be served
on the officer by delivering a copy personally to the officer or
to an individual designated by the agency that employs the
officer no later than 10 days prior to the date attendance is
sought. A subpoena may be served in this manner only if the
officer is currently employed as a peace officer and is present
within the state at the time of service.
' (c) When a subpoena has been served as provided in paragraph
(b) of this subsection, the law enforcement agency shall make a
good faith effort to give actual notice to the officer whose
attendance is sought of the date, time and location of the court
appearance. If the officer cannot be notified, the law
enforcement agency shall promptly notify the court and a
postponement or continuance may be granted to allow the officer
to be personally served.
' (d) As used in this subsection, 'law enforcement agency '
means the Oregon State Police, a county sheriff's department or a
municipal police department.
' (3) Under the following circumstances, service of a subpoena
to a witness by mail has the same legal force and effect as
personal service:
' (a) The attorney mailing the subpoena certifies in connection
with or upon the return of service that the attorney, or the
attorney's agent, has had personal or telephone contact with the
witness and the witness indicated a willingness to appear at
trial if subpoenaed; or
' (b) The subpoena was mailed to the witness more than five
days before trial by certified mail or some other designation of
mail that provides a receipt for the mail signed by the recipient
and the attorney received a return receipt signed by the witness
prior to trial.
' (4) Service of subpoena by mail may be used for a subpoena
commanding production of books, papers, documents or tangible
things that is not accompanied by a command to appear at trial or
hearing or at a deposition under ORS 419B.315.
' (5) Proof of service of a subpoena is made in the same manner
as proof of service of a summons except that the server is not
required to certify that the server is not a party in the action
or an attorney for a party in the action. + }
' { + SECTION 29. + } { + If a witness is confined in a
prison or jail in this state, a subpoena may be served on the
witness and attendance of the witness may be compelled. The
subpoena and court order must be served upon the custodian of the
witness. The court may order:
' (1) Temporary removal and production of the witness for the
purpose of giving testimony;
' (2) That the witness be allowed to testify by telephone or
closed circuit television; or
' (3) That the testimony of the witness be taken by deposition
under ORS 419B.315 at the place of confinement. + }
' { + SECTION 30. + } { + Disobedience to a subpoena or a
refusal to be sworn or answer as a witness is punishable as
contempt by the court before whom the action is pending or by the
judge or justice issuing the subpoena. + }
' { + SECTION 31. + } { + (1) If a child is before the court
and a person who is required to be summoned has been summoned and
has failed to appear for any dates, including but not limited to
trial dates for which the person has been summoned, and the
petitioner is ready to proceed, the court may proceed with the
case in the person's absence. If the summoned party seeks a
change of the date for which the party is summoned, the party
must appear at the time the request to change the date is made to
receive service of summons for a new date or must authorize the
party's attorney to accept service of summons for the new date.
' (2) Except by express permission of the court, for a
jurisdictional or termination of parental rights trial or related
mandatory court appearances, summoned parties may not waive
appearance or appear through counsel. + }
' { + SECTION 32. + } { + If it appears to the court that a
person required to be summoned under sections 5 to 13 of this
2001 Act was not served as required by sections 5 to 13 of this
2001 Act or was served on such short notice that the person did
not have a reasonable opportunity to appear at the time fixed,
upon motion of the person, the court shall reopen the case for
full consideration. A motion for a new hearing must be made not
later than 10 days after entry of the order for which a new
hearing is sought. + }
' { + SECTION 33. + } { + (1) Except as otherwise provided
in this section, on motion and such notice and hearing as the
court may direct, the court may modify or set aside any order or
judgment made by it. Reasons for modifying or setting aside an
order or judgment include, but are not limited to:
' (a) Clerical mistakes in judgments, orders or other parts of
the record and errors in the order or judgment arising from
oversight or omission. These mistakes and errors may be corrected
by the court at any time on its own motion or on the motion of a
party and after notice as the court orders to all parties who
have appeared. During the pendency of an appeal, an order or
judgment may be corrected as provided in subsection (7) of this
section.
' (b) Excusable neglect.
' (c) Newly discovered evidence that by due diligence could not
have been discovered in time to present it at the hearing from
which the order or judgment issued.
' (2) A motion to modify or set aside an order or judgment or
request a new hearing must be accompanied by an affidavit that
states with reasonable particularity the facts and legal basis
for the motion.
' (3) A motion to modify or set aside an order or judgment must
be made within a reasonable time except no order or judgment
pursuant to ORS 419B.527 may be set aside or modified during the
pendency of a proceeding for the adoption of the child, nor after
a petition for adoption has been granted.
' (4) Except as provided in subsection (6) of this section,
notice and a hearing as provided in ORS 419B.195, 419B.198,
419B.201, 419B.205, 419B.208, 419B.310 and 419B.325 and section
25 of this 2001 Act must be provided in any case when the effect
of modifying or setting aside the order or judgment will or may
be to deprive a parent of the legal custody of the child, to
place the child in an institution or agency or to transfer the
child from one institution or agency to another. The provisions
of this subsection do not apply to a parent whose rights have
been terminated under ORS 419B.500 to 419B.524 or whose child has
been permanently committed by order or judgment of the court
unless an appeal from the order or judgment is pending.
' (5) When an Indian child is involved, notice must be provided
as required under the Indian Child Welfare Act.
' (6) Except when the child is an Indian child, notice and a
hearing are not required when the effect of modifying or setting
aside the order or judgment will be to transfer the child from
one foster home to another.
' (7) A motion under subsection (1) of this section may be
filed with and decided by the trial court during the time an
appeal from a judgment is pending before an appellate court. The
moving party shall serve a copy of the motion on the appellate
court. The moving party shall file a copy of the trial court's
order or judgment in the appellate court within seven days of the
date of the trial court order or judgment. Any necessary
modification of the appeal required by the court order or
judgment must be pursuant to rule of the appellate court.
' (8) This section does not limit the inherent power of a court
to modify an order or judgment within a reasonable time or the
power of a court to set aside an order or judgment for fraud upon
the court. + }
' { + SECTION 34. + } { + (1) On its own motion or on the
motion of a party, the court may stay the effect of any order or
judgment made by it pending appeal as provided in ORS 19.335,
19.340 and 19.350 or other provision of law.
' (2) This section does not limit the right of a party to a
stay otherwise provided for by law. + }
' { + SECTION 35. + } { + A court may enforce an order or
judgment directing a party to perform a specific act by punishing
the party refusing or neglecting to comply with the order or
judgment, as for a contempt as provided in ORS 33.015 to
33.155. + }
' { + SECTION 36. + } ORS 419B.260 is amended to read:
' 419B.260. (1) As used in this section, 'consolidated' means
that actions are heard before one judge of the circuit court to
determine issues pending regarding a child or children.
{ - Consolidation does not merge the procedural or substantive
law of the individual actions. Parties to the individual
consolidated actions do not have standing, solely by virtue of
the consolidation, in every action subject to the order of
consolidation. Parties must comply with provisions for
intervention or participation in a particular action under the
provisions of law applicable to that action. - }
' (2) In any action filed in the juvenile court in which the
legal or physical custody of a child is at issue and there is
also pending, or adjudicated, a child custody, parenting
time { + , + } { - or - } { + visitation, restraining
order, + } filiation { + or Family Abuse Prevention Act + }
action involving the child in a domestic relations, filiation or
guardianship proceeding, the matters shall be consolidated.
' { + (3) Consolidation does not merge the procedural or
substantive law of the individual actions. Parties to the
individual consolidated actions do not have standing, solely by
virtue of the consolidation, in every action subject to the order
of consolidation. Parties must comply with provisions for
intervention or participation in a particular action under the
provisions of law applicable to that action. + }
' { - (3) - } { + (4) + } Upon entry of an order of
consolidation, all pending issues pertaining to the actions
subject to the order shall be heard together in juvenile court.
The court shall hear the juvenile matters first unless the court
finds that it is in the best interest of the child to proceed
otherwise.
' { - (4) - } { + (5) + } A judge shall make and modify
orders and findings in actions subject to the order of
consolidation upon the filing of proper { - pleadings - } { +
motions + } and notice as provided by law applicable to the
actions. Any findings, orders or modifications must be consistent
with the juvenile court orders, and persons who were parties to
the juvenile court action may not relitigate issues in
consolidated actions.
' { - (5) - } { + (6) + } The judge shall set out separately
from orders entered under this chapter or ORS chapter 419C any
orders or judgments made in other actions subject to the
consolidation order. The { - clerk of the - } { + trial + }
court { + administrator + } shall file the orders and judgments
in the appropriate actions subject to the consolidation
order. { + An order or judgment in an individual juvenile court
action is final if it finally disposes of the rights and duties
of the parties to that action, without reference to whether the
order or judgment disposes of the rights and duties of the
parties to another action with which the action has been
consolidated. + }
' { - (6)(a) - } { + (7)(a) + } When the actions described
in subsection (2) of this section exist in two or more judicial
districts, the judges assigned to the actions shall confer to
determine the appropriate judicial district in which to
consolidate and hear the actions. The judges shall confer not
later than 10 judicial days after a court has received notice of
the existence of an action in another judicial district.
' (b) If the judges agree on the judicial district in which the
actions should be consolidated, the judges shall take such action
as is necessary to consolidate the actions in the circuit court
of that district.
' (c) If the judges do not agree on the judicial district in
which the actions should be consolidated, the actions must be
consolidated in the judicial district in which the juvenile
action is filed or, if more than one juvenile action is pending,
in the judicial district in which the first juvenile action was
filed.
' { - (7) - } { + (8) + } Nothing in this section requires
the consolidation of any administrative proceeding under ORS
chapter 25 or 416 with a juvenile court or other action.
' { + SECTION 37. + } ORS 419B.190 is amended to read:
' 419B.190. (1)(a) When { - , pursuant to - } a petition
{ + has been filed + } alleging that the child has been
physically or sexually abused, { - a child is taken into
temporary custody and placed in shelter care or placement in such
custody and care is imminent, - } the court { - , at the hearing
required under ORS 419B.185, - } may enter an order restraining
the alleged perpetrator of the abuse from having contact with the
child or attempting to contact the child and requiring the
alleged perpetrator to move from the household in which the child
resides { + . + } { - if - } The court { + may issue a
restraining order only if the court + } finds that:
' (A) There is probable cause to believe the abuse occurred and
that the person to be restrained committed the abuse; and
' (B) The order is in the best interest of the child.
' (b) Upon finding that to do so would aid in protecting the
victim of the alleged abuse, the court may enter { + , in
addition to + } a restraining order described in paragraph (a) of
this subsection { + , + }
{ - or - } other appropriate orders including, but not limited
to, orders that control contact between the alleged abuser and
other children in the household.
' (c) The court shall include in an order entered under this
subsection the following information about the person to be
restrained:
' (A) Name;
' (B) Address;
' (C) Age and birth date;
' (D) Race;
' (E) Sex;
' (F) Height and weight; and
' (G) Color of hair and eyes.
' (d) The court may include in the order a provision that a
peace officer accompany the restrained person to the household
when it is necessary for the restrained person to remove personal
property.
' (2) If the court enters an order under this section:
' (a) The clerk of the court shall provide without charge the
number of certified true copies of the petition and order
necessary to effect service and shall have a true copy of the
petition and order delivered to the sheriff { + or other person
qualified to serve the order + } for service upon the person to
be restrained; and
' (b) The sheriff { + or other person qualified to serve the
order + } shall serve the person to be restrained personally
unless that person is present at the hearing. After accepting the
order, if the sheriff { + or other person + } cannot complete
service within 10 days, the sheriff { + or other person + }
shall hold the order for future service and file a return to the
clerk of the court showing that service was not completed.
' (3) Within 30 days after an order is served under this
section, the restrained person may file a written request with
the court and receive a court hearing on any portion of the
order. If the restrained person requests a hearing under this
subsection:
' (a) The clerk of the court shall notify the parties and, if
the restrained person is not a party, the restrained person of
the date and time of the hearing; and
' (b) The court shall hold the hearing within 21 days after the
request and may cancel or modify the order.
' (4) Upon receipt of proof of service, when required, and a
true copy of the order, the sheriff shall immediately enter the
order into the Law Enforcement Data System maintained by the
Department of State Police. Entry into the Law Enforcement Data
System constitutes notice to all law enforcement agencies of the
existence of the order. Law enforcement agencies shall establish
procedures adequate to ensure that an officer at the scene of an
alleged violation of the order may be informed of the existence
and terms of the order. The order shall be fully enforceable in
any county in this state.
' (5) A restraining order issued pursuant to this section
remains in effect for a period of one year or until the order is
modified, amended or terminated by court order.
' (6) A court that issued a restraining order under this
section may renew the order for a period of up to one year if the
court finds that there is probable cause to believe the renewal
is in the best interest of the child. The court may renew the
order on motion alleging facts supporting the required finding.
If the renewal order is granted, subsections (2) and (3) of this
section apply.
' (7) If a restraining order issued pursuant to this section is
terminated before its expiration date, the clerk of the court
shall promptly deliver a true copy of the termination order to
the sheriff. The sheriff shall promptly remove the original order
from the Law Enforcement Data System.
' (8) Pending a contempt hearing for alleged violation of a
restraining order issued under this section, a person arrested
and taken into custody pursuant to ORS 133.310 may be released as
provided in ORS 135.230 to 135.290. Unless the order provides
otherwise, the security amount for release shall be $5,000.
' { + (9) When a restraining order entered under this section
prohibits the restrained person from contacting the protected
person in writing, the restrained person does not violate the
restraining order by serving on the protected person a copy of a
notice of appeal of the restraining order or any other document
required by law to be served on the adverse party to an appeal
if:
' (a) Neither the restrained person nor the protected person is
represented by counsel;
' (b) The restrained person serves the document by mail; and
' (c) The contents of the document are not intended to harass
or intimidate the protected person. + }
' { + SECTION 38. + } ORS 419B.245 is amended to read:
' 419B.245. { + (1) A petition, answer, motion or other paper
may be amended by a party within a reasonable time before an
adjudication on the petition, answer, motion or other paper.
Whenever an amended petition, answer, motion or other paper is
filed, it shall be served upon all parties. When the interests of
justice require additional time to prepare, due to the amendments
to the petition, answer, motion or other paper, the court shall
grant such additional time as is reasonable.
' (2) + } The court, on motion of an interested party or on its
own motion, may at any time direct that the petition be amended.
If the amendment results in a substantial departure from the
facts originally alleged, the court shall grant such continuance
as the interests of justice may require.
' { + SECTION 39. + } ORS 419B.115 is amended to read:
' 419B.115. (1) Parties to proceedings in the juvenile court
under ORS 419B.100 and 419B.500 are:
' (a) The minor child;
' (b) The legal parents or guardian of the child;
' { + (c) A putative father of the child if he has provided
or offered to provide for the physical, emotional, custodial or
financial needs of the child in the previous six months or was
prevented from doing so by the mother of the child; + }
' { - (c) - } { + (d) + } The state;
' { - (d) - } { + (e) + } The juvenile department;
' { - (e) - } { + (f) + } A court appointed special
advocate, if appointed;
' { - (f) - } { + (g) + } The State Office for Services to
Children and Families or other child-caring agency if the agency
has temporary custody of the child; { - and - }
' { - (g) - } { + (h) + } { - An intervenor who petitions
or files a motion - } { + A person who has been allowed to
intervene + } on the basis of a child-parent relationship under
ORS 109.119 { + ;
' (i) A guardian ad litem appointed under subsection (2) of
this section; and
' (j) The tribe in cases subject to the Indian Child Welfare
Act if the tribe has intervened pursuant to the Indian Child
Welfare Act + }.
' { + (2) When a court determines that a parent or guardian,
due to mental or physical disability, cannot adequately act in
the parent's or guardian's interests or give direction to the
parent's or guardian's counsel on decisions the parent or
guardian must make, the court shall appoint some suitable person
to act as guardian ad litem for the parent or guardian. + }
' { - (2) - } { + (3) + } The rights of the parties include,
but are not limited to:
' (a) The right to notice of the proceeding and copies of the
{ - pleadings - } { + petitions, answers, motions and other
papers + };
' (b) The right to appear with counsel and to have counsel
appointed as otherwise provided by law;
' (c) The right to call witnesses, cross-examine witnesses and
participate in hearings;
' (d) The right of appeal; and
' (e) The right to request a hearing.
' { - (3)(a) - } { + (4)(a) + } Persons who are not parties
under subsection (1) of this section may petition the court for
rights of limited participation. The petition must be filed and
served on all parties no later than two weeks before a proceeding
in the case in which participation is sought. The petition must
state:
' (A) The reason the participation is sought;
' (B) How the person's involvement is in the best interest of
the child or the administration of justice;
' (C) Why the parties cannot adequately present the case; and
' (D) What specific relief is being sought.
' (b) If the court finds that the petition is well founded, the
court may grant rights of limited participation as specified by
the court.
' (c) Persons petitioning for rights of limited participation
are not entitled to court-appointed counsel.
' { - (4) - } { + (5) + } If a foster parent, preadoptive
parent or relative is currently providing care for a child, the
State Office for Services to Children and Families shall give the
foster parent, preadoptive parent or relative notice of a hearing
concerning the child and the court shall give the person an
opportunity to be heard. Except { - as provided in subsection
(1) of this section - } { + when allowed to intervene + }, the
foster parent, preadoptive parent or relative providing care for
the child shall not be considered a party to the juvenile court
proceeding solely because of notice and an opportunity to be
heard.
' { + SECTION 40. + } ORS 419B.300 is amended to read:
' 419B.300. (1) In all proceedings brought under ORS 419B.100
or 419B.500, each party, including the state, shall disclose to
each other party the following information and material within
the possession or under the control of the party:
' (a) The names and addresses of all persons the party intends
to call as witnesses at any stage of the hearing, together with
any relevant written or recorded statements or memoranda of any
oral statements of such persons;
' (b) Any written or recorded statements or memoranda of any
oral statements made either by the parent or by the child to any
other party or agent for any other party;
' (c) Any reports or statements of experts { - made in
connection with the particular case - } { + who will be called
as witnesses + }, including the results of any physical or mental
examinations and of comparisons or experiments that the party
intends to offer in evidence at the hearing; and
' (d) Any books, papers, documents or photographs that the
party intends to offer in evidence at the hearing, or that were
obtained from or belong to any other party.
' (2) { + (a) + } Disclosure shall be made as soon as
practicable following the filing of a petition { - . - }
{ + and no later than:
' (A) Thirty days after a petition alleging jurisdiction has
been filed.
' (B) Three days before any review hearing, except for
information received or discovered less than three days prior to
the hearing.
' (C) Ten days before a termination trial, except for
information received or discovered less than 10 days prior to the
trial.
' (b) + } The court may supervise the exercise of discovery to
the extent necessary to insure that it proceeds properly and
expeditiously.
' (3) The obligation to disclose is an ongoing obligation and
if a party finds, either before or during the hearing, additional
material or information that is subject to disclosure, the
information or material shall be promptly disclosed.
' (4) The following material and information need not be
disclosed:
' (a) Attorney work product { - , legal research, records,
correspondence, reports or memoranda to the extent they contain
the opinions, theories or conclusions of the attorneys or their
agents and peace officers or their agents - } ; and
' (b) Transcripts, recordings or memoranda of testimony of
witnesses before the grand jury, except transcripts or recordings
of testimony of a party to the current juvenile court proceeding.
' { - (5) When some parts of certain material are subject to
disclosure and other parts are not, as much of the material as is
subject to disclosure shall be disclosed. - }
' { - (6) Upon being notified of any breach of a duty to
disclose material or information, the court may order the
violating party to permit inspection of the material, or grant a
continuance, or refuse to permit the witness to testify, or
refuse to receive in evidence the material that was not
disclosed, or enter such other order as the court considers
appropriate. - }
' { - (7) - } { + (5) + } Upon a showing of good cause, the
court may at any time order that specified disclosure be denied,
restricted or deferred or make such other order as is
appropriate.
' { - (8) - } { + (6) + } Upon request of a party, the court
may permit a showing of good cause for denial or regulation of
disclosure { + by the parties or the contents of subpoenaed
materials + }, or portion of
{ - such - } { + the + } showing, to be made in camera. A
record shall be made of the proceeding.
' { - (9) - } { + (7) + } If the court enters an order
{ - granting relief - } following an in camera showing, the
entire record of the showing shall be sealed and preserved in the
records of the court, to be made available to the appellate court
in the event of an appeal. The trial court { - , in its
discretion, - } may, after disposition, unseal the record.
' { + (8) When some parts of certain material are subject to
disclosure and other parts are not, as much of the material as is
subject to disclosure shall be disclosed.
' (9) Upon being notified of any breach of a duty to disclose
material or information, the court may:
' (a) Order the violating party to permit inspection of the
material;
' (b) Grant a continuance;
' (c) Refuse to permit the witness to testify;
' (d) Refuse to receive in evidence the material that was not
disclosed; or
' (e) Enter such other order as the court considers
appropriate. + }
' { + SECTION 41. + } ORS 419B.285 is amended to read:
' 419B.285. If the child is before the court, the court has the
power to proceed with the case without service upon those
entitled to service under { - ORS 419B.271 - } { + sections 5
to 13 of this 2001 Act + } if diligent efforts have failed to
reveal the identity or the whereabouts of the person, except
that:
' (1) No order entered pursuant to ORS 419B.500, 419B.502,
419B.504, 419B.506 and 419B.508 may be entered unless ORS
{ - 419B.515, - } 419B.518, 419B.521 and 419B.524 { + and
sections 5 to 13 of this 2001 Act + } are complied with.
' (2) No order for support as provided in ORS 419B.400,
419B.402, 419B.404 and 419B.406 may be entered against a person
unless that person is served as provided in { - ORS
419B.274 - } { + sections 5 to 13 of this 2001 Act + }.
' { - (3) If it appears to the court that a parent or guardian
required to be served by ORS 419B.265, 419B.268 and 419B.271 was
not served as provided in ORS 419B.274, 419B.277 and 419B.280 or
was served on such short notice that the parent or guardian did
not have a reasonable opportunity to appear at the time fixed,
the court shall, upon petition by the parent or guardian, reopen
the case for full consideration. - }
' { + SECTION 42. + } ORS 25.280 is amended to read:
' 25.280. In any judicial or administrative proceeding for the
establishment or modification of a child support obligation under
ORS chapters 107, 108, 109 and 416, and ORS 110.303 to 110.452,
419B.400, { - 419B.420, - } 419C.590 or 419C.610 { + or
section 33 of this 2001 Act + }, the amount of support determined
by the formula established pursuant to ORS 25.270 to 25.287,
107.105, 416.415, 416.435 and 419B.400 or 419C.590 shall be
presumed to be the correct amount of the obligation. This shall
be a rebuttable presumption and a written finding or a specific
finding on the record that the application of the formula would
be unjust or inappropriate in a particular case shall be
sufficient to rebut the presumption. The following criteria shall
be considered in making the finding:
' (1) Evidence of the other available resources of a parent;
' (2) The reasonable necessities of a parent;
' (3) The net income of a parent remaining after withholdings
required by law or as a condition of employment;
' (4) A parent's ability to borrow;
' (5) The number and needs of other dependents of a parent;
' (6) The special hardships of a parent including, but not
limited to, any medical circumstances of a parent affecting the
parent's ability to pay child support;
' (7) The needs of the child;
' (8) The desirability of the custodial parent remaining in the
home as a full-time parent and homemaker;
' (9) The tax consequences, if any, to both parents resulting
from spousal support awarded and determination of which parent
will name the child as a dependent; and
' (10) The financial advantage afforded a parent's household by
the income of a spouse or another person with whom the parent
lives in a relationship similar to husband and wife.
' { + SECTION 43. + } ORS 418.930 is amended to read:
' 418.930. Within one working day of the removal of a refugee
child, the State Office for Services to Children and Families
shall file a petition with the juvenile court containing, in
addition to the facts required by ORS { - 419B.242 or - }
419C.255 { + or section 4 of this 2001 Act + }, a specific and
detailed account of the circumstances which led the office to
conclude that the child was in imminent danger of serious
emotional or physical harm.
' { + SECTION 44. + } ORS 418.933 is amended to read:
' 418.933. (1) No refugee child shall remain out of the child's
home pursuant to ORS 418.927 for longer than five days unless
there has been a judicial determination supported by clear and
convincing evidence that:
' (a) Preventative or remedial services provided by the State
Office for Services to Children and Families have failed to
alleviate the need for removal; and
' (b) Return to the home will likely result in psychological or
physical damage to the child.
' (2) The State Office for Services to Children and Families
must include in its petition in addition to the material required
under ORS 418.930 and { - 419B.242 - } { + section 4 of this
2001 Act + } or { + ORS + } 419C.255, the following:
' (a) Specific actions the office is taking or has taken to
alleviate the need for removal.
' (b) Assurance that the office has complied with the placement
preferences of ORS 418.937.
' (c) Assurance that the office is making or has made diligent
efforts to locate and to give notice to all affected refugee
family members and to the Refugee Child Welfare Advisory
Committee of the pendency of the petition.
' { + SECTION 45. + } 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 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 { + and sections 5 to 13 of this 2001
Act + }. Rules of evidence shall be as in a hearing to establish
juvenile court jurisdiction and as defined in ORS 419B.310
{ - (4) - } { + (3) + } 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 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 to each agency subject to the order.
Upon receipt of a copy of the order, 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 have
indicated their compliance or in any event no later than six
weeks following the date the order 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, 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, except the original expunction order 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 of any juvenile court of appropriate
jurisdiction in this state issuing an order of expunction.
' (19) Upon entry of an expunction order, 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 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 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 and list of complying and
noncomplying agencies shall be released from confidentiality only
on order of the court originating the order of expunction, 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 46. + } ORS 419B.150 is amended to read:
' 419B.150. (1) A child may be taken into protective custody by
a peace officer, counselor, employee of the State Office for
Services to Children and Families or any other person authorized
by the juvenile court of the county in which the child is found,
in the following circumstances:
' (a) { - Where - } { + When + } the child's condition or
surroundings reasonably appear to be such as to jeopardize the
child's welfare;
' (b) { - Where - } { + When + } the juvenile court, by
order indorsed on the summons as provided in { - ORS
419B.271 - } { + section 13 of this 2001 Act + } or otherwise,
has ordered that the child be taken into protective custody; or
' (c) { - Where - } { + When + } it reasonably appears that
the child has run away from home.
' (2)(a) Before issuing an order under subsection (1)(b) of
this section, the court shall review an affidavit sworn on
information and belief provided by a peace officer, counselor or
employee of the State Office for Services to Children and
Families or other person authorized by the juvenile court that
sets forth with particularity the facts and circumstances on
which the request for protective custody is based and the
reasonable efforts or, if the Indian Child Welfare Act applies,
active efforts made by the office to eliminate the need for
protective custody of the child.
' (b) Except as provided in paragraph (c) of this subsection,
the court may not issue an order unless the court determines that
the office has made reasonable efforts or, if the Indian Child
Welfare Act applies, active efforts to eliminate the need for
protective custody of the child.
' (c) The court may issue an order even though no services have
been provided if the court finds that no existing services could
eliminate the need for protective custody of the child.
' (3) When a child is taken into protective custody as a
runaway under subsection (1) of this section, the peace officer
or other person who takes the child into custody:
' (a)(A) Shall release the child without unnecessary delay to
the custody of the child's parent or guardian or to a shelter
facility that has agreed to provide care and services to children
who have run away from home and that has been designated by the
juvenile court to provide such care and services; or
' (B) Shall follow the procedures described in ORS 419B.160,
419B.165, 419B.168 and 419B.171;
' (b) Shall, if possible, determine the preferences of the
child and the child's parent or guardian as to whether the best
interests of the child are better served by placement in a
shelter facility that has agreed to provide care and services to
children who have run away from home and that has been designated
by the juvenile court to provide such care and services or by
release to the child's parent or guardian; and
' (c) Notwithstanding ORS 419B.165 and subsection (1) of this
section, shall release the child to a shelter facility that has
agreed to provide care and services to children who have run away
from home and that has been designated by the juvenile court to
provide such care and services if it reasonably appears that the
child would not willingly remain at home if released to the
child's parent or guardian.
' { + SECTION 47. + } ORS 419B.150, as amended by section 2,
chapter 691, Oregon Laws 1999, is amended to read:
' 419B.150. (1) A child may be taken into protective custody by
a peace officer, counselor, employee of the State Office for
Services to Children and Families or any other person authorized
by the juvenile court of the county in which the child is found,
in the following circumstances:
' (a) { - Where - } { + When + } the child's condition or
surroundings reasonably appear to be such as to jeopardize the
child's welfare; or
' (b) { - Where - } { + When + } the juvenile court, by
order indorsed on the summons as provided in { - ORS
419B.271 - } { + section 13 of this 2001 Act + } or otherwise,
has ordered that the child be taken into protective custody.
' (2)(a) Before issuing an order under subsection (1)(b) of
this section, the court shall review an affidavit sworn on
information and belief provided by a peace officer, counselor or
employee of the State Office for Services to Children and
Families or other person authorized by the juvenile court that
sets forth with particularity the facts and circumstances on
which the request for protective custody is based and the
reasonable efforts or, if the Indian Child Welfare Act applies,
active efforts made by the office to eliminate the need for
protective custody of the child.
' (b) Except as provided in paragraph (c) of this subsection,
the court may not issue an order unless the court determines that
the office has made reasonable efforts or, if the Indian Child
Welfare Act applies, active efforts to eliminate the need for
protective custody of the child.
' (c) The court may issue an order even though no services have
been provided if the court finds that no existing services could
eliminate the need for protective custody of the child.
' { + SECTION 48. + } ORS 419B.282 is amended to read:
' 419B.282. (1) No person required to appear as provided in
{ - ORS 419B.265, 419B.268 and 419B.271 - } { + sections 5 to
13 of this 2001 Act + } shall without reasonable cause fail to
appear or, where directed in the summons, to bring the child
before the court.
' (2) If the summons cannot be served, if the person to whom
the summons is directed fails to obey it or if it appears to the
court that the summons will be ineffectual, the court may direct
issuance of a warrant of arrest against the person summoned or
against the child.
' { + SECTION 49. + } ORS 419B.385 is amended to read:
' 419B.385. A parent or legal guardian of any child found to be
within the jurisdiction of the court as provided in ORS 419B.100,
if such parent or guardian was served with summons under
{ - ORS 419B.265, 419B.268 and 419B.271 - } { + sections 5 to
13 of this 2001 Act + } prior to the adjudication, shall be
subject to the jurisdiction of the court for purposes of this
section. The court may order the parent or guardian to assist the
court in any reasonable manner in providing appropriate education
or counseling for the child.
' { + SECTION 50. + } 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 { + and sections 5 to 13 of this 2001 Act + }, 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 51. + } ORS 419B.555 is amended to read:
' 419B.555. (1) The juvenile court shall conduct a preliminary
hearing on the minor's application for emancipation within 10
days of the date on which it is filed or as soon as possible
thereafter. At the time of the preliminary hearing, the court may
issue a temporary custody decree, stay any pending proceedings or
enter any other temporary order appropriate to the circumstances.
No action of the court pursuant to this subsection may be
extended beyond the date set for a final hearing.
' (2) The final hearing shall be held no later than 60 days or
as soon as possible after the date on which the application is
filed.
' (3) Notice to the parent or parents of the applicant shall be
made pursuant to { - ORS 419B.265 (1), 419B.268 and
419B.271 - } { + sections 5 to 13 of this 2001 Act + }.
' (4) At the preliminary hearing, the court shall advise the
minor of the civil and criminal rights and civil and criminal
liabilities of an emancipated minor. This advice shall be recited
in the decree of emancipation.
' (5) The hearing mentioned in subsection (2) of this section
may be waived by the minor and parent or parents.
' (6) A uniform filing fee of $70 shall be charged and
collected by the court for each application for emancipation. In
addition, the court shall collect any other fees required by law.
' { + SECTION 52. + } ORS 477.745 is amended to read:
' 477.745. (1) In addition to any other remedy provided by law,
the parent or parents of an unemancipated minor child shall be
liable for costs incurred by the forester in suppressing fires on
forestland caused by such minor child. However, a parent who is
not entitled to legal custody of the minor child at the time of
the fire shall not be liable for such damages.
' (2) The legal obligation of the parent or parents of an
unemancipated minor child to pay damages under this section shall
be limited to not more than $5,000 payable to the forester for
one or more acts.
' (3) When an action is brought under this section on parental
responsibility for acts of their children, the parents shall be
named as defendants therein and, in addition, the minor child
shall be named as a defendant. The filing of an answer by the
parents shall remove any requirement that a guardian ad litem be
required.
' (4) Nothing in subsections (1) to (3) of this section applies
to:
' (a) Foster parents.
' (b) Parents who have filed a petition for the unemancipated
minor child under { - ORS 419B.230 - } { + section 4 of this
2001 Act + }.
' { + SECTION 53. + } ORS 419B.305 is amended to read:
' 419B.305. (1) Except as otherwise provided in this section,
no later than 60 days after a petition alleging that a child is
within the jurisdiction of the court under ORS 419B.100 has been
filed, the court shall hold a hearing on the petition and enter
an order under ORS 419B.325 (1). Upon written order supported by
factual findings of good cause, the court may continue a petition
beyond 60 days.
' (2) { - (a) - } No later than 30 days after a petition
alleging jurisdiction under ORS 419B.100 is filed { - : - }
' { - (A) - } all parties shall comply with ORS 419B.300
{ - ; and - }
' { - (B) Each person about whom allegations have been made
shall admit or deny the allegations - } .
' { - (b) - } { + (3) + } When a person denies allegations
in the petition, the court shall set the case for a hearing
within the time limits prescribed by subsection (1) of this
section. Upon written order supported by factual findings of good
cause, the court may continue the hearing beyond the 60-day time
limit.
' { - (3) - } { + (4) + } Upon expiration of any continuance
granted by this section, the court shall give a petition filed
under ORS 419B.100 that is beyond the time limit imposed by
subsection (1) of this section the highest priority on the court
docket.
' { + SECTION 54. + } ORS 419B.310 is amended to read:
' 419B.310. (1) The hearing shall be held by the court without
a jury and may be continued from time to time. During the hearing
of a case filed pursuant to ORS 419B.100, the court, on its own
motion or upon the motion of a party, may take testimony from any
child appearing as a witness and may exclude the child's parents
and other persons if the court finds such action would be likely
to be in the best interests of the child. However, the court
shall not exclude the attorney for each party and the testimony
shall be reported.
' { - (2) Where the court conducts any hearing, the court
shall inquire whether a child is an Indian child subject to the
Indian Child Welfare Act. If the court knows or has reason to
know that an Indian child is involved, the court shall enter an
order requiring the State Office for Services to Children and
Families to notify the Indian child's tribe of the pending
proceedings and of the tribe's right to intervene. - }
' { - (3) - } { + (2) + } Stenographic notes or other report
of the hearings shall be taken only when required by the court.
' { - (4) - } { + (3) + } The facts alleged in the petition
showing the child to be within the jurisdiction of the court as
provided in ORS 419B.100 (1), unless admitted, must be
established by a preponderance of competent evidence.
' { + SECTION 55. + } ORS 419B.315 is amended to read:
' 419B.315. (1) After the commencement of a proceeding under
ORS 419B.100 or 419B.500, a party may move the court for an order
allowing a deposition to be taken to perpetuate the testimony of
a witness who is:
' (a) Outside the jurisdiction of, or otherwise not subject to
the process of, the court; or
' (b) Unable to attend because of age, sickness, infirmity,
imprisonment or undue hardship.
' (2) The affidavit in support of the motion to take a
deposition to perpetuate testimony, in addition to setting forth
the reasons described in subsection (1)(a) and (b) of this
section, shall also set forth:
' (a) The reasons why the testimony of the witness sought to be
deposed cannot be taken by telephone at the time of the hearing;
' (b) Where the deposition is to be taken;
' (c) The manner of recording the deposition; and
' (d) A brief statement of the substance of the testimony that
the witness is expected to give.
' (3) If the court finds that taking a deposition will best
promote the just, speedy and inexpensive resolution of one or
more issues in the proceeding or that taking a deposition is
necessary to meet the requirements of due process, the court
shall grant the motion.
' (4) If the motion is granted, the court may, in its
discretion, set conditions regarding the time, place and method
of taking the deposition.
' { - (5) All objections to any testimony or evidence taken at
the deposition shall be made at the time and noted upon the
record. The court before which the testimony is offered shall
rule on any objections before the testimony is offered. Any
objection not made at the deposition is waived. - }
' { + SECTION 56. + } { + (1) ORS 419B.115, 419B.190,
419B.245, 419B.260, 419B.282, 419B.285, 419B.300, 419B.315 and
419B.320 are added to and made a part of sections 2 to 35 of this
2001 Act.
' (2) ORS 419B.280 is added to and made a part of sections 5 to
13 of this 2001 Act. + }
' { + SECTION 57. + } { + ORS 419B.230, 419B.233, 419B.236,
419B.239, 419B.242, 419B.265, 419B.268, 419B.271, 419B.274,
419B.277, 419B.317, 419B.420, 419B.423, 419B.426 and 419B.515 are
repealed. + } ' .
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