Chapter 579 Oregon Laws 2003

AN ACT

HB 3338

Relating to consent to adoption; creating new provisions; and amending ORS 109.324, 109.329 and 125.150.

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

SECTION 1. ORS 109.324 is amended to read:

109.324. (1) If either parent is believed to have willfully deserted the child or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption and such parent does not consent in writing to the adoption, there shall be served upon such parent a citation in accordance with ORS 109.330 to show cause why the adoption of the child should not be decreed. Upon hearing being had, if the court finds that such parent has willfully deserted the child or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption, the consent of such parent at the discretion of the court is not required and, if the court determines that such consent is not required, the court [shall have authority to] may proceed regardless of the objection of such parent.

(2) In determining whether the parent has willfully deserted the child or neglected without just and sufficient cause to provide proper care and maintenance for the child, the court may disregard incidental visitations, communications and contributions.

(3) In determining whether the parent has willfully deserted the child or neglected without just and sufficient cause to provide proper care and maintenance for the child, the court may consider, among other factors the court finds relevant, whether the custodial parent has attempted, without good cause shown, to prevent or to impede contact between the child and the parent whose parental rights would be terminated in an action under this section.

(4) This section does not apply where consent is given in loco parentis under ORS 109.316 or 109.318.

SECTION 2. ORS 109.329 is amended to read:

109.329. [If the person to be adopted is legally married or is 18 years of age or older, the written consent of the person to be adopted may be held by the court to be sufficient without the necessity for the consent of any other person to the adoption.] (1) Subject to subsection (2) of this section, any person may petition the circuit court for leave to adopt a person who is 18 years of age or older or who is legally married. The petition shall be accompanied by the written consent of each petitioner and the written consent of the person to be adopted. The written consents shall be filed with the petition.

(2) In addition to the written consents required under subsection (1) of this section, an adoption of a person who is 18 years of age or older or who is legally married is governed by the following:

(a) One petitioner or the person to be adopted must have resided in this state continuously for a period of six months prior to the filing of the petition; and

(b) The petition must be filed in the county in which one petitioner or the person to be adopted resides.

(3) The court may grant the petition if the court finds, from the allegations set forth in the petition and an attached affidavit, that each petitioner:

(a) Understands the significance and ramifications of the adoption; and

(b) Is not acting under duress, coercion or undue influence.

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

(a) Appoint counsel for each petitioner or for the person to be adopted or both or appoint a visitor, as provided in ORS 125.150. If the court appoints counsel or a visitor or both under this paragraph, the court shall apportion the costs among each petitioner and the person being adopted.

(b) Hold a hearing.

(c) On the court’s own motion, take testimony from or hold a conference with each petitioner and the person to be adopted. The court may hold a conference with one party and exclude the other party from the conference. In such a case, the court shall allow the attorney for the excluded party to attend the conference.

(d) Require that notice of the proceeding be provided by each petitioner to any or all of the following:

(A) The spouse of each petitioner.

(B) A person cohabiting with a petitioner who is interested in the affairs and welfare of the petitioner.

(C) The adult children of each petitioner.

(5) If, upon a petition for adoption presented and consented to in writing by each petitioner and the person to be adopted, the court is satisfied as to the identity and relations of each petitioner and the person to be adopted, that each petitioner understands the significance and ramifications of the adoption, that each petitioner is not acting under duress, coercion or undue influence and that it is fit and proper that the adoption be effected, a decree shall be made setting forth the facts and ordering that from the date of the decree, the person to be adopted, for all legal intents and purposes, is the child of the petitioner or petitioners.

(6) The provisions of ORS 109.308, 109.309, 109.342 and 109.353 do not apply to an adoption under this section.

SECTION 3. ORS 125.150, as amended by section 1, chapter 89, Oregon Laws 2003 (Enrolled House Bill 2309), is amended to read:

125.150. (1) The court shall appoint a visitor upon the filing of a petition in a protective proceeding that seeks the appointment of a guardian for an adult respondent or temporary fiduciary who will exercise the powers of a guardian for an adult respondent. The court may appoint a visitor in any other protective proceeding or in a proceeding under ORS 109.329.

(2) A visitor may be an officer, employee or special appointee of the court. The person appointed may not have any personal interest in the proceedings. The person appointed must have training or expertise adequate to allow the person to appropriately evaluate the functional capacity and needs of a respondent or protected person, or each petitioner and the person to be adopted under ORS 109.329. The court shall provide a copy of the petition and other filings in the proceedings that may be of assistance to the visitor.

(3) A visitor appointed by the court under this section shall interview a person nominated or appointed as fiduciary and the respondent or protected person, or each petitioner and the person to be adopted under ORS 109.329, personally at the place where the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, is located.

(4) Subject to any law relating to confidentiality, the visitor may interview any physician or psychologist who has examined the respondent or protected person, or each petitioner under ORS 109.329, the person or officer of the institution having the care, custody or control of the respondent or protected person, or each petitioner under ORS 109.329, and any other person who may have relevant information.

(5) If requested by a visitor under subsection (4) of this section, a physician or psychologist who has examined the respondent or protected person, or each petitioner under ORS 109.329, may, with patient authorization or in response to a court order in accordance with ORCP 44 or a subpoena under ORCP 55, provide any relevant information the physician or psychologist has regarding the respondent or protected person, or each petitioner under ORS 109.329.

(6) A visitor shall determine whether it appears that the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, is able to attend the hearing and, if able to attend, whether the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, is willing to attend the hearing.

(7) If a petition is filed seeking the appointment of a guardian for an adult respondent, a visitor shall investigate the following matters:

(a) The inability of the respondent to provide for the needs of the respondent with respect to physical health, food, clothing and shelter;

(b) The location of the respondent’s residence and the ability of the respondent to live in the residence while under guardianship;

(c) Alternatives to guardianship considered by the petitioner and reasons why those alternatives are not available;

(d) Health or social services provided to the respondent during the year preceding the filing of the petition, when the petitioner has information as to those services;

(e) The inability of the respondent to resist fraud or undue influence; and

(f) Whether the respondent’s inability to provide for the needs of the respondent is an isolated incident of negligence or improvidence, or whether a pattern exists.

(8) If a petition is filed seeking the appointment of a fiduciary, a visitor shall determine whether the respondent objects to:

(a) The appointment of a fiduciary; and

(b) The nominated fiduciary or prefers another person to act as fiduciary.

(9) If a petition is filed seeking the appointment of a conservator in addition to the appointment of a guardian, a visitor shall investigate whether the respondent is financially incapable. The visitor shall interview the person nominated to act as conservator and shall interview the respondent personally at the place where the respondent is located.

(10) A visitor shall determine whether the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, wishes to be represented by counsel and, if so, whether the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, has retained counsel and, if not, the name of an attorney the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, wishes to retain.

(11) If the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, has not retained counsel, a visitor shall determine whether the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, desires the court to appoint counsel.

(12) If the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, does not plan to retain counsel and has not requested the appointment of counsel by the court, a visitor shall determine whether the appointment of counsel would help to resolve the matter and whether appointment of counsel is necessary to protect the interests of the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329.

SECTION 4. ORS 125.150, as amended by section 5, chapter 227, Oregon Laws 2003 (Enrolled Senate Bill 32), is amended to read:

(4) Subject to any law relating to confidentiality, the visitor may interview any physician or psychologist who has examined the respondent or protected person, or each petitioner under ORS 109.329, the person or officer of the institution having the care, custody or control of the respondent or protected person, or each petitioner under ORS 109.329, and any other person who may have relevant information.

[(4)] (6) A visitor shall determine whether it appears that the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, is able to attend the hearing and, if able to attend, whether the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, is willing to attend the hearing.

[(5)] (7) If a petition is filed seeking the appointment of a guardian for an adult respondent, a visitor shall investigate the following matters:

(a) The inability of the respondent to provide for the needs of the respondent with respect to physical health, food, clothing and shelter;

(b) The location of the respondent’s residence and the ability of the respondent to live in the residence while under guardianship;

(d) Health or social services provided to the respondent during the year preceding the filing of the petition, when the petitioner has information as to those services;

(e) The inability of the respondent to resist fraud or undue influence; and

(f) Whether the respondent’s inability to provide for the needs of the respondent is an isolated incident of negligence or improvidence, or whether a pattern exists.

[(6)] (8) If a petition is filed seeking the appointment of a fiduciary, a visitor shall determine whether the respondent objects to:

(a) The appointment of a fiduciary; and

(b) The nominated fiduciary or prefers another person to act as fiduciary.

[(7)] (9) If a petition is filed seeking the appointment of a conservator in addition to the appointment of a guardian, a visitor shall investigate whether the respondent is financially incapable. The visitor shall interview the person nominated to act as conservator and shall interview the respondent personally at the place where the respondent is located.

[(8)] (10) A visitor shall determine whether the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, wishes to be represented by counsel and, if so, whether the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, has retained counsel and, if not, the name of an attorney the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, wishes to retain.

[(9)] (11) If the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, has not retained counsel, a visitor shall determine whether the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, desires the court to appoint counsel.

[(10)] (12) If the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329, does not plan to retain counsel and has not requested the appointment of counsel by the court, a visitor shall determine whether the appointment of counsel would help to resolve the matter and whether appointment of counsel is necessary to protect the interests of the respondent or protected person, or each petitioner or the person to be adopted under ORS 109.329.

SECTION 5. The amendments to ORS 109.324, 109.329 and 125.150 by sections 1 to 4 of this 2003 Act apply to petitions for adoption filed on or after the effective date of this 2003 Act.

Approved by the Governor July 17, 2003

Filed in the office of Secretary of State July 18, 2003

Effective date January 1, 2004

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