Chapter 231 Oregon Laws 2003

AN ACT

SB 72

Relating to juvenile dependency proceedings; amending ORS 109.119, 419B.116 and 419B.875.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 419B.875 is amended to read:

419B.875. (1) Parties to proceedings in the juvenile court under ORS 419B.100 and, except as provided in paragraph (h) of this subsection, under ORS 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;

(d) The state;

(e) The juvenile department;

(f) A court appointed special advocate, if appointed;

(g) The Department of Human Services or other child-caring agency if the agency has temporary custody of the child;

(h) An intervenor who is granted intervention under ORS 419B.116. An intervenor under this paragraph is not a party to a proceeding under ORS 419B.500;

(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.

(3) The rights of the parties include, but are not limited to:

(a) The right to notice of the proceeding and copies of the petitions, answers, motions and other papers;

(b) The right to appear with counsel and, except for intervenors under subsection (1)(h) of this section, to have counsel appointed as otherwise provided by law;

(d) The right of appeal; and

(e) The right to request a hearing.

(4)(a) A person granted rights of limited participation under ORS 419B.116 is not a party to a proceeding under ORS 419B.100 or 419B.500 but has only those rights specified in the order granting rights of limited participation. [The court may grant rights of limited participation to persons who are not parties under subsection (1) of this section. A person seeking rights of limited participation must file a motion for limited participation and an affidavit. The affidavit must be served on all parties no later than two weeks before a proceeding in the case in which participation is sought. The affidavit 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 grants the motion, the rights of limited participation are those specified in the court order.]

[(c)] (b) Persons moving for or granted rights of limited participation are not entitled to court-appointed counsel but may appear with retained counsel.

(5) If a foster parent, preadoptive parent or relative is currently providing care for a child, the Department of Human Services 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 when allowed to intervene, the foster parent, preadoptive parent or relative providing care for the child is not considered a party to the juvenile court proceeding solely because of notice and an opportunity to be heard.

(6) When a legal grandparent of a child requests in writing and provides a mailing address, the Department of Human Services shall give the legal grandparent notice of a hearing concerning the child and the court shall give the legal grandparent an opportunity to be heard. Except when allowed to intervene, a legal grandparent is not considered a party to the juvenile court proceeding solely because of notice and an opportunity to be heard.

(7) Interpreters for parties and persons granted rights of limited participation shall be appointed in the manner specified by ORS 45.275 and 45.285.

SECTION 2. ORS 419B.875, as amended by section 83, chapter 962, Oregon Laws 2001, is amended to read:

419B.875. (1) Parties to proceedings in the juvenile court under ORS 419B.100 and, except as provided in paragraph (h) of this subsection, under ORS 419B.500 are:

(a) The minor child;

(b) The legal parents or guardian of the child;

(d) The state;

(e) The juvenile department;

(f) A court appointed special advocate, if appointed;

(g) The Department of Human Services or other child-caring agency if the agency has temporary custody of the child;

(h) An intervenor who is granted intervention under ORS 419B.116. An intervenor under this paragraph is not a party to a proceeding under ORS 419B.500;

(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.

(3) The rights of the parties include, but are not limited to:

(a) The right to notice of the proceeding and copies of the petitions, answers, motions and other papers;

(b) The right to appear with counsel and, except for intervenors under subsection (1)(h) of this section, to have counsel appointed as otherwise provided by law;

(d) The right of appeal; and

(e) The right to request a hearing.

[(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 grants the motion, the rights of limited participation are those specified in the court order.]

[(c)] (b) Persons moving for or granted rights of limited participation are not entitled to appointed counsel but may appear with retained counsel.

(7) Interpreters for parties and persons granted rights of limited participation shall be appointed in the manner specified by ORS 45.275 and 45.285.

SECTION 3. ORS 419B.116 is amended to read:

419B.116. (1)(a) As used in this section, “caregiver relationship” means a relationship between a person and a child:

(A) That has existed:

(i) During the year preceding the initiation of the dependency proceeding;

(ii) For at least six months during the dependency proceeding; or

(iii) For half of the child’s life if the child is less than six months of age;

(B) In which the person had physical custody of the child or resided in the same household as the child;

(C) In which the person provided the child on a daily basis with the love, nurturing and other necessities required to meet the child’s psychological and physical needs; and

(D) On which the child depended to meet the child’s needs.

(b) “Caregiver relationship” does not include a relationship between a child and a person who is the nonrelated foster parent of the child unless the relationship continued for a period exceeding 12 months.

(2) A person asserting that the person has a caregiver relationship with a child may file a motion for intervention in a juvenile dependency proceeding.

(3) Filing a motion under subsection (2) of this section is the sole means by which a person may [intervene in] become a party to a juvenile dependency proceeding as an intervenor. An order granting intervention under this section is exclusively for juvenile dependency proceedings and does not confer standing or rights of intervention in any other action. Intervention is not allowed in proceedings under ORS 419B.500.

(4) A motion for intervention under subsection (2) of this section must state:

(a) The person’s relationship to the child and the person’s involvement in the child’s life;

(b) The reason that intervention is sought;

(c) How the person’s intervention is in the best interests of the child [and aids the court in carrying out the purposes of this chapter];

(d) Why the existing parties cannot adequately present the case; and

(e) What specific relief is being sought.

(5)(a) [A] If a party wishes to oppose a motion for intervention, the party must file a written objection to the motion stating the grounds for the objection no later than 21 days after the motion is filed. If no written objection is filed as provided in this paragraph, the court may grant the motion without a hearing. Except as provided in paragraph (b) of this subsection, if a written objection is filed as provided in this paragraph, the court shall hold a hearing on the motion.

(b) If a motion for intervention does not state a prima facie case as to the facts that must be proved under paragraph (c) of this subsection, the court may deny the motion without a hearing.

(c) If the court holds a hearing on the motion for intervention, the court may grant the motion for intervention if the person moving to intervene in [a] the case [must prove] proves by a preponderance of the evidence that:

[(a)] (A) A caregiver relationship exists between the person and the child;

[(b)] (B) The intervention is in the best interests of the child;

[(c) Intervention aids the court in carrying out the purposes of this chapter;]

[(d)] (C) The reason for intervention and the specific relief sought are consistent with the best interests of the child; and

[(e)] (D) The existing parties cannot adequately protect the best interests of the child without the intervention.

[(6) If the court finds that the motion for intervention is well founded, the court may grant the intervention or may grant rights of limited participation.]

[(7)(a)] (6) A person granted intervention is a party to the case and, except as provided in [paragraphs (b) and (c) of this] subsection (10) of this section, may be granted such relief as the court determines to be appropriate and in the best interests of the child.

(7) A person who is not a party under ORS 419B.875 may seek rights of limited participation by filing a written motion for limited participation in a juvenile court proceeding. The motion must state:

(a) The reason that limited participation is being sought;

(b) How the person’s limited participation is in the best interests of the child;

(c) Why the parties cannot adequately present the case; and

(d) The specific rights of limited participation that are being sought.

(8)(a) If a party wishes to oppose a motion filed under subsection (7) of this section, the party must file a written objection to the motion stating the grounds for the objection no later than 21 days after the motion is filed. If no written objection is filed as provided in this paragraph, the court may grant the motion without a hearing.

(b) If a motion seeking rights of limited participation does not state a prima facie case as to the facts that must be proved under paragraph (c) of this subsection, the court may deny the motion without a hearing.

(c) If the court holds a hearing on the motion seeking rights of limited participation, the court may grant the motion if the person seeking rights of limited participation proves by a preponderance of the evidence that:

(A) The person’s limited participation is in the best interests of the child;

(B) The reason for limited participation and the specific rights sought are consistent with the best interests of the child; and

(C) The parties cannot adequately present the case.

(9) If the court grants a motion under subsection (8) of this section, the court shall specify in the order the rights of limited participation that are being granted.

[(b)] (10)(a) At any time, a person granted intervention or a person [with] granted rights of limited participation may move to be considered a temporary placement or visitation resource for the child.

[(c)] (b) At any time after a court has determined at a permanency hearing that the permanent plan for the child should be something other than to return home, a person granted intervention may move to be considered the permanent placement resource for the child.

[(8)] (11) The court may modify or set aside any order granting intervention or rights of limited participation as provided in ORS [419B.420, 419B.423 and 419B.426] 419B.923.

SECTION 4. ORS 109.119 is amended to read:

109.119. (1) Except as otherwise provided in subsection (8) of this section, any person, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement[,] or guardianship [or wardship] of that child, or if no such proceedings are pending, may petition the court for the county in which the child resides, for an order providing for relief under subsection (3) of this section.

(2)(a) In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child.

(b) In an order granting relief under this section, the court shall include findings of fact supporting the rebuttal of the presumption described in paragraph (a) of this subsection.

(c) The presumption described in paragraph (a) of this subsection does not apply in a proceeding to modify an order granting relief under this section.

(3)(a) If the court determines that a child-parent relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by a preponderance of the evidence, the court shall grant custody, guardianship, right of visitation or other right to the person having the child-parent relationship, if to do so is in the best interest of the child. The court may determine temporary custody of the child or temporary visitation rights under this paragraph pending a final order.

(b) If the court determines that an ongoing personal relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by clear and convincing evidence, the court shall grant visitation or contact rights to the person having the ongoing personal relationship, if to do so is in the best interest of the child. The court may order temporary visitation or contact rights under this paragraph pending a final order.

(4)(a) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award visitation or contact rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:

(A) The petitioner or intervenor is or recently has been the child’s primary caretaker;

(B) Circumstances detrimental to the child exist if relief is denied;

(C) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor;

(D) Granting relief would not substantially interfere with the custodial relationship; or

(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

(b) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award custody, guardianship or other rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:

(A) The legal parent is unwilling or unable to care adequately for the child;

(B) The petitioner or intervenor is or recently has been the child’s primary caretaker;

(D) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or

(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

(5) In addition to the other rights granted under this section, a stepparent with a child-parent relationship who is a party in a dissolution proceeding may petition the court having jurisdiction for custody or visitation under this section or may petition the court for the county in which the child resides for adoption of the child. The stepparent may also file for post decree modification of a decree relating to child custody.

(6)(a) A motion for intervention filed under this section shall comply with ORCP 33 and state the grounds for relief under this section.

[(b)(A) A motion for intervention filed under ORS 419B.875 by a person other than a grandparent may be denied or a petition may be dismissed on the motion of any party or on the court’s own motion if the petition does not state a prima facie case of emotional ties creating a child-parent relationship or ongoing personal relationship or does not allege facts that the intervention is in the best interest of the child.]

[(B) A motion for intervention filed under ORS 419B.875 by a grandparent may be granted upon a finding by clear and convincing evidence that the intervention is in the best interests of the child.]

[(c)] (b) Costs for the representation of an intervenor under this section [or ORS 419B.875] may not be charged against funds appropriated for indigent defense services.

(7) In a proceeding under this section, the court may:

(a) Cause an investigation, examination or evaluation to be made under ORS 107.425 or may appoint an individual or a panel or may designate a program to assist the court in creating parenting plans or resolving disputes regarding parenting time and to assist the parties in creating and implementing parenting plans under ORS 107.425 (3).

(b) Assess against a party reasonable attorney fees and costs for the benefit of another party.

(8) This section does not apply to proceedings under ORS chapter 419B.

[(8)] (9) As used in this section:

(a) “Child-parent relationship” means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline, and which relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child’s psychological needs for a parent as well as the child’s physical needs. However, a relationship between a child and a person who is the nonrelated foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 12 months.

(b) “Circumstances detrimental to the child” includes but is not limited to circumstances that may cause psychological, emotional or physical harm to a child.

(d) “Legal parent” means a parent as defined in ORS 419A.004 whose rights have not been terminated under ORS 419B.500 to 419B.524.

(e) “Ongoing personal relationship” means a relationship with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality.

SECTION 5. ORS 109.119, as amended by section 1e, chapter 873, Oregon Laws 2001, is amended to read: