71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 2301
 
                         Senate Bill 557
 
Sponsored by Senator GEORGE
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Eliminates authority to take child into protective custody on
basis that child's condition or surroundings appear to jeopardize
child's welfare. Requires court order to take child into
protective custody for those reasons unless exigent circumstances
exist. Defines exigent circumstances.
 
                        A BILL FOR AN ACT
Relating to protective custody; amending ORS 419B.150 and
  419B.185.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. 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 the child's condition or surroundings
reasonably appear to be such as to jeopardize the child's
welfare; - }
    { - (b) - }  { +  (a) + }   { - Where - }   { + When  + }the
juvenile court, by order indorsed on the summons as provided in
ORS 419B.271 or otherwise, has ordered that the child be taken
into protective custody; or
    { - (c) - }  { +  (b) + }   { - Where - }   { + When + } it
reasonably appears that the child has run away from home.
  (2)(a) Before issuing an order under subsection
 { - (1)(b) - }  { +  (1)(a) + } 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 { + :
  (A) + } 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 { + ; and
  (B) There is probable cause to believe that the child's
condition or surroundings are such as to jeopardize the child's
welfare + }.
  (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)(a) Notwithstanding subsection (1) of this section, a
peace officer, counselor, employee of the State Office for
Services to Children and Families or a person authorized by the
juvenile court may take a child into protective custody in the
absence of a court order if exigent circumstances exist.
  (b) For purposes of this subsection, 'exigent circumstances'
exist when, due to the action of a parent of the child, the child
is in present or imminent risk of death or physical injury or of
suffering severe and lasting psychological trauma. + }
    { - (3) - }   { + (4) + } 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 2. 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 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 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 { + :
  (A) + } 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 { + ; and
  (B) There is probable cause to believe that the child's
condition or surroundings are such as to jeopardize the child's
welfare + }.
  (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)(a) Notwithstanding subsection (1) of this section, a
peace officer, counselor, employee of the State Office for
Services to Children and Families or a person authorized by the
juvenile court may take a child into protective custody in the
absence of a court order if exigent circumstances exist.
  (b) For purposes of this subsection, 'exigent circumstances'
exist when, due to the action of a parent of the child, the child
is in present or imminent risk of death or physical injury or of
suffering severe and lasting psychological trauma. + }
  SECTION 3. ORS 419B.185 is amended to read:
  419B.185. (1) { + (a) + } When the child is taken, or is about
to be taken, into protective custody pursuant to ORS 419B.160,
419B.165, 419B.168 and 419B.171 and placed in detention or
shelter care, a parent or child { + :
  (A) + } Shall be given the opportunity to present evidence to
the court at the   { - hearings - }   { + hearing + } specified
in ORS 419B.183, and at any subsequent review hearing, that the
child can be returned home without further danger of suffering
physical injury or emotional harm, endangering or harming others,
or not remaining within the reach of the court process prior to
adjudication { + ; and
  (B) At the hearing specified in ORS 419B.183, may request that
the court review the legal and factual bases upon which an order
was issued directing that the child be taken into protective
custody or upon which the child was taken into protective custody
in the absence of an order + }.
   { +  (b) + } At the hearing:
    { - (a) - }  { +  (A) + } The court shall make written
findings as to 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 prevent or eliminate the
need for removal of the child from the home and to make it
possible for the child to safely return home. When the court
finds that no services were provided but that reasonable services
would not have eliminated the need for protective custody, the
court shall consider the office to have made reasonable efforts
or, if the Indian Child Welfare Act applies, active efforts to
prevent or eliminate the need for protective custody. { +  If a
parent or child has requested the court to make a review under
paragraph (a)(B) of this subsection, the court shall make written
findings as to whether probable cause for protective custody
existed or, if the child was taken into protective custody in the
absence of an order, whether exigent circumstances as defined in
ORS 419B.150 existed. + }
    { - (b) - }  { +  (B) + } In determining whether a child
shall be removed or continued out of home, the court shall
consider whether the provision of reasonable services can prevent
or eliminate the need to separate the family.
    { - (c) - }  { +  (C) + } In determining whether the office
has made reasonable efforts or, if the Indian Child Welfare Act
applies, active efforts to prevent or eliminate the need for
removal of the child from the home or to make it possible for the
child to safely return home, the court shall consider the child's
health and safety the paramount concerns.
    { - (d) - }  { +  (D) + } The court shall make a written
finding in every order of removal that it is in the best interest
 
and for the welfare of the child that the child be removed from
the home or continued in care.
    { - (e) - }  { +  (E) + } The court shall determine whether
the child is an Indian child as defined in ORS 419A.004 or in the
applicable State-Tribal Indian Child Welfare Agreement.
  (2) To aid the court in making the findings required by
subsection   { - (1)(a) - }  { +  (1)(b) + } of this section, the
office shall present documentation to the court outlining the
reasonable or active efforts made to prevent taking the child
into protective custody and to provide services to make it
possible for the child to safely return home.
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